ASSET PURCHASE AGREEMENT
BY AND AMONG
SHILOH DIE CAST MIDWEST LLC
AND
contech castings, LLC
and
Contech castingS real estate holdings, llc
Dated as of June 11, 2013
Table of Contents
Page
|
|
|
|
ARTICLE II
|
PURCHASE AND SALE; Closing
|
|
|
|
|
2.3
|
Assumed Liabilities
11
|
|
|
|
|
2.4
|
Excluded Liabilities
12
|
|
|
|
|
2.5
|
Non-Transferable Contracts and Permits
13
|
|
|
|
|
2.6
|
Purchase Price; Purchase Price Adjustment
13
|
|
|
|
|
2.7
|
Owned Real Property Closing Procedures
18
|
|
|
|
|
ARTICLE III
|
REPRESENTATIONS AND WARRANTIES OF Seller
|
|
|
|
|
3.4
|
Consents and Approvals; Governmental Authority Relative to This Agreement
22
|
|
|
|
|
3.5
|
Compliance With Laws
22
|
|
|
|
|
3.6
|
Title; Sufficiency.
22
|
|
|
|
|
3.8
|
Permits and Licenses
23
|
|
|
|
|
3.9
|
Acquired Contracts
23
|
|
|
|
|
3.11
|
Labor Matters; Benefit Plans and Benefit Programs and Agreements
24
|
|
|
|
|
3.12
|
Non-Governmental Consents
24
|
|
|
|
|
3.13
|
Employee Benefits
25
|
|
|
|
|
3.15
|
Intellectual Property
26
|
|
|
|
|
3.18
|
Environmental Matters
27
|
|
|
|
|
3.19
|
Brokers and Finders
29
|
|
|
|
|
3.20
|
No Additional Severance
29
|
|
|
|
|
3.21
|
Fraudulent Conveyance
29
|
|
|
|
|
3.25
|
Suppliers; Raw Materials
30
|
|
|
|
|
3.26
|
Product Warranties
30
|
|
|
|
|
3.27
|
Absence of Certain Business Practices
30
|
|
|
|
|
3.28
|
Operation of the Business
30
|
|
|
|
|
3.30
|
Disclaimer of Additional Representations and Warranties
31
|
|
|
|
|
ARTICLE IV
|
REPRESENTATIONS AND WARRANTIES OF PURCHASER
|
|
|
|
|
4.3
|
Consents and Approvals; No Violations
32
|
|
|
|
|
4.4
|
Purchaser’s Examination
32
|
|
|
|
|
4.5
|
Investigation; Limitation on Warranties.
32
|
|
|
|
|
4.7
|
Brokers and Finders
33
|
|
|
|
|
5.1
|
Access to Information and Facilities
33
|
|
|
|
|
5.2
|
Preservation of Business
34
|
|
|
|
|
5.4
|
Preservation of Records; Post-Closing Access and Cooperation
34
|
|
|
|
|
5.5
|
Employees and Benefits
34
|
|
|
|
|
5.7
|
Public Announcements
41
|
|
|
|
|
5.9
|
Information and Access
42
|
|
|
|
|
5.11
|
Negative Covenants
42
|
|
|
|
|
5.12
|
Governmental Approvals
43
|
|
|
|
|
5.13
|
Notices of Certain Events
43
|
|
|
|
|
5.14
|
Limited Shop Period
43
|
|
|
|
|
5.16
|
Injunctive Relief
44
|
|
|
|
|
5.17
|
Update of Schedules
45
|
|
|
|
|
ARTICLE VI
|
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
|
|
|
|
|
6.1
|
Warranties True as of Present Date
45
|
|
|
|
|
6.2
|
Compliance with Agreements, Covenant and Disclosure Schedule
45
|
|
|
|
|
6.4
|
Court Approval/Waiver
46
|
|
|
|
|
6.5
|
Receipt of Consents
46
|
|
|
|
|
6.6
|
Officer Certificates
46
|
|
|
|
|
6.8
|
Acquired Contracts; Disclosure Schedules
46
|
|
|
|
|
6.9
|
Transfer Documents
47
|
|
|
|
|
6.11
|
Insurance Certificate
47
|
|
|
|
|
6.12
|
Environmental Site Assessments
47
|
|
|
|
|
6.14
|
General Escrow
…………….48
|
|
|
|
|
6.15
|
Pension Benefit Guaranty Corporation
48
|
|
|
|
|
6.16
|
Bankruptcy Order Finality
49
|
|
|
|
|
ARTICLE VII
|
CONDITIONS PRECEDENT TO OBLIGATIONS OF Seller
|
|
|
|
|
7.1
|
Warranties True as of Present Date
49
|
|
|
|
|
7.2
|
Compliance with Agreements and Covenants
49
|
|
|
|
|
7.4
|
Pension Benefit Guaranty Corporation
49
|
|
|
|
|
7.5
|
Customer Agreements
50
|
|
|
|
|
ARTICLE VIII
|
SALE PROCESS
|
|
|
|
|
9.3
|
Effect of Termination
53
|
|
|
|
|
ARTICLE X
|
SURVIVAL AND REMEDY; INDEMNIFICATION
|
|
|
|
|
10.2
|
Indemnification by Sellers
54
|
|
|
|
|
10.3
|
Indemnification by Purchaser
54
|
|
|
|
|
10.4
|
Intentionally Omitted
55
|
|
|
|
|
10.5
|
Third-Party Claims
55
|
|
|
|
|
10.6
|
Procedure for Other Claims
56
|
|
|
|
|
10.7
|
Indemnification Limits
56
|
|
|
|
|
11.7
|
Binding Agreement
59
|
|
|
|
|
11.9
|
Third Party Beneficiaries
60
|
|
|
|
|
11.10
|
Further Assurances
60
|
|
|
|
|
11.11
|
Entire Understanding
60
|
|
|
|
|
11.12
|
Jurisdiction of Disputes
60
|
|
|
|
|
11.13
|
WAIVER OF JURY TRIAL
61
|
|
|
|
|
11.14
|
Disclosure Schedule
61
|
|
|
|
|
11.18
|
Further Assurances
62
|
|
|
|
|
11.19
|
Access to Books and Records
62
|
|
|
|
|
11.20
|
Litigation Assistance
63
|
|
|
|
|
11.21
|
Bulk Sales Law Waiver
63
|
|
|
|
|
11.22
|
Accounts Receivable
63
|
|
|
|
|
11.23
|
Contech Trademarks and Tradenames
63
|
|
|
|
|
11.24
|
Dowagiac Tooling
63
|
SCHEDULES
[
See Attached List
]
EXHIBITS
[
To come
]
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of June 11, 2013, by and among Shiloh Die Cast Midwest LLC, an Ohio limited liability company (“
Purchaser
”), Contech Castings, LLC, a Delaware limited liability company (“
Seller
”) and Contech Castings Real Estate Holdings, LLC, a Delaware limited liability company (“Real Estate Seller”) (the “Seller” and the “Real Estate Seller” are sometimes collectively referred to herein as the “Sellers”). Certain capitalized terms used herein are defined in
Article I
.
W I T N E S S E T H:
WHEREAS, Seller is engaged in the conduct of the Business (as defined below) at the Facilities (as defined below);
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser, certain of the assets of the Business currently located at the Facilities, for the consideration and upon the terms and conditions contained in this Agreement;
WHEREAS, Purchaser further desires to assume from Seller, as part of the asset acquisition under this Agreement, only the specifically identified Assumed Liabilities (as hereinafter defined) related to the Business;
WHEREAS, Real Estate Seller is the wholly owned subsidiary of Seller which owns the Owned Real Property contemplated by this transaction and as such only represents and warrants as to certain specific items related to the Owned Real Property and the Real Estate Seller’s authority and organization as provided herein; and
WHEREAS, Purchaser acknowledges that Seller has additional manufacturing facilities and that the assets and liabilities associated with Seller’s additional manufacturing facilities and all Excluded Liabilities related to the Business and any and all liabilities of the Seller that are not Assumed Liabilities are not part of the transaction contemplated herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties contained herein, and for their mutual reliance, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.
Definitions
. The following terms shall have the following meanings for the purposes of this Agreement:
“
Acquired Contracts
” shall have the meaning set forth in
Section 2.1(c)
.
“
Acquired Intellectual Property Rights
” shall have the meaning set forth in
Section 2.1(m)
.
“
Acquired Inventories
” shall have the meaning set forth in
Section 2.1(d)
.
“
Acquired Personal Property Leases
” shall have the meaning set forth in
Section 2.1(g).
“
Acquired Real Property Leases
” shall have the meaning set forth in
Section 2.1(f)
“
Affiliate
” shall mean, with respect to any specified Person, any other Person which, directly or indirectly, controls, is under common control with, or is controlled by, such specified Person.
“
Agreement
” shall mean this Agreement, including the Disclosure Schedule and all other exhibits and schedules hereto, as it and they may be amended from time to time.
“
Alternative Arrangements
” shall have the meaning set forth in
Section 10.7(d).
“
Alternative Transaction
” shall mean any sale transaction of all or substantially all of the Purchased Assets, whether as a whole or on a plant-by-plant basis, to one or more purchasers simultaneously, consistent generally with the terms of this Agreement, to persons or entities other than the Purchaser or its Affiliates in accordance with the procedures set forth in
Section 8.1
.
“
Applicable Laws
” shall mean all laws, statutes, orders, rules, and regulations of Governmental Authorities, and judgments, decisions or orders entered by any Governmental Authority applicable to Seller or the Business, including all fraudulent transfer, fraudulent conveyance and bankruptcy laws.
“
Assumed Liabilities
” shall have the meaning set forth in
Section 2.3
.
“
Bankruptcy Case
” shall have the meaning set forth in
Section 5.6(c)
.“Bankruptcy Court” shall have the meaning set forth in
Section 5.6(c)
.
“
Bankruptcy Order
” shall have the meaning set forth in
Section 6.4
.
“
Benefit Plans
” shall mean (i) any “employee welfare benefit plan” or “employee pension benefit plan” (as those terms are respectively defined in
Sections 3(1)
and
3(2)
of ERISA), other than a Multiemployer Plan,; and (ii) any retirement or deferred compensation plan, incentive compensation plan, stock plan, share appreciation right, unemployment compensation plan, vacation pay, severance pay, bonus arrangement, health benefit plan, profit-sharing plan, death or disability plan or any other fringe benefit arrangements in each case in which any Employees participate.
“
Bill of Sale
” shall have the meaning set forth in
Section 2.8(b)(i).
“
Business
” shall mean the business of die casting and machining motor vehicle parts, and further producing engineered high pressure aluminum die cast and machined parts for the automotive industry, as conducted by Seller at the Facilities, including the Dowagiac facility, as of the date of this Agreement.
“
Business Day
” shall mean any day other than a Saturday, Sunday or other day on which banking institutions in the State of New York are authorized or required by law or other action of a Governmental Authority to close.
“
Cash
” shall mean the aggregate amount of cash, cash equivalents, marketable securities and instruments and deposits of Seller, including checks and payments in transit and overdrafts.
“
Clarksville Plant
” shall mean the facility at 901 Alfred Thun Road, Clarksville, TN 37040.
“
Closing
” shall mean the consummation of the transactions contemplated herein.
“
Closing Date
” shall have the meaning set forth in
Section 2.8(a).
“
Code
” shall mean the Internal Revenue Code of 1986, as amended.
“
Contamination
” or “
Contaminated
” shall mean the presence of Hazardous Substances, hazardous materials or hazardous waste in, on or under the soil, groundwater, surface water or other environmental media to an extent that any Response Action is required by any Governmental Authority under any
Environmental Law with respect to such presence of Hazardous Substances, hazardous materials or hazardous waste.
“
Designated Contacts
” shall have the meaning set forth in
Section 5.1(a).
“
Disclosure Schedule
” shall mean the Disclosure Schedule delivered by Seller to Purchaser after the execution of this Agreement, but prior to Closing, all as amended, modified or supplemented by Seller and Real Estate Seller in accordance with this Agreement and all as approved by the Purchaser in its sole but reasonable discretion.
“
Employees
” shall have the meaning set forth in
Section 3.16
.
“
Environmental Claim
” means any written notice, claim, demand, action, suit, complaint, proceeding or other communication by any Person alleging any violation of, or liability or potential liability under or relating to any Environmental Law.
“
Environmental Law
” shall mean any federal, state or local statute, order, regulation or ordinance pertaining to the protection of the environment, public health, safety, natural resources, conservation or waste management and any applicable orders, judgments, directives, decrees, permits, licenses or other authorizations or mandates under such laws, each as in existence on the date hereof, including but not limited to RCRA, CERCLA, OSHA, The Clean Air Act and The Clean Water Act and all related local and state laws.
“
ERISA
” shall mean the Employee Retirement Income Security Act of 1974, as amended.
“
Estimated Closing Net Working Capital
” has the meaning given such term in
Section 2.6(c)(i)
.
“
Estimated Negative Net Working Capital Adjustment Amount
” has the meaning given such term in
Section 2.6(c)(i)
.
“
Estimated Positive Net Working Capital Adjustment Amount
” has the meaning given such term in
Section 2.6(c)(i)
.
“
Excluded Assets
” shall have the meaning set forth in
Section 2.2
.
“
Excluded Liabilities
” shall have the meaning set forth in
Section 2.4
.
“
Extended Representation and Warranty Indemnification Period
” shall have the meaning set forth in
Section 10.1(b)
.
“
Facilities
” shall mean that facilities leased by Seller from the Real Estate Seller who owns such leased Facilities and which are located at 5 Arnolt Drive, Pierceton, Kosciusko County, IN 46562; 901 Alfred Thun Road, Clarksville, TN 37040;
250 Adams Avenue, Alma, Gratiot County, MI 48801
;
1200 Power Drive, Auburn, DeKalb County, IN 46706; and specifically excludes the Dowagiac, Cass County, MI 49047 facility.
“
Final Closing Net Working Capital
” has the meaning given such term in
Section
2.6(c)(ii)
.
“
GAAP
” shall mean U.S. generally accepted accounting principles, as in effect from time to time, consistently applied by Seller in accordance with its historical practices.
“
Governmental Authority
” shall mean any U.S., state, local or foreign governmental, regulatory or administrative body, agency or authority, any court or judicial authority or arbitration tribunal, whether national, Federal, state or local or otherwise, or any Person lawfully empowered by any of the foregoing to
enforce or seek compliance with any applicable law, statute, regulation, order or decree, including but not limited to all Environmental Laws and all bankruptcy laws.
“
Hazardous Substances
” shall mean petroleum, any petroleum-based product, radon, flammable explosives, asbestos, polychlorinated biphenyls and any hazardous, toxic or radioactive substance, material or waste as such terms are defined, listed or regulated under any Environmental Law.
“
Hired Employees
” shall have the meaning set forth in
Section 5.5(a)
.
“
Indemnitee
” shall have the meaning set forth in
Section 10.5
.
“
Indemnitor
” shall have the meaning set forth in
Section 10.5
.
“
Intellectual Property Rights
” means all of the following in any jurisdiction throughout the world: (a) patents, patent applications, patent disclosures and statutory invention registrations, including reissues, provisionals, divisions, continuations, continuations in part, extensions and reexaminations thereof, all rights therein provided by international treaties or conventions; (b) trademarks (including the “Thintech” trademark/tradename), service marks, trade dress, trade names, logos (and all translations, adaptations, derivations and combinations of the foregoing) and Internet domain names, together with all goodwill associated with each of the foregoing, any and all common law rights, and registrations and applications for registration thereof, all rights therein provided by international treaties or conventions, and all reissues, extensions and renewals of any of the foregoing; (c) copyrightable works (including computer software source code, executable code, databases and related documentation and maskworks), copyrights, whether or not registered, and registrations and applications for registration thereof, and all rights therein provided by international treaties or conventions; and (d) confidential and proprietary information, including trade secrets, unpatented inventions, data and know-how.
“
Knowledge
” shall mean, as applicable with respect to Seller and/or Real Estate Seller, the actual knowledge of Seller and/or Real Estate Seller, including their officers, directors, members, and the following management personnel: David Jaeger, George Hoffmeister, Myra Moreland, Brad Farver, Tom Sullivan and each plant manager of each Facility.
“
Leased Real Property
” shall have the meaning set forth in
Section 3.17(b)
.
“
Lien
” shall mean all liens, encumbrances, mortgages, charges, claims, restrictions, pledges, security interests, title defects, easements, rights of way, covenants and encroachments.
“
Loss
” or “
Losses
” shall mean any and all actually incurred out-of-pocket losses, liabilities, deficiencies, fines, costs, provable damages, penalties and reasonable and documented expenses (including incurred out-of-pocket reasonable and documented attorneys’ fees and expenses and litigation, settlement and judgment and interest costs), and any reasonable and documented legal or other expenses reasonably incurred in connection with investigating or defending any claims or actions but not including special, speculative, punitive, indirect, incidental, or consequential damages or damages relating to business interruption or lost profits (even if advised of the possibility thereof), and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in the calculating the amount of any Losses. All Losses shall be net of any other recoveries realized or to be realized by an Indemnitee and its Affiliates, including pursuant to Alternative Arrangements and any Tax Advantages.
“
Material
” for purposes of a breach or series of breaches under
Sections 3.4
,
3.8
,
3.9
,
3.11
,
3.12
,
3.14
,
3.22
and
3.29
shall mean a single breach that results in a claim for damages of Twenty-Five Thousand Dollars
($25,000) or more; or a series of breaches and/or claims related thereto that add up to Twenty-Five Thousand Dollars ($25,000) or more.
“
Material Adverse Effect
” shall mean (A) a change, event or occurrence that has a material adverse effect on the financial condition or results of operations of the Business, or the Purchased Assets, or Disclosure Schedules, taken as a whole; and/or (B) a ruling, decision or order of the Bankruptcy Court that prohibits or restricts the consummation of the transactions contemplated by this Agreement;
provided
,
however
, that in determining whether there has been a Material Adverse Effect or whether a Material Adverse Effect could or would occur, any change, event or occurrence principally attributable to, arising out of, or resulting from any of the following shall be disregarded: (i) general economic, business, industry or credit, financial or capital market conditions (whether in the United States or internationally), including conditions affecting generally the industries served by the Business; (ii) the taking of any action required or permitted by this Agreement or the Related Agreements; (iii) the negotiation, entry into and announcement of this Agreement or pendency of the transactions contemplated hereby, including any suit, action or proceeding relating to the transactions contemplated hereby, (iv) the breach of this Agreement or any Related Agreement by Purchaser, (v) the taking of any action with the written approval of Purchaser, (vi) pandemics, earthquakes, tornados, hurricanes, floods and acts of God, (vii) acts of war (whether declared or not declared), sabotage, terrorism, military actions or the escalation thereof; (viii) any changes or prospective changes in applicable laws, regulations or accounting rules, including GAAP or interpretations thereof, or any changes or prospective changes in the interpretation or enforcement of any of the foregoing, or any changes in general legal, regulatory or political conditions; (ix) any existing event, occurrence or circumstance with respect to which Purchaser has actual knowledge as of the date hereof (including any matter set forth in the Disclosure Schedule); and (x) any adverse change in or effect on the Business that is cured before the earlier of the Closing Date and termination of this Agreement as set forth in
Article IX
;
“
Multiemployer Plan
” shall have the meaning set forth in
Section 3(37)
of the Code.
“
Net Working Capital
” shall mean, as of a specified date and calculated as set forth on Exhibit A in accordance with GAAP consistently applied by the Seller prior to the Closing: (i) the sum of the dollar amounts, as adjusted for aged or potentially uncollectible or unrealized amounts, of the following current asset accounts of the Seller: accounts receivable, inventories, other agreed to current assets and prepaid expenses, less (ii) the sum of the dollar amounts of the following current liability accounts of the Seller: accounts payable, accrued expenses and the current portion of other agreed to deferred liabilities. In no event will Net Working Capital include any portion of any debt, capital lease obligations, transaction expenses (or any “prepaid” or other asset created as the result of the payment of a transaction expense) or any cash and cash equivalents, other than deposits as provided herein.
“
Net Working Capital Target
” shall have the meaning set forth in
Section 2.6(c)
.
“
Owned Real Property
” shall have the meaning set forth in
Section 3.17
and specifically excludes the Dowagiac, Michigan facility.
“
PBGC Agreement
” shall have the meaning set forth in
Sections 6.16 and 7.4
.
“
PBGC Obligations
” shall mean the stated One Million One Hundred Fifteen Thousand Two Hundred Thirty-One Dollars ($1,115,231) lien filed by the Pension Benefit Guaranty Corporation (“PBGC”) against the assets of the Seller on or about April 8, 2013 related to the Hillsdale Hourly Pension Plan (the “Pension Plan”) and any and all other liens and any and all of the future unpaid and/or accrued funding obligations, contributions and/or liabilities to the Pension Plan or any pension plans (including the following three (3)
pension plans: Metavation Salaried, FourSlides and Fairfield) and/or Sellers’ responsibility as controlled group members related thereto.
“
Permits” and “Licenses
” shall have the meaning(s) set forth in
Section 2.1(h)
“
Permitted Liens
” shall mean (a) Liens for Taxes, assessments and governmental charges or levies not yet delinquent or for which adequate reserves are maintained on the financial statements of Seller as of the Closing Date; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens and other similar liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business consistent with past practice; (e) survey exceptions, reciprocal easement agreements and other similar restrictions on the real property; (f) all applicable zoning, entitlement, conservation restrictions and other land use and environmental regulations; (g) all exceptions, restrictions, easements, charges and rights-of-way set forth in any permits, any deed restrictions, groundwater or land use limitations or other institutional controls utilized in connection with any required environmental remedial actions, or other state, local or municipal franchise applicable to Seller or any of its respective properties; and (h) Liens which shall be removed prior to or at the Closing.
“
Person
” shall mean an individual, corporation, partnership, joint venture, trust, association, estate, joint stock company, limited liability company, Governmental Authority or any other organization of any kind.
“
Purchased Assets
” shall have the meaning set forth in
Section 2.1
.
“
Purchased Equipment
” shall have the meaning set forth in
Section 2.1(a)
.
“
Purchase Price
” shall have the meaning set forth in
Section 2.6(b)
.
“
Purchaser
” shall have the meaning set forth in the preamble.
“
Related Agreements
” shall mean the Bill of Sale, the IP Assignments, the Real Property Lease Assignments, the Personal Property Lease Assignments and the Transition Services Agreement.
“
Remaining Schedules
” shall have the meaning set forth in
Section 5.17
.
“
Response Action
” shall mean any action taken to investigate, abate, remediate, remove or mitigate any violation of Environmental Law, any Contamination of any property owned, leased or used by the Business or any release or threatened release of Hazardous Substances including hazardous wastes and hazardous materials. Without limitation, Response Action shall include any action that would be a response as defined by the Comprehensive Environmental Response, Compensation and Liability Act, as amended at the date of Closing, 42 U.S.C. §9601(25).
“
Seller
” shall have the meaning set forth in the preamble.
“
Special Representations and Warranties
” shall have the meaning set forth in
Section 10.1(b)
.
“
Standard Representation and Warranty Indemnification Period
” shall have the meaning set forth in
Section 10.1(a)
.
“
Tax
” (and, with correlative meaning, “
Taxes
,” “
Taxable
” and “
Taxing
”) means any income, capital gains, franchise, gross income, single business, Michigan business or other state taxes, gross receipts, sales, use, transfer, ad valorem, franchise, profits, license, capital, withholding, payroll, deferred compensation (including Code Section 409A), estimated, employment, excise, goods and services, severance, stamp, occupation, premium, property, social security, environmental (including Code Section 59A), alternative or add-on, value added, registration, windfall profits or other taxes, duties, charges, fees, levies or other assessments imposed by any Governmental Authority, or any interest, penalties, or additions to tax incurred under Applicable Laws with respect to taxes.
“
Tax Advantage
” shall mean the value of any Tax refund, credit or reduction in Tax payments, including any interest payable thereon;
provided
, that with respect to any such Tax refund, credit or reduction that is realized over more than one Taxable year, the value of such Tax refund, credit or reduction shall be the present value of such refund, credit or reduction, which present value shall be computed as of the first date on which the right to the refund, credit or other reduction arises or is reasonably estimated to be actually utilized, (i) using the Tax rate applicable to the highest level of income with respect to such Tax under applicable Tax laws on such date and (ii) using an interest rate equal to the appropriate “applicable federal rate” as defined in Section 1274(d) of the Code on such date.
“
Tax Returns
” shall mean any report, return (including any information return), declaration or other filing required or permitted to be supplied to any Taxing authority or jurisdiction with respect to Taxes, including any amendments or attachments to such reports, returns, declarations or other filings.
“
Termination Date
” shall have the meaning set forth in
Section 9.1(b)
.
“
Transition Services Agreement
” shall have the meaning set forth in
Section 2.8(b)(viii)
.
“
WARN Act
” shall mean the Worker Adjustment and Retraining Notification Act of 1988, as amended.
“
Working Capital Escrow
” shall have the meaning set forth in
Section 2.6(c)(iv)
.
ARTICLE II
PURCHASE AND SALE; Closing
2.
Purchase and Sale
. Upon the terms and subject to the conditions set forth in this Agreement, including
Section 2.6
hereof, at the Closing, Seller, and with respect to
Section 2.1(e)
only, Real Estate Seller, shall sell, convey, transfer, assign and deliver to Purchaser, and Purchaser shall purchase and accept from Seller and Real Estate Seller, all of Seller’s and Real Estate Seller’s respective right, title and interest in and to all of the following assets of the Business, except to the extent that the same are Excluded Assets (the “
Purchased Assets
”), free and clear of all Liens other than Permitted Liens:
(a)
all machinery, production equipment, testing equipment, furniture, fixtures, office furnishings, cranes, tools and dies, molds, fixtures and parts, capital spares, vehicles, computer hardware and software, and other tangible personal property owned (including Seller’s leasehold rights identified on
Section 2.1(g)
of the Disclosure Schedule) by Seller and/or Real Estate Seller currently used in operations of the Business at the Facilities, which includes, without limitation, free and clear title and ownership to the equipment leased by Seller from Utica Lease Co, LLC (the “Utica Assets”) as identified in
Section 2.1(a)(i)
of the Disclosure Schedule which shall be bought out at Closing with proceeds from the Purchase Price; free and clear title to the Ford Motor Company machinery and equipment (the “Ford Motor Company Assets”) identified in
Section 2.1(a)(i)
of the Disclosure Schedule; all of the tangible personal property identified on
Section 2.1(a)(ii)
of the Disclosure Schedule; and free and clear title to the AS400 server located at 50801 E. Russell Schmidt Blvd., Chesterfield, Michigan 48051, and all software wherever located utilized for the Business; but
excluding office equipment, furniture and other computer systems used by Employees (as hereinafter defined) in the Sellers’ parent’s Southfield, Michigan facility or other locations, and any other assets located thereat to which Purchaser will be provided access, or that will be used in providing services to Purchaser, pursuant to the Transition Services Agreement, as identified also as excluded equipment on
Section 2.1(a)(iii)
of the Disclosure Schedule (the “
Purchased Equipment
”);
(b)
to the extent assignable, all rights in all warranties of any manufacturer or vendor in connection with the Purchased Equipment;
(c)
all contracts and agreements, licenses, purchase orders, customer orders, utility supply arrangements, and other contracts and agreements, whether written or oral, for the operation of the Business at the Facilities, but only to the extent expressly identified on
Section 2.1(c)
of the Disclosure Schedule (collectively, the “
Acquired Contracts
”);
(d)
all inventories of raw materials, work in process, finished goods, parts, office supplies, packing materials, janitorial supplies and other supplies owned by Seller for use in connection with the Business at the Facilities (collectively, “
Acquired Inventories
”);
(e)
all Owned Real Property (subject only to the Liens specifically identified in
Section 2.7
;
(f)
Seller’s leasehold interest in the Leased Real Property arising under the leases identified in
Section 2.1(f)
of the Disclosure Schedule (the “
Acquired Real Property Leases
”);
(g)
all leasehold rights in personal property leased by Seller and used exclusively in connection with the Business at the Facilities, including free and clear title to and a fully paid up interest in, all of the machinery and equipment leases and/or applicable lease schedules with Utica but only to the extent identified in
Section 2.1(g)
of the Disclosure Schedule (the “
Acquired Personal Property Leases
”);
(h)
to the extent assignable or transferable, all the permits, including Environmental Permits, licenses, approvals, franchises and registrations and other governmental licenses, permits or approvals issued to Seller with respect to the operation of the Facilities or the conduct of the Business at the Facilities (the “
Permits” and “Licenses
”);
(i)
other than the books and records contemplated by
Section 2.1(n)
below, all books and records maintained at the Facilities or elsewhere, including electronically, which are related primarily to the Business, including without limitation, Business records, purchasing records, customer and supplier lists and files, production and inventory records, sales records, marketing, promotional and/or product literature, engineering and prototype drawings of machinery, equipment and parts currently used or held for use in connection with the Business; blueprints and other technical papers; user manuals; inventory, maintenance, and asset history records; construction plans and specifications; administrative libraries; environmental records required by law or regulation; and systems documentation and other data processing information and records, except, in each instance, to the extent they relate to the Excluded Assets;
(j)
to the extent not fulfilled prior to Closing, all open orders, or new orders issued by the customers of the Business to Purchaser on substantially similar terms as the current orders of the Seller, for goods and services with customers of the Business at the Facilities outstanding as of the Closing Date, including all deposits related thereto, but only to the extent identified in
Section 2.1(j)
of the Disclosure Schedule (the “
Open Customer Orders
”);
(k)
the right to receive all goods or services to be provided to Seller in connection with the Business at the Facilities, including all deposits related thereto to open orders for goods and services with suppliers that remain unfulfilled as of the Closing date, but only to the extent identified in
Section 2.1(k)
of the Disclosure (the “
Open Supplier Orders
”);
(l)
all receivables of Seller specifically related to the Business, including the products produced at the Facilities on or before the Closing Date and receivables from Employees, but only to the extent identified in
Section 2.1(l)
of the Disclosure Schedule;
(m)
all Intellectual Property Rights owned by the Seller and used solely or primarily in the Business at the Facilities, including the tradename/trademark “Thintech” and those Intellectual Property Rights, but
only to the extent identified in
Section 2.1(m)
of the Disclosure Schedule (the “
Acquired Intellectual Property Rights
”);
(n)
all employee-related files and records, including occupational health and safety records, assessments and audits; industrial hygiene files; workers compensation records; workers compensation claims files; and personnel employment and medical records (in each case, to the extent the transfer thereof is not prohibited by Law) for Hired Employees at the Facilities;
(o)
all telephone numbers of Seller, including 800 or other toll-free numbers related to the Business, which shall be assigned to Purchaser as of the Closing Date. Seller shall take any and all actions which Purchaser deems appropriate in connection with said telephone numbers and Seller shall not use said phone numbers after the Closing Date; and
(p)
all of the other tangible and intangible property that is owned by Seller or Real Estate Seller and located at the Facilities, other than Excluded Assets and all other tangible and intangible property located anywhere that is owned by the Seller or Real Estate Seller and used exclusively for the Business.
3.
Excluded Assets
. Notwithstanding anything to the contrary contained in this Agreement, the following assets are not being sold, assigned, transferred or conveyed to Purchaser by Seller hereunder (the “Excluded Assets”):
(a)
except for the assets used for the Business at the Facilities, or elsewhere as identified in
Section 2.1
and/or the related
Section 2.1(a) - (m)
of the Disclosure Schedules, if applicable, any of Seller’s assets, including but not limited to, intellectual property, technology, books and records which are not located at the Facilities and not related to the Business, including office equipment, computers, and any receivables not related to the Business;
(b)
all claims, including, but not limited to, commercial claims of Seller against third parties, intercompany claims and/or claims against Affiliates, including but not limited to, any such claims arising out of Seller’s conduct of the Business at the Facilities on or before the Closing Date, including any rights of Seller in any legal proceedings relating to any Excluded Asset or Excluded Liability (including but not limited to the insurance policies and rights related thereto described below), and any indemnification rights of Seller relating thereto;
(c)
the corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account and other records having to do with the corporate organization of Seller;
(d)
the basic books and records of account and all supporting vouchers, invoices and other records and materials relating to any or all Taxes of Seller or Business;
(e)
all claims for refunds due to Seller for Taxes of any nature paid by Seller with respect to any period ending on or prior to the Closing Date;
(f)
all insurance policies and performance bonds covering the Purchased Assets and any rights and claims arising from such bonds or policies after Closing;
(g)
all insurance proceeds arising in connection with property damage to the Purchased Assets occurring prior to the Closing Date;
(h)
Benefit Plans and all related assets;
(i)
data files, archive files, systems documentation and other data processing information and records relating to any of the foregoing Excluded Assets;
(j)
the assets, properties and rights specifically set forth on
Section 2.2(j)
of the Disclosure Schedule;
(k)
the rights which accrue or will accrue to Seller under this Agreement and the Related Agreements;
(l)
any rights claims or causes of action related to Excluded Assets;
(m)
all claims of Seller that are not directly related to the ongoing operation of the Business at the Facilities, including, without limitation all potential claims against directors and officers, intercompany claims and/or claims against Affiliates;
(n)
except for assets used primarily for the Business, any assets which are not specifically listed as Purchased Assets, including the Seller’s name(s); and
(o)
subject to
Section 2.1(k)
, all cash and deposit accounts of Seller.
4.
Assumed Liabilities
. Although not a “successor” to the Sellers, upon the terms and conditions contained in this Agreement, and absent a showing of actual fraud by Seller regarding the nature of such obligations as
bona fide
obligations of Seller, Purchaser shall, without any further responsibility or liability of, or recourse to, Seller, or Seller’s directors, members, shareholders, officers, employees, agents, consultants, representatives, Affiliates, successors or assigns, absolutely and irrevocably assume and be solely liable and responsible for paying and satisfying the following specifically identified liabilities and obligations after the Closing Date (the “
Assumed Liabilities
”):
(a)
liabilities incurred and arising after the Closing, on or after the Closing Date, in connection with or from the use of the Purchased Assets or operation of the Business at the Facilities by Purchaser, its Affiliates, sub-licensees or their respective successors or assigns, including claims by employees of any of the foregoing, or other persons, arising from or relating to the use of the Purchased Assets or the operation of the Business at the Facilities after the Closing Date, including claims resulting from injuries to any persons or
Hired Employees that occur after the Closing Date based upon the above and as a result of the condition of any of the Purchased Assets;
(b)
obligations incurred and arising from any actions taken by Purchaser after the Closing Date with respect to Hired Employees or operation of the Business conducted at the Facilities;
(c)
all specifically identified obligations of Seller to deliver products or services pursuant to Open Customer Orders outstanding as of Closing, but only to the extent identified in
Section 2.3(c)
of the Disclosure Schedule;
(d)
all specifically identified accounts payable of Seller outstanding as of Closing, but only to the extent specifically identified in
Section 2.3(d)
of the Disclosure Schedule and related to any Purchased Assets; or any assets that will be delivered after Closing pursuant to Open Supplier Orders;
(e)
all liabilities in respect of the Acquired Contracts, the Acquired Real Property Leases or the Acquired Personal Property Leases, but only to the extent that such liabilities thereunder are required to be performed after the Closing Date and do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by Seller or Affiliate on or prior to the Closing;
(f)
any and all obligations of Purchaser under the WARN Act or similar state statutes as a result of the hiring of Hired Employees and the consummation of the transaction contemplated by this Agreement; and
(g)
all other obligations expressly and specifically identified in
Section 2.3(g)
of the Disclosure Schedule assumed by Purchaser under the terms of this Agreement or any of the documents and agreements executed in connection with the Closing.
5.
Excluded Liabilities
. Purchaser shall not assume or become responsible for any of Seller’s duties, obligations or liabilities, whether related to the Business, the Purchased Assets, Seller’s operations, Taxes, Seller’s employees, the PBGC Obligations, Seller’s other businesses or otherwise and whether secured, unsecured, funded, unfunded, contingent, known or unknown, other than those classified specifically as Assumed Liabilities and specifically identified in
Section 2.3
of the Disclosure Schedule (the “
Excluded Liabilities
”) and Seller shall remain fully and solely liable and absolutely and irrevocably responsible for all such Excluded Liabilities without any liability or responsibility of, or recourse to, Purchaser or any of its Affiliates.
6.
Non-Transferable Contracts and Permits
. Anything in this Agreement to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign or transfer any Acquired Contract, Acquired Personal Property Lease, Acquired Real Property Lease or any of the Permits and/or Licenses, or any claim or right or any benefit or obligation thereunder or resulting therefrom if an assignment or transfer thereof is prohibited or, without the consent of a third party thereto, would constitute a breach or violation thereof or is otherwise prohibited and such consent has not been obtained. If such consent is required and
has not been obtained or if an attempted assignment or transfer is ineffective or prohibited, Seller shall use its commercially reasonable efforts to cooperate with Purchaser in any reasonable arrangement requested and approved by Purchaser, to provide for Purchaser the benefits under any such Acquired Contract, Acquired Personal Property Lease, Acquired Real Property Lease or any such Permit or License. In connection with any such arrangement, (i) Purchaser shall bear the expense of structuring and implementing the arrangement and (ii) Purchaser shall honor Seller’s commitments under any such Acquired Contract, Acquired Personal Property Lease, Acquired Real Property Lease, Permit or License to the extent arising following the close of business on the Closing Date in connection with Purchaser’s use of any such Acquired Contract, Acquired Personal Property Lease, Acquired Real Property Lease, License or Permit that is the subject of such arrangement (or assets or rights relating thereto) but not any damages related to a pre-Closing Date breach of such Acquired Contract, Acquired Personal Property Lease, Acquired Real Property Lease or any such Permit or License by Seller or any Affiliates. The above does not apply to the Utica Assets or the Ford Motor Company Assets, which shall be transferred by the Seller to the Purchaser as provided in
Section 2.1(a)
.
7.
Purchase Price; Purchase Price Adjustment
.
(a)
Within two (2) Business Days after the mutual execution and delivery of this Agreement (the date of such mutual execution and delivery is sometimes referred to herein as the “Execution Date”), Purchaser shall deposit, via intrabank transfer, into an escrow, pursuant to the terms of a mutually agreed to escrow agreement between the Seller and the Purchaser (the “Escrow Agreement”), with The PrivateBank and Trust Company, as escrow agent (the “Escrow Holder”), an amount equal to ten percent (10%) of the Purchase Price (the “Deposit”) in immediately available, good funds (funds delivered in this manner are referred to herein as “Good Funds”), pursuant to the joint escrow instructions provided in the Escrow Agreement to be delivered to the Escrow Holder on or before the Execution Date. In turn, the Escrow Holder shall immediately deposit the Deposit into an interest-bearing account as provided in the Escrow Agreement. In no event will the Deposit be an asset of the Sellers or any Affiliate until Closing or as otherwise specifically provided herein, and the Deposit will not be subject to the claims of creditors or other third parties of the Sellers or any Affiliates. The Deposit shall become non-refundable upon the termination of the transaction contemplated by this Agreement by reason of Purchaser’s default of any obligation hereunder (a “Purchaser Default Termination”), it being agreed that Seller shall not have the right to so terminate this Agreement unless Purchaser has failed to cure the applicable default within ten (10) days following its receipt of written notice thereof from Seller. At the Closing, the Deposit shall be credited and applied toward payment of the Purchase Price. In the event the Deposit becomes non-refundable by reason of a Purchaser Default Termination, Escrow Holder shall, as provided in the Escrow Agreement, confirm such default with Purchaser and immediately thereafter disburse the Deposit and all interest accrued thereon to Seller to be retained by Seller for its own account and as Seller’s sole and exclusive remedy hereunder related to a Purchaser default hereunder and thereafter both Seller and Purchaser shall be relieved of any and all additional obligations and liabilities hereunder and as a result of such default except for obligations related to Confidential Information as provided herein. If the transactions contemplated herein terminate by reason of (A) Seller’s default under this Agreement, it being agreed that Purchaser shall not have the right to so terminate this Agreement unless Seller have failed to cure the applicable default within ten (10) days following their receipt of written notice thereof from Purchaser, or (B) the failure of a condition to Purchaser’s obligations hereunder (including Article VI and Article VIII, the Escrow Holder shall confirm the same with Seller as provided in the Escrow Agreement and immediately thereafter return to Purchaser the Deposit (together with all interest accrued thereon), but less Purchaser’s one-half (1/2) share of the Escrow Holder’s escrow fees and charges.
(b)
On the Closing Date, Purchaser shall (A) cause the Escrow Holder to deliver the Deposit (together with all accrued interest thereon but less the Working Capital Escrow) to Seller, and (B) subject to the adjustments hereinafter identified in this
Section 2.6(b)
, including the working capital adjustment as hereinafter provided in
Section 2.6(c)
, pay and deliver, in Good Funds, the balance of the Purchase Price to Seller (and/or directly to Sellers’ secured and/or lien creditors to release the liens against the Purchased Assets), which balance amount together with the Deposit identified in (A), above, shall be Fifty-Four- Million
Four Hundred Thousand Dollars ($54,400,000) (“Purchase Price”), less the Deposit and less the sum of the following: accrued interest on the Deposit; any charges and prorations for which Sellers or the Real Estate Seller are responsible and/or accountable pursuant to
Section 2.7(c)
; the Working Capital Purchase Price Adjustments identified in
Section 2.6(c)
below; the Chrysler Equipment Purchase Adjustment identified in
Section 2.6(d
) below; all amounts deposited into the various escrow(s) at Closing as provided herein; all amounts listed on
Section 2.3(g)
of the Disclosure Schedule which are being assumed hereunder by Purchaser; and as applicable, the amounts identified on Section 2.6(b) of the Disclosure Schedule related to the JTEKT and related Chrysler business, and/or other customer/business loss from the execution date of the Agreement through Closing.
(c)
Working Capital Purchase Price Adjustment
. The Purchase Price shall be adjusted as follows:
(i)
The Purchase Price assumes that, based on the Seller’s March 31, 2013 balance sheet, the Seller will convey to Purchaser at Closing targeted net working capital of Eleven Million Six Hundred Ninety-Three Thousand Four Hundred Ninety-Eight Dollars ($11,693,498), as calculated on
Section 2.6(c)
of the Disclosure Schedule (“Net Working Capital Target”). Not more than seven (7) days after the May 2013 books of the Seller are closed and completed, but not less than three (3) Business Days prior to Closing, Seller shall calculate, based on the Seller’s May 31, 2013 balance sheet, and in accordance with GAAP consistently applied by Seller in accordance with its historical practices, the estimated Net Working Capital as of May 31, 2013 (the “Estimated Closing Net Working Capital”). At Closing, to the extent that the Estimated Closing Net Working Capital is
less than
the Net Working Capital Target, the Purchase Price shall be decreased on a dollar-for-dollar basis on account of the deficiency. At Closing, to the extent that the Estimated Closing Net Working Capital is
greater than
the Net Working Capital Target, the Purchase Price shall be increased on a dollar-for-dollar basis on account of the excess.
(ii)
As soon as practicable after the Closing Date, but in any event not more than twenty-one (21) Business Days following the Closing Date, Purchaser shall prepare and deliver to the Seller a calculation of the actual Net Working Capital as of immediately prior to the Closing (the “Final Closing Net Working Capital”), which shall be prepared in accordance with GAAP consistently applied and in the same manner as by Seller in accordance with its historical practices, and in the same manner, using the same methodologies, reserve criteria, policies, and accompanying conservatism or liberalism, as the computation of the Estimated Closing Net Working Capital. To the extent that the Final Closing Net Working Capital is
less than
the Estimated Net Working Capital, Purchaser shall be paid, from the Working Capital Escrow (as defined below) the amount of such deficiency (“Final Negative Net Working Capital Adjustment”), and the remainder of the Working Capital Escrow paid to Seller. At Closing, to the extent that the Final Closing Net Working Capital is
greater than
the Estimated Net Working Capital, Purchaser shall pay to Seller the excess (“Final Positive Net Working Capital Adjustment”), and the entirety of Working Capital Escrow paid to Seller. If the Seller disputes the Final Closing Net Working Capital determined by the Purchaser, then the Seller shall deliver to Purchaser a written statement (the “Dispute Notice”) describing with reasonable detail the basis for any such dispute within five (5) Business Days after receiving the calculation of the Final Closing Net Working Capital. If the Seller does not deliver the Dispute Notice to Purchaser within such five (5) Business Day time period, then the determination of the Final Closing Net Working Capital shall be deemed final and accepted by the Seller. Purchaser and the Seller will use reasonable efforts to resolve any such dispute themselves. If such dispute is not finally resolved within seven (7) Business Days after Purchaser’s receipt of the Dispute Notice, either Purchaser or the Seller may promptly thereafter cause BDO USA, LLP, or another mutually acceptable third party accounting firm (the “Arbitrating Accountant”) to promptly review this Agreement and the disputed items or
amounts in determining the Final Closing Net Working Capital. Within five (5) Business Days after submission to the Arbitrating Accountant for resolution, Purchaser and the Seller shall each indicate in writing their position on each disputed matter and each such party’s determination of the amount of the Final Closing Net Working Capital. The Arbitrating Accountant shall make a written determination on each disputed matter no later than fourteen (14) Business Days after submission to the Arbitrating Accountant for resolution and such determination will be conclusive and binding upon Purchaser and the Seller with respect to that disputed matter. The fees and expenses of the Arbitrating Accountant incurred in the resolution of such dispute shall be borne by the Purchaser and the Seller in such proportion as is appropriate to reflect the relative benefits received by the Purchaser and the Seller from the resolution of the dispute, which proportionate allocation shall be determined by the Arbitrating Accountant at the time the determination of the Arbitrating Accountant is rendered on the merits. For example, if the Seller challenges the calculation of the Final Closing Net Working Capital by an amount of One Hundred Thousand Dollars ($100,000), but the Arbitrating Accountant determines that the Seller has a valid Claim for only Forty Thousand Dollars ($40,000) (i.e., the Seller prevails as to forty percent (40%) of its Claim), then Purchaser shall bear forty percent (40%) of the fees and expenses of the Arbitrating Accountant and the Seller shall bear the other sixty percent (60%) of such fees and expenses. Without limiting the foregoing, each of Purchaser and Seller will indemnify and hold each other harmless from the other party’s failure to pay its portion of the fees and expenses of the Arbitrating Accountant. The maximum differential between the Estimated Closing Net Working Capital and the Final Closing Net Working Capital can only be the amount by which the Net Working Capital accounts which make up the Net Working Capital Target have migrated, in the ordinary course of business, from June 1, 2013 through the Closing Date.
(iii)
Purchaser will provide the Seller access to materials used in the preparation of the Final Closing Net Working Capital and shall make its financial staff and advisors available to the Seller and its accountants and other representatives and to the Arbitrating Accountant at any reasonable time during [a] the review by the Seller of the calculation of the Final Closing Net Working Capital, and [b] the resolution by Purchaser and the Seller and/or the Arbitrating Accountant of any objections thereto.
(iv)
At Closing from the proceeds of Closing, Sellers shall permit the sum of Five Hundred Thousand Dollars ($500,000) as a final net working capital escrow (“Working Capital Escrow”) to be maintained with the Escrow Holder and paid out as hereinafter provided. In accordance with
Section 2.6(c)(ii)
, in the event of a Final Negative Net Working Capital Adjustment, Purchaser shall be paid by the Escrow Holder from the remaining Deposit and the Working Capital Escrow, the amount of the difference between the Final Closing Net Working Capital and the Estimated Closing Net Working Capital, and the remainder of the Working Capital Escrow, if any, paid to Sellers or if a deficiency after the depletion of the Working Capital Escrow, the Sellers shall pay such deficiency to Purchaser as hereinafter provided in Subsection (v). In the event of a Final Positive Net Working Capital Adjustment, Purchaser shall pay to Sellers the excess between the Final Closing Net Working Capital and the Estimated Closing Net Working Capital, and the entirety of the remaining Deposit and the Working Capital Escrow shall be paid to Sellers.
(v)
The Final Negative Net Working Capital Adjustment or Final Positive Net Working Capital Adjustment, as applicable, shall be paid by the applicable party to the other party hereto, no later than five (5) Business Days after the final determination of the Final Closing Net Working Capital in accordance with this
Section 2.6(c)
.
(vi)
For purposes of tracking and calculating both the Estimated Closing Net Working Capital and the Final Closing Net Working Capital hereunder, the parties hereto agree as follows:
(A)
Upon execution of this Agreement, Seller shall provide Purchaser with a roll forward of Seller’s Working Capital at certain dates as follows:
(I)
Seller’s Net Working Capital as of May 4, 2013 (first period ending after March 30, 2013 to be delivered upon execution of this Agreement);
(II)
Seller’s Net Working Capital as of June 1, 2013 (second period ending after March 30, 2013 to be delivered on or about June 12, 2013); and
(III)
Seller’s Net Working Capital subsequent to June 1, 2013 through Closing, to be delivered each Friday thereafter before 3:00 p.m. EST, which roll forward Net Working Capital shall identify Seller’s Net Working Capital through the end of the previous Business Day before each Friday as identified above.
(B)
From the date of execution of this Agreement through Closing:
(I)
Seller will continue to operate its business in ordinary course from the execution of this Agreement to Closing, and specifically as it relates to its Working Capital (i.e. collecting accounts receivable and paying accounts payable in accordance with the terms in place as of March 30, 2013). Seller further will not extend payment terms to suppliers or attempt to accelerate the collection of receivables from customers ahead of current terms;
(II)
Seller will immediately notify Purchaser of any business events or known changes that could significantly impact the Final Closing Net Working Capital or the Estimated Closing Net Working Capital. Seller further will immediately notify Purchaser of any potential or known changes in Seller’s Working Capital that are not in the ordinary course of Seller’s business;
(III)
Seller agrees to respond immediately to Purchaser inquiries from time-to-time regarding Seller’s Net Working Capital;
(IV)
Seller in good faith agrees to manage Seller’s Net Working Capital with the intent of having the Final Closing Net Working Capital be as close to the Estimated Closing Net Working Capital as possible; and
(V)
Seller agrees not to manage Seller’s Net Working Capital to intentionally and/or knowingly cause the Final Closing Net Working Capital to differ from the Estimated Closing Net Working Capital by more than the Working Capital Escrow.
(d)
Chrysler Equipment Purchase Adjustment
. The Purchaser and Seller acknowledge that the Purchase Price will be adjusted at Closing in accordance with the provisions of Section 2.6(d) of the Disclosure Schedule.
(e)
Purchase Price Allocation
. Not later than ninety (90) calendar days following the Closing Date, Purchaser shall prepare and deliver to Seller, Purchaser’s proposed draft of ITS Form 8594 to be filed with the IRS. Seller and Purchaser shall cooperate in good faith to finalize a mutually agreeable Form 8594 before December 31, 2013. Seller and Purchaser acknowledge that the allocation of the Purchase Price set forth in such form shall be binding upon the parties for all applicable federal, state, local and foreign tax purposes. Seller and Purchaser covenant (i) to report gain or loss or cost basis, as the case may be, in a manner consistent with such allocation; (ii) not to voluntarily take any position inconsistent therewith in any proceeding relating to such returns; and (iii) to use commercially reasonable efforts to sustain such allocation in any subsequent Tax audit or Tax dispute.
8.
Owned Real Property Closing Procedures
.
(a)
Instruments of Conveyance
. The Real Estate Seller hereby agrees to deliver and convey good and marketable title to the Owned Real Property(ies) and related Facility(ies) to Purchaser by good and sufficient general warranty deed(s) (the “Deeds”) and to warrant title to said Owned Real Property(ies) and the related Facility(ies) to be free and clear of all encumbrances, except:
(i)
Taxes and assessments which are a lien, but not yet due and payable;
(ii)
Such other encumbrances, reservations, restrictions, and exceptions, if any, as are approved by Purchaser in accordance with Subsection (b) hereof and permitted in the policy(ies) of title insurance described hereinafter which do not materially adversely affect the use or value of the Owned Real Property(ies) or Facility(ies) to Purchaser; and
(iii)
Zoning ordinances.
(b)
Instruments of Title Assurance
.
(i)
Preliminary Title Reports
. Not more than seven (7) days after execution of this Agreement, Purchaser with Seller’s and Real Estate Seller’s cooperation, shall order from First American Title Insurance Company (the “Title Company” and sometimes the “Escrow Agent”) for each Owned Real Property, a commitment for an ALTA Owner’s Fee Policy of Title Insurance (the “Commitments”), a copy of which shall be provided by Purchaser to Seller upon receipt thereof by Purchaser, for review, including complete, legible copies of all instruments noted as exceptions on Schedule B thereof. Failure of Purchaser to order any title Commitment within such seven (7) day period shall constitute a waiver by Purchaser of any right to obtain a title Commitment as a condition to Closing and of any Title Defects, as defined below. Within seven (7) days after execution of this Agreement and after receipt of each Commitment, Purchaser shall notify Seller in writing of any liens, encumbrances, restrictions, easements, or conditions shown therein which are objectionable to Purchaser, or which, in the opinion of the Title Company, shall prevent the issuance of the title policy in the form as referenced herein. Said items which are objectionable or are prohibited under the title policy shall be considered “Title Defects” for purposes of this Agreement; provided, however, that Permitted Liens shall not be objectionable by Purchaser and shall not constitute a Title Defect”. Purchaser shall be deemed to have waived the right to object and shall be deemed to have accepted the status of title reflected in a particular Commitment if Purchaser fails to object to any matter of title within the said three (3) day period after receipt of such applicable Commitment. If any Title Defect is (i) reflected in a Commitment and not waived by the Purchaser, or (ii) discovered after issuance of a Commitment but prior to fourteen (14) days before the Closing Date, Seller will be entitled to a reasonable extension of time for the Closing, as Seller’s sole discretion, but not more than seven (7) days from the date Seller is notified of the Title Defect, to remove such Title Defect. In the event such Title Defect is not removed within the seven (7) day extension period, Purchaser
shall have the option to declare this Agreement null and void and receive a full refund of all money deposited in escrow or paid to Seller, Escrow Agent or the Escrow Holder, including the Deposit.
(c)
Real Property Prorations, Charges and Credits
. As part of the Closing, the Purchaser will obtain Owner’s Fee Policies of Title Insurance in such amounts for the applicable Owned Real Property, as determined by the Purchaser in its sole discretion. With Seller’s and Real Estate Seller’s cooperation, on or before June 21, 2013, such Owner’s Fee Policies shall have eliminated therefrom the title policy’s Schedule B standard printed exceptions for (i) easements not of record, (ii) rights of parties in possession, (iii) unfiled mechanics’ and materialmen’s liens, and (iv) taxes and assessments not shown as a lien by public records. The failure to eliminate the above exceptions by June 21, 2013, however, shall not constitute a Material Adverse Effect, and shall not be a Purchaser’s condition to Closing, unless, prior to June 21, 2013, Purchaser notifies Sellers, in writing, of its objection and/or its intent to terminate this Agreement based on such failure.
(i)
Charges Against Seller
. Seller shall be charged with the following costs to be deducted by the Escrow Agent from funds due Seller: (A) the cost of any conveyance fees and/or real estate transfer taxes and/or stamps required by law to be paid at the time of filing the Deeds; (B) the costs of satisfying any taxes, assessments, liens or encumbrances required to be discharged by this Agreement; (C) the cost of any inspection or certificates required by any public body or authority; (D) the amount of any prorations due Purchaser under this Agreement; and (E) one-half (1/2) of the escrow fee to be paid to the Escrow Agent.
(ii)
Charges Against Purchaser
. Purchaser shall be charged with the following costs to be deducted by the Escrow Agent from funds due Purchaser, if any, or to be paid by Purchaser prior to transfer of title(s): (A) if performed by Purchaser, the cost of the location surveys or ALTA surveys; (B) the cost of the Owner’s Fee Policy(ies) of Title Insurance and the cost of the Commitments, and any additional cost for a lender’s policy of title insurance, if required; (C) the costs incident to filing the Deeds; (D) one-half (1/2) of the escrow fee to be paid to the Escrow Agent; and (E) the cost of any and all environmental site assessment(s) performed by the Purchaser, if any.
(iii)
Other Charges and Prorations
. Taxes and assessments, both general and special, and real estate taxes, shall be prorated as of the date of title transfer based upon the last available tax duplicate. Seller shall pay all utility charges to the date of title transfer.
9.
Closing
.
(a)
The Closing shall take place at the offices of Wegman, Hessler & Vanderburg, 6055 Rockside Woods Boulevard, Suite 200, Cleveland, Ohio 44131 or remotely by mail, telecopier, e-mail and/or wire transfer in each case to the extent acceptable to the parties hereto, at 10:00 A.M. on a date that is no later than three (3) Business Days after the satisfaction or waiver of the conditions precedent set forth in
Articles VI
and
VII
or on such other date, and at such other time and place, as may be agreed by Purchaser and Seller;
provided
,
however
, that the date of the Closing shall be automatically extended from time to time for so long as any of the conditions set forth in
Articles VI
and
VII
shall not be satisfied or waived, subject, however, to the provisions of
Section 8.1
. The date on which the Closing occurs in accordance with the preceding sentence is referred to in this Agreement as the “
Closing Date
.”
(b)
At the Closing, Seller shall deliver the following to Purchaser:
(i)
a bill of sale and assignment and assumption agreement and deeds in the forms attached hereto as
Exhibit A, as applicable
(the “
Bill of Sale
”), and (the “Deeds”) duly executed by Seller and/or Real Estate Seller as applicable;
(ii)
an assignment of the Acquired Intellectual Property Rights in the form attached hereto as
Exhibit B
(the “
IP Assignment
”);
(iii)
assignments with appropriate lessor consents of the Acquired Personal Property Leases in the form attached hereto as Exhibit C (the “Personal Property Lease Assignments”);
(iv)
assignments with applicable landlord consents, of the Real Property Lease in the form attached hereto as Exhibit D (the “Real Property Lease Assignments”);
(v)
certificates of good standing of Seller and Real Estate Seller from the Secretary of State of the State of Delaware;
(vi)
a certificate of Seller, dated as of the Closing Date, as to the satisfaction of the conditions set forth in
Sections 6.1,
6.2
,
6.3
,
6.4
,
6.5
,
6.6
,
6.7
,
6.10
and
6.11
, and
Sections 6.13
and
6.14
, as applicable;
(vii)
certified resolutions from the management committee, members and independent operating committee of Seller and/or Real Estate Seller approving this Agreement and the transactions hereunder;
(viii)
a transition services agreement, duly executed by Seller, in a customary form mutually agreed between Purchaser and Seller, acting in good faith, in the form attached hereto as Exhibit E (the “Transition Services Agreement”), which shall provide that (i) Seller’s applicable Affiliates will provide transition services not more extensive (both in scope and volume) than the services provided by Seller’s Affiliates to Seller and its subsidiaries immediately prior to the Closing for a period of up to three (3) months (terminable upon sixty (60) days’ notice; (ii) such services shall be provided for amounts to be agreed upon between the parties and provided in the Transition Services Agreement and (iii) Purchaser shall provide Seller access to the Facilities on agreed upon terms to effectuate the transition and ultimate removal of any Excluded Assets, including but not limited to those on
Section 2.2(j)
of the Disclosure Schedule; and
(ix)
such other instruments and documents as reasonably requested by Purchaser or its counsel in order to consummate the transactions contemplated under this Agreement.
(c)
At the Closing, Purchaser shall deliver the following to Seller:
(i)
the remaining Purchase Price payable to such Seller pursuant to
Section 2.6
;
(ii)
as applicable, duly executed counterparts of each of the agreements referred to in
Section 2.8(b)
;
(iii)
a certificate of the Purchaser, dated as of the Closing Date, as to the satisfaction of the conditions set forth in
Sections 7.1
and
7.2
; and
(iv)
such other instruments and documents as reasonably requested by the Seller or its counsel in order to consummate the transactions contemplated under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Seller
Seller, and, notwithstanding any other provision contained herein, Real Estate Seller only as to
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.17 and 3.18,
hereby represent and warrant to Purchaser that, except as set forth in the Disclosure Schedule:
10.
Due Incorporation
. Seller and Real Estate Seller are both duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller and Real Estate Seller are also validly existing and in good standing in each state where a Facility is located.
11.
Due Authorization
. As applicable hereunder, Seller and Real Estate Seller each have full power and authority to enter into this Agreement and its Related Agreements and to consummate the transactions contemplated hereby and thereby. As applicable, the execution, delivery and performance by Seller and Real Estate Seller of this Agreement and the Related Agreements have been duly and validly approved by each of the management committees, the members and the independent operating committees of Seller and Real Estate Seller and no other limited liability company actions or proceedings on the part of Seller or the Real Estate Seller are necessary to authorize this Agreement, the Related Agreements and the
transactions contemplated hereby and thereby. Seller and the Real Estate Seller have duly and validly executed and delivered this Agreement and have duly and validly executed and delivered (or prior to or at the Closing will duly and validly execute and deliver) the Related Agreements, as applicable. This Agreement constitutes the legal, valid and binding obligation of Seller and the Real Estate Seller; and Seller’s Related Agreements, upon execution and delivery by Seller, will constitute legal, valid and binding obligations of Seller and Real Estate Seller, as applicable, in each case, enforceable in accordance with their respective terms.
12.
No Violation
. Neither the execution and delivery of this Agreement (or the Related Agreements) nor the consummation of the transactions contemplated hereby will violate any provision of any law, rule or regulation applicable to Seller or the Real Estate Seller, their respective Articles of Organization and/or Operating Agreements, or violate, or be in conflict with, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or cause the acceleration of the maturity of any debt or obligation pursuant to, or result in the creation or imposition of any security interest, lien or other encumbrance upon the Purchased Assets, the Owned Real Property, the Leased Real Property or under any agreement or commitment to which Seller or the Real Estate Seller is a party or by which they are bound, or to which their properties are subject. The execution and delivery of this Agreement by the Seller and Real Estate Seller will not violate any bankruptcy laws and/or orders or directives in the Bankruptcy Case.
13.
Consents and Approvals; Governmental Authority Relative to This Agreement
. Except as set forth in
Section 3.4
of the Disclosure Schedule, the execution, delivery and performance by Seller of this Agreement and its Related Agreements and the Real Estate Seller will not violate any order, writ, injunction, decree, statute, treaty, rule or regulation applicable to Seller or Real Estate Seller or any of their respective assets, including the Purchased Assets, the Owned Real Property or the Leased Real Property. Except for and as set forth in
Section 3.4
of the Disclosure Schedule, no consent, approval or authorization of, or declaration, filing or registration with, any court or governmental or regulatory authority is required in connection with the execution, delivery and performance of this Agreement by Seller and Real Estate Seller. For there to be a breach of the representations and warranties under this Section 3.4, the breach(es) must be Material.
14.
Compliance With Laws
. Seller is operating the Business in compliance with all Applicable Laws, except where the failure to be in such compliance would not have a Material Adverse Effect on the Purchased Assets or the Business. Seller has not been charged with or given notice of, and to the Knowledge of Seller, Seller is not under investigation with respect to, any material violation of, or any obligation to take material remedial action under, any Applicable Law. The execution and delivery of this Agreement by the Seller and Real Estate Seller will not violate any fraudulent transfer, fraudulent conveyance or bankruptcy laws.
15.
Title; Sufficiency
.
(a)
Seller and Real Estate Seller, as applicable, has good, valid and marketable title to, or valid leasehold interests in, as the case may be, all of the Purchased Assets free and clear of all Liens, other than Permitted Liens or as provided in
Section 2.7
hereof.
(b)
The Purchased Assets, together with the property subject to the Acquired Real Property Lease and the Acquired Personal Property Leases, comprise substantially all of the property and assets used in the conduct of the Business.
16.
Taxes
.
(a)
Except as set forth in
Section 3.7
of the Disclosure Schedule, to the Knowledge of the Seller and the Real Estate Seller, Seller and Real Estate Seller have filed all Tax reports and returns required to be filed by them on and/or prior to the Closing Date and all Taxes with respect to the Business and the Purchased Assets which are due and payable prior to the Closing Date have been or will be duly and properly computed, reported, fully paid and discharged, other than those Taxes which are fully reserved and the subject of a
bona fide
dispute with the Taxing authority. Any such dispute with a Tax authority is identified in
Section 3.
7 of the Disclosure Schedule. As applicable, to the Knowledge of Seller and the Real Estate Seller, except as set
forth in
Section 3.7
of the Disclosure Schedule, there are no unpaid Taxes with respect to any period ending on or before the Closing Date which are or would become a lien on the Purchased Assets, except for current Taxes not yet due and payable, or Taxes which are the subject of a
bona fide
dispute with the taxing authority and fully reserved. All Taxes required to be withheld by or on behalf of the Seller and the Real Estate Seller for periods ending after the Closing Date, including but not limited to those in connection with amounts paid or owing to any Employee, independent contractor, workers’ compensation premiums, creditor or other party with respect to the Business have been withheld and either duly and timely paid to the proper Governmental Authority or set aside in accounts for such purpose and will be paid when due and payable. All Tax returns filed by Seller through the Closing Date constitute complete and accurate representations of the Tax liabilities of Seller, as appropriate, for such years and accurately set forth all items relevant to its future Tax liabilities.
(b)
Preparation and Filing of Tax Returns
. Seller represents and warrants to Purchaser that Seller shall cause to be included in the federal, state and local income, commercial activity, franchise, sales and use, personal property, payroll and other Tax returns of the Seller for all periods ending on and/or before and which includes the Closing Date, all Tax items of the Seller which are required to be included therein, have properly and adequately accrued for all such Taxes, shall file timely all such Tax returns with the appropriate Taxing authorities and shall timely pay all Taxes due with respect to the periods covered by such Tax returns. Seller further represents and warrants to Purchaser that Seller shall cause to be included in the payroll Tax returns, sales and use Tax returns, and personal property Tax returns of Seller for all periods ending after, on and/or before and which include the closing Date, all payroll Tax items, all sales and/or use Tax items, and all personal property Tax items of the Seller which are required to be included therein, shall timely file all such payroll Tax returns, sales and/or use Tax returns, and personal property Tax returns with the appropriate Taxing authorities and shall timely pay all payroll Taxes, workers’ compensation premiums and claims, sales and use Taxes, and personal property Taxes due with respect to the periods covered by such payroll, sales and/or use and personal property Tax returns. Any Tax return to be prepared pursuant to the provisions of this
Section 3.7
shall be prepared in a manner consistent with practices followed in prior years with respect to similar Tax returns, except for changes required by changes in law.
17.
Permits and Licenses
.
Section 3.8
of the Disclosure Schedule lists all governmental or other Permits, Licenses and other authorizations which are issued to, held or used by Seller or the Real Estate Seller, or for which Seller or Real Estate Seller have applied in connection with the operation of the Business at the Facilities as of the date of this Agreement including all environmental permits (the “Environmental Permits”). For there to be a breach of the representations and warranties under this Section 3.8, the breach(es) must be Material.
18.
Acquired Contracts
. The Seller is not in default, nor but for a requirement that notice be given or that a period of time elapse or both, would be in default, under any Acquired Contract, Acquired Personal Property Leases, or Acquired Real Property Leases identified on
Section 2.1(c), (f) and (g)
of the Disclosure Schedule. All of the Acquired Contracts, Acquired Personal Property Leases and Acquired Real Property Leases are, to Seller’s Knowledge, in good standing, valid and effective, and the Seller has in the ordinary course of business, paid in full all amounts due thereunder and has satisfied in full all of the liabilities and obligations with respect thereto, and the Seller is not in default under any of them, nor to the Seller’s Knowledge, is any other party to such Acquired Contracts, Acquired Personal Property Leases, or Acquired Real Property Leases in default thereunder. The Seller has no Knowledge that any other party to the Acquired Contracts, the Acquired Personal Property Leases or the Acquired Real Property Leases will cancel, terminate or be unable to comply with any of the Acquired Contracts, Acquired Personal Property Leases or Acquired Real Property Leases. For there to be a breach of the representations and warranties under this Section 3.9, the breach(es) must be Material.
19.
Insurance
.
Section 3.10
of the Disclosure Schedule contains an accurate and complete list, with limits, of all policies of fire, product liability, general liability, other casualty, workmens’ compensation
and other forms of insurance owned or held by the Seller concerning the Business. All such policies are in full force and effect, all premiums with respect thereto covering all periods up to and including the Closing Date have been paid, and no notice of cancellation, non-renewal, termination, or disallowance has been received with respect to any such policy. Such policies are sufficient for the Business and are valid, outstanding and enforceable policies and all such casualty and liability policies are, except as noted in
Section 3.10
of the Disclosure Schedule, “occurrence based” and none are “claims made”, including product liability insurance.
20.
Labor Matters; Benefit Plans and Benefit Programs and Agreements
. Seller is in compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment, wages and hours, and nondiscrimination in employment, and is not engaged in any unfair labor practice. The Seller is not a party to any collective bargaining or union contracts or similar agreements. To the best of Seller’s Knowledge, Seller is in compliance with the procedural requirements of the Federal Immigration and Nationality Act. All of Seller’s Benefit Plans are in compliance with ERISA and all of the Seller’s Benefit Plans which are intended to meet the requirements of Section 401(a) of the Internal Revenue Code, as amended (the “Code”) have been determined by the IRS to be “qualified” within the meaning of Section 401(a) of the Code and there are no facts which would adversely affect the qualified status of any of the Seller’s Benefit Plans. All of the Benefit Plans of Seller have been operated in compliance with all applicable laws. Except as set forth on
Section 3.11
of the Disclosure Schedule, (i) there are no pending or threatened claims by any employee or former employee against Seller other than for compensation and benefits due in the ordinary course of employment (ii) there are no pending or threatened claims against Seller arising out of any statute, ordinance, or regulation relating to employment practices or occupational or safety and health standards, (iii) there are no pending or, to the best of Seller’s Knowledge, threatened labor disputes, strikes, or work stoppages against Seller, and (iv) to the best of Seller’s Knowledge, there are no union organizing activities in process or contemplated with respect to the Business or its employees. Except as set forth on
Section 3.11
of the Disclosure Schedule, the transactions contemplated by this Agreement and the termination of any employee following the Closing will not trigger any post-termination liability or severance obligation owed by Seller. There are no collective bargaining units with respect to the Seller or the Business that have been certified or recognized by Seller.
Section 3.11
of the Disclosure Schedule also identifies as of the Closing Date, all employees on leave of absence, none of which shall become Hired Employees hereunder. Notice of the availability of healthcare continuation coverage for employees, former employees, and their respective dependents and qualified beneficiaries, in accordance with the requirements of COBRA or any similar state laws has been provided to all persons entitled hereto, and all persons electing such coverage are being (or have been, if applicable) provided such coverage. For there to be a breach of the representations and warranties under this Section 3.11, the breach(es) must be Material.
21.
Non-Governmental Consents
. Except for and as set forth in
Section 3.12
of the Disclosure Schedule, no consent of any non-governmental person will be necessary to the consummation of the transactions contemplated hereby, including, without limitation, consents from any banks, creditors, secured lenders, customers, vendors, unsecured creditors or parties to the Acquired Contracts and/or, as applicable, Acquired Personal Property Leases or Acquired Real Property Lease. For there to be a breach of the representations and warranties under this Section 3.12, the breach(es) must be Material.
22.
Employee Benefits
.
(a)
Except as indicated in
Section 3.13(a)
of the Disclosure Schedule, the Seller does not maintain, participate in or contribute to any Benefit Plans or is a member of a controlled group which has a pension plan. Seller has delivered to Purchaser correct and complete copies of (i) the plan documents and summary plan descriptions, if applicable, for all Seller’s Benefit Plans; (ii) the most recent determination or opinion letter received from the Internal Revenue Service for a Seller’s Benefit Plan, if applicable; and (iii) the Form 5500 Annual Report and schedules thereto, if applicable, for the most recent plan year for which such report has been filed. In addition, Seller has provided Purchaser with a true and accurate copy of each employee
handbook and employee manual currently in effect as they relate to the Employees. All Seller’s Benefit Plans are administered in form and operation in all material respects with all applicable requirements of law.
(b)
Listed within
Section 3.13(b)
of the Disclosure Schedule, are all employment, managerial, advisory and consulting agreements, contracts and arrangements, employee confidentiality agreements, and employee severance agreements maintained or provided by Seller, in which any Employee participates in his capacity as such.
(c)
The Seller has no liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current Employees except as required to avoid the excise tax under Section 4980B of the Code and for which the Seller is fully responsible. The Seller has not, within the past six (6) years, maintained, contributed to, or been required to contribute to (i) a “defined benefit plan” (as defined in ERISA §3(35)) subject to Title IV of ERISA, (ii) a Multiemployer Plan, (iii) a multiple employer plan subject to Section 413 of the Code, (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or (v) any plan which is funded by or associated with a “voluntary employee’s beneficiary association” within the meaning of Section 501(c)(9) of the Code.
(d)
There is no mater pending with respect to any Seller’s Benefit Plans before the Internal Revenue Service or the Department of Labor.
23.
Litigation
.
Section 3.14
of the Disclosure Schedule sets forth each instance in which either the Seller, the Real Estate Seller, the Business or any of the Purchased Assets (a) is subject to any unsatisfied judgment, order, decree, stipulation, injunction, or charge or (b) is a party to any charge, complaint, action, suit, proceeding, hearing, or investigation of or in any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction, or to the Knowledge of the Seller, is threatened to be a party to any such action. For there to be a breach of the representations and warranties under this Section 3.14, the breach(es) must be Material. Notwithstanding the above, Purchaser is not accountable or responsible for any of the litigation identified in
Section 3.14
of the Disclosure Schedule or any costs, expenses, liabilities or obligations related thereto.
24.
Intellectual Property
.
Section 3.15
of the Disclosure Schedule contains a true and complete list as of the date of this Agreement of all of the patents and patent applications, provisionals, trademark registrations and applications and registered copyrights that are included in the Acquired Intellectual Property Rights. Except as disclosed in
Section 3.15
of the Disclosure Schedule: (a) the Seller has not granted any license to a third party or agreed to pay to or receive from a third party any royalty in respect of any of such Acquired Intellectual Property Rights; and (b) to the Knowledge of Seller, there are no pending claims, proceedings or litigation alleging infringement or misappropriation by Seller of any third party patent, copyright or servicemark/trademark rights.
25.
Employees
.
Section 3.16(a)
of the Disclosure Schedule sets forth a complete list (as of the date set forth therein) of names, positions, accrued vacation and accrued paid time-off, and current annual salaries or wage rates and period of service of all full-time or part-time, active and working employees of Seller employed at the Facilities, indicating whether such employee or other individual providing service is a part-time or full-time (collectively, “
Employees
”).
Section 3.16(b)
of the Disclosure Schedule sets forth a complete list of names and leave type of all employees of Sellers who are not actively working and/or on leave of absence, no matter how classified.
26.
Real Property
.
(a)
Section 3.17(a)
of the Disclosure Schedule, sets forth each parcel of real property owned by Real Estate Seller or the Seller and used in or necessary for the conduct of the Business at the Facilities as currently conducted (together with all buildings, fixtures, structures and improvements situated thereon and all easements, rights-of-way and other rights and privileges appurtenant thereto, collectively, the "Owned Real Property"), including with respect to each property, the address location and use. Seller and/or Real Estate Seller have delivered to Purchaser copies of the deeds and other instruments (as recorded) by which
Seller or Real Estate Seller acquired such parcel of Owned Real Property, and copies of all title insurance policies, opinions, environmental site assessments and/or reports, abstracts and surveys in the possession of Real Estate Seller or Seller with respect to such parcel. With respect to each parcel of Owned Real Property:
(i)
Real Estate Seller and/or Seller has good and marketable fee simple title, free and clear of all encumbrances, except those encumbrances identified in
Section 2.7
and set forth on title policy(ies) to be delivered in conjunction with the transfer of Owned Real Property; and
(ii)
there are no unrecorded outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein.
(b)
Section 3.17(b)
of the Disclosure Schedule sets forth each parcel of real property leased by Seller (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “
Leased Real Property
”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which Seller holds any Leased Real Property (collectively, the “
Real Property Leases
”). Seller has delivered to Purchaser a true and complete copy of each Real Property Lease. With respect to each Real Property Lease:
(i)
such Real Property Lease is valid, binding, enforceable and in full force and effect, and Seller enjoys peaceful and undisturbed possession of the Leased Real Property;
(ii)
Seller is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a material breach or default, and Seller has paid all rent due and payable under such Lease through the date hereof;
(iii)
Seller has not received nor given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by Seller under any of the Real Property Leases and, to the Knowledge of Seller, no other party is in default thereof, and no party to any Real Property Lease has exercised any termination rights with respect thereto;
(iv)
Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and
(v)
Seller has not pledged, mortgaged or otherwise granted a Lien on its leasehold interest in any Leased Real Property.
(c)
Except as listed on
Section 3.17(c)
of the Disclosure Schedule, Seller has not received any written notice of (i) violations of building codes and/or zoning ordinances or other Applicable Laws affecting the Owned Real Property or Leased Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Owned Real Property or Leased Real Property, or (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to materially and adversely affect the operation of the Owned Real Property or Leased Real Property as currently operated.
27.
Environmental Matters
. As related to the Facilities and/or the Owned Real Property(ies) and the Leased Real Property(ies), the Seller’s existing Phase I and/or Phase II Environmental Reports (the “
Environmental Reports
”) have been made available for inspection by Purchaser. Except as set forth on
Section 3.18
of the Disclosure Schedule or in the Environmental Reports:
(a)
The operations of Seller and the Real Estate Seller with respect to the Business and the Purchased Assets are in material compliance with all Environmental Laws. Seller has not received from any Person, with respect to the Business or the Purchased Assets, any: (i) Environmental Claim; or (ii) written request for information pursuant to Environmental Law, which, in each case, either remains pending or unresolved, or is the source of ongoing obligations or requirements as of the Closing Date.
(b)
Seller has obtained and is in material compliance with all Environmental Permits necessary for the conduct of the Business as currently conducted or the ownership, lease, operation or use of the
Purchased Assets and all such Environmental Permits are in full force and effect and shall be maintained in full force and effect by Seller through the Closing Date in accordance with Environmental Law.
(c)
None of the Business or the Purchased Assets is listed on, or, to the Knowledge of Seller, has been proposed for listing on, the National Priorities List (or CERCLIS) under CERCLA, or any similar state list.
(d)
To the Knowledge of Seller, there has been no Release of Hazardous Substances in violation or contravention of Environmental Law with respect to the Business or the Purchased Assets, and Seller has not received an Environmental Notice that any of the Facilities, the Business or the Purchased Assets (including soils, groundwater, surface water, buildings and other structure located thereon) has been contaminated with any Hazardous Substance which could reasonably be expected to result in an Environmental Claim against, or a material violation of Environmental Law or term of any Environmental Permit by, Seller.
(e)
Except as set forth in
Section 3.18(e)
of the Disclosure Schedule, no conditions exist at any of the Facilities which violates any applicable Environmental Laws (as hereinafter defined), including those Environmental Laws related to indoor or outdoor air quality.
(f)
Except as set forth in
Section 3.18(f)
of the Disclosure Schedule, there is no notice of violation, proceeding, inquiry, investigation, claim, demand or lawsuit pending nor, to the best of Seller’s Knowledge, threatened against Seller arising from any Environmental Laws or Hazardous Substances and related to the Business or any of the Facilities;
(g)
Except as set forth in
Section 3.18(g)
of the Disclosure Schedule: (i) Seller does not use nor has Seller used any Hazardous Substances at any of the Facilities; (ii) Seller has not used any of the Facilities for the treatment, storage or disposal of Hazardous Substances so as to require a permit pursuant to RCRA, and (iii) no spill or release of Hazardous Substances has occurred at any of the Facilities or, to the Knowledge of Seller adjacent to any of the Facilities while owned or operated by Seller.
(h)
Seller is in compliance in all material respects with and Seller has not violated any Environmental Laws.
(i)
Except as set forth in
Section 3.18(i)
of the Disclosure Schedule, no underground storage tanks, asbestos fibers or materials, urea-formaldehyde foam insulation, lead, radon or polychlorinated biphenyls are on or located at any of the Facilities, the Owned Real Property or the Leased Real Property.
(j)
To the best of Seller’s and/or Parent’s Knowledge, no portion of any of the Facilities, the Owned Real Property or the Leased Real Property is located on or over a “sanitary landfill” or an “open dump” within the meaning of RCRA.
(k)
No person has pursued a claim against Seller for impaired health due to any violations of applicable Environmental Laws regarding the indoor air quality of any of the Facilities and to the Knowledge of Seller, there are no existing violations of applicable Environmental Laws regarding the indoor air quality of any of the Facilities, the Owned Real Property or the Leased Real Property.
28.
Brokers and Finders
. Other than as set forth on
Section 3.19
of the Disclosure Schedule, no agent, broker, investment banker, financial advisor or other firm or person is entitled to any brokerage, finder’s, financial advisor’s or other similar fee or commission for which Purchaser or any of its Affiliates could become liable in connection with the transactions contemplated by this Agreement as a result of any action taken by or on behalf of Seller or any of its Affiliates.
29.
No Additional Severance
. Except as set forth on
Section 3.20
of the Disclosure Schedule, the Seller is not a party to any agreement, and has not established any policy or practice, requiring Seller to
make a payment or provide any other form of compensation or benefit to any Person performing services for Seller upon termination of such services, that would not be payable or provided in the absence of the consummation of the transactions contemplated by this Agreement.
30.
Fraudulent Conveyance
. The Seller and Real Estate Seller are solvent as of the Closing Date and will be solvent after the Closing Date. The Seller and Real Estate Seller, on the Closing Date, received from the Purchaser reasonably equivalent value for the transfer and sale of the Business and the Purchased Assets hereunder. After the Closing and sale hereunder, the Seller and the Real Estate Seller will be able to pay all of their debts as they become due.
31.
Computer System
. Unless otherwise set forth in a Transition Services Agreement between Purchaser and Sellers as of the Closing Date, the computer system(s) utilized for the Business and the Seller’s operation of the same
,
is included in the Purchased Assets, is self-contained at the Facilities and/or at a separate shared facility and/or location of an Affiliate and has performed all tasks required of it in the normal course of the Business. No licenses (except for licenses fully paid for and assigned under this Agreement to Purchaser) are required from third parties to exercise any rights with respect to any of such computer software. For there to be a breach of the representations and warranties under this Section 3.22, the breach(es) must be Material.
32.
No Liabilities
. Except for (i) liabilities or obligations which are disclosed in the financial statements of the Seller and Real Estate Seller which have been disclosed to Purchaser, (ii) liabilities or obligations incurred in the ordinary course of Business, (iii) liabilities or obligations disclosed in this Agreement, and (iv) liabilities or obligations not required by GAAP to be disclosed or reserved against, the Seller and the Real Estate Seller have no liabilities or obligations relating to the Business or the Purchased Assets.
33.
Customers
.
Section 3.24
of the Disclosure Schedule, sets forth with respect to the Business the names of all customers of Seller that ordered goods and services of more than Ten Million Dollars ($10,000,000) from Seller during the twelve (12) month period ended March 31, 2013 (the “Customers”). Other than matters of general economic or political nature which affect the Business and the general economy and/or matters disclosed in
Section 3.24
of the Disclosure Schedule, the Seller has not received any written notice nor has any Knowledge that any Customer of Seller (i) has ceased, or will cause to discontinue, the use of the products, goods or services of the Business, or (ii) has materially reduced or will materially reduce, the use of products, goods or services of the Business. Since January 1, 2012, Seller has not sold in volumes or provided discounts or other favorable payment terms for the sale of standard products to customers except to the extent consistently provided to customers prior to such date.
34.
Suppliers; Raw Materials
.
Section 3.25
of the Disclosure Schedule sets forth the names, addresses and phone numbers of all suppliers to the Business from which the Seller ordered raw materials, supplies, merchandise and other goods and services for the Business during the twelve (12) month period ended March 31, 2013 (the “Suppliers”). Other than matters of general economic or political nature which affect the Business and the general economy and/or other matters disclosed in
Section 3.25
of the Disclosure Schedule, the Seller has not received any written notice nor have any Knowledge of any dispute with a Supplier, or any material adverse change in the price of such raw materials, supplies, merchandise or other goods or services, or that any Supplier will not sell raw materials, supplies, merchandise and other goods to the Purchaser at any time after the Closing Date on terms and conditions similar to those used in its current sales to the Seller, subject to general and customary price increases. Since January 1, 2012, Seller has purchased and utilized raw materials, supplies, merchandise and other goods and services for the Business in volumes and on payment terms consistent with such purchases and utilization prior to such date.
35.
Product Warranties
.
Section 3.26
of the Disclosure Schedule contains a complete list of all express written warranties given to purchasers of products supplied by Seller in connection with the Business in the last thirty-six (36) months. The warranties comply in all material respects, with all federal and state laws and regulations. There are no pending or threatened claims with respect to any such warranty, and
Seller has no liability with respect to any such warranty, whether known or unknown, absolute, accrued, contingent or otherwise and whether due or to become due.
36.
Absence of Certain Business Practices
. Neither the Seller or any officer, director, employee or agent of Seller, or any other person acting on their behalf, has directly or indirectly, given or agreed to give any gift or similar benefit in an amount in excess of Ten Dollars ($10) aggregate in a twelve (12) month period to any customer, supplier, governmental employee or other person who is or may be in a position to help or hinder the Business (or assist Seller in connection with any actual or proposed transaction relating to the Business) (i) which subjected or might have subjected Seller to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) for any of the purposes described in Section 162(c) of the Code or (iii) for the purpose of establishing or maintaining any concealed fund or concealed bank account.
37.
Operation of the Business
. Other than as set forth on
Section 3.28
of the Disclosure Schedule, Seller has directly conducted the Business and has not conducted the Business through any Affiliate or any related parties or any other divisions or any direct or indirect subsidiary or Affiliate of Seller or through any entity that is owned in whole or in part by any of the members of Seller. No part of the Business is operated by Seller through any entity other than Seller. None of the Purchased Assets transferred and sold hereunder by the Seller or the Real Estate Seller to the Purchaser were transferred or assigned fraudulently or otherwise, from an Affiliate of Seller, and any such transfer and assignment was for full and adequate consideration.
38.
Full Disclosure
. No representation or warranty of Sellers contained in any other document, instrument, agreement, paper or other written statement or certificate maintained in the Sellers’ Due Diligence Data Room and made available to or delivered to Purchaser by Seller or the Real Estate Seller pursuant to this Agreement, or in connection with the transactions contemplated herein, contains a material omission, untrue statement of fact or omits or will omit to state a fact necessary to make the statement contained herein or therein not misleading. For there to be a breach under the representations and warranties under this Section 3.29, the breach(es) must be Material.
39.
Disclaimer of Additional Representations and Warranties
. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NONE OF SELLER OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AFFILIATES’ DIRECTORS, OFFICERS, EMPLOYEES, CONTROLLING PERSONS, AGENTS OR REPRESENTATIVES MAKES OR HAS MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ACCURACY OR COMPLETENESS OF ANY PROJECTIONS, ESTIMATES OR OTHER FORWARD LOOKING INFORMATION PROVIDED OR OTHERWISE MADE AVAILABLE TO PURCHASER OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, CONTROLLING PERSONS, AGENTS OR REPRESENTATIVES AS PART OF PURCHASER’S DUE DILIGENCE UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THIS TRANSACTION.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that:
40.
Due Incorporation
. Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Ohio with all requisite power and authority to own and operate its assets and properties as they are now being owned and operated.
41.
Due Authorization
. Purchaser has full power and authority to enter into this Agreement and its Related Agreements and to consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance by Purchaser of this Agreement and its Related Agreements have been duly authorized by all necessary corporate action of Purchaser. Purchaser has duly and validly executed and delivered this Agreement and has duly and validly executed and delivered (or prior to or at the Closing will duly and validly execute and deliver) its Related Agreements. This Agreement constitutes the legal, valid and binding obligation of Purchaser and its Related Agreements, upon execution and delivery by Purchaser will constitute legal, valid and binding obligations of Purchaser enforceable in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors’ rights generally and by equitable principles.
42.
Consents and Approvals; No Violations
. The execution, delivery and performance by Purchaser of this Agreement and its Related Agreements will not (i) violate any law, regulation or order of any Governmental Authority applicable to Purchaser; (ii) require any filing or registration by Purchaser with, or consent or approval with respect to Purchaser of, any Governmental Authority; (iii) violate or conflict with or result in a breach or default under any contract to which Purchaser is a party or by which Purchaser or any of its assets or properties are bound; or (iv) violate or conflict with the certificate of incorporation or by-laws of Purchaser, except where any such filing, registration, consent or approval, if not made or obtained, or any such violation, conflict, breach or default, would not have a material adverse effect on Purchaser or their respective ability to perform its obligations under this Agreement and their Related Agreements.
43.
Purchaser’s Examination
. Purchaser and its representatives have been afforded the opportunity to meet with, ask questions of and receive answers from the management of Seller in connection with the determination by Purchaser to enter into this Agreement and the Related Agreements and consummate the transactions contemplated hereby and thereby, and all such questions have been answered to the full satisfaction of Purchaser.
44.
Investigation; Limitation on Warranties
.
(a)
Purchaser acknowledges and agrees that neither Seller, nor any other Person acting on behalf of Seller or any of its Affiliates or representatives has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding Seller, the Business or the Purchased Assets, except as expressly set forth in this Agreement, the Related Agreements or as and to the extent required by this Agreement to be set forth in the Disclosure Schedule. Purchaser further agrees that neither Seller nor any other Person absent fraud and/or intentional misrepresentation, will have or be subject to any liability to Purchaser or any other Person resulting from the distribution or use by Purchaser, any of its Affiliates or any of their respective directors, officers, employees, agents, consultants, accountants, counsel or other representatives of any such information, and any legal opinions, memoranda, summaries or any other information, document or material made available to Purchaser or its Affiliates or representatives in certain “data rooms,” management presentations or any other form otherwise provided in expectation of the transactions contemplated by this Agreement.
(b)
Purchaser acknowledges and agrees that except for the representations and warranties of Seller and Real Estate Seller expressly set forth in Article III hereof, the Purchased Assets are being acquired AS IS WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE OR OTHER EXPRESSED OR IMPLIED WARRANTY. Purchaser acknowledges and agrees that it is consummating the transactions contemplated hereby without any representation or warranty, express or implied, by any Person, except for the representations and warranties of Seller and Real Estate Seller expressly set forth in Article III hereof.
(c)
In connection with Purchaser’s due diligence investigation of Seller and the Business, Purchaser has received from or on behalf of Seller certain projections, including projected statements of operating revenues and income from operations of the Business and certain business plan information of Seller. Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections and other forecasts and plans, that Purchaser is familiar with such uncertainties, that Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates,
projections and other forecasts and plans so furnished to it (including the reasonableness of the assumptions underlying such estimates, projections and forecasts), and that Purchaser shall have no claim against Seller or any other Person with respect thereto absent fraud and/or intentional misrepresentation. Accordingly, Seller makes no representations or warranties whatsoever with respect to such estimates, projections and other forecasts and plans (including the reasonableness of the assumptions underlying such estimates, projections and forecasts).
45.
Available Funds
. Purchaser has sufficient cash resources on hand in an aggregate amount sufficient to pay in cash any and all amounts required to be paid by it pursuant to this Agreement, including the Purchase Price and all fees and expenses related to the transactions contemplated by this Agreement to be paid by Purchaser.
46.
Brokers and Finders
. No agent, broker, investment banker, financial advisor or other firm or person is entitled to any brokerage, finder’s, financial advisor’s or other similar fee or commission for which Seller or any of its Affiliates could become liable in connection with the transactions contemplated by this Agreement as a result of any action taken by or on behalf of Purchaser or any of its Subsidiaries.
ARTICLE V
COVENANTS
47.
Access to Information and Facilities
.
(a)
From the date of this Agreement to the earlier of the Closing Date or the date this Agreement is terminated, subject to the Confidentiality Agreement, Seller shall give Purchaser and Purchaser’s representatives, upon reasonable notice, reasonable access during normal business hours to the offices, Facilities, books and records of the Business, and shall make the officers and employees of Seller and its Affiliates available to Purchaser and its representatives as Purchaser and its representatives shall from time to time reasonably request, in each case to the extent that such access and disclosure would not obligate Seller to take any actions that would unreasonably disrupt the normal course of its businesses or violate the terms of any contract to which Seller is bound or any Applicable Law;
provided
, that all requests for access shall be directed to David Jaeger in writing (the “
Designated Contacts
”);
provided
, further, that nothing herein shall require Seller to provide access or to disclose any information to Purchaser if such access or disclosure (i) would cause significant competitive harm to Seller if the transactions contemplated by this Agreement are not consummated or (ii) would be in violation of Applicable Laws or the provisions of any agreement to which Seller is a party. Other than the Designated Contacts, Purchaser is not authorized to and shall not (and shall cause its employees, agents, representatives and Affiliates to not) contact any officer, director, employee, franchisee, customer, supplier, distributor, lender or other material business relation of Seller prior to the Closing without the prior written consent of a Designated Contact. From and after the date this Agreement is fully executed by and among Purchaser, the Seller and the Real Estate Seller, Purchaser acknowledges that its access to the Facilities, offices, and books and records of the Business by Purchaser, and any communications with Seller or its employees, representatives and agents, shall not, absent actual fraud or other intentional misrepresentations on the part of the Sellers and/or its representatives, be the basis for termination of this Agreement or give rise to any other contingency to Closing, it being understood that Purchaser shall have conducted all the due diligence reasonable and necessary for the negotiation and entry into this Agreement prior to such date.
(b)
Purchaser and their representatives shall treat and hold strictly confidential any Confidential Information of the Seller in accordance with
Section 5.7
.
48.
Preservation of Business
. From the date of this Agreement until the Closing Date, other than as specifically contemplated by this Agreement or with the prior consent of Purchaser (such consent not to be unreasonably withheld or delayed), Seller shall operate the Business in the ordinary and usual course of business and consistent with past practice, including maintenance procedures; provided, however, that Seller shall be under no obligation to improve or upgrade the condition of the Purchased Assets from their present
condition. Without limiting the generality of the foregoing, Seller shall not, other than as specifically contemplated by this Agreement or with the prior consent of Purchaser (such consent not to be unreasonably withheld or delayed), sell, lease, transfer, assign or otherwise dispose of any assets used in the Business, other than the disposition of inventory in the ordinary course of business consistent with past practice.
49.
Efforts
. Subject to the terms and conditions hereof, each party hereto shall use its commercially reasonable efforts to consummate the transactions contemplated hereby as promptly as practicable. The “commercially reasonable efforts” of Seller shall not require Seller, its Affiliates or representatives to expend any money to remedy any breach of any representation or warranty hereunder, except as provided herein to obtain any consent required for consummation of the transactions contemplated hereby or to provide financing to Purchaser for consummation of the transactions contemplated hereby;
provided
that if Seller, its Affiliates or representatives elect to remedy such breach, and such breach is remedied within seven (7) days after such breach, Seller shall not be deemed to be in breach of such representation or warranty, or in violation of any covenant pursuant to
Section 5.2
, for purposes of determining Purchaser’s obligations to consummate the transactions contemplated hereby pursuant to
Section 6.1
.
50.
Preservation of Records; Post-Closing Access and Cooperation
.
(a)
For a period of seven (7) years after the Closing Date or such other period (if longer) required by applicable law, Purchaser shall preserve and retain, all corporate, accounting, legal, auditing, human resources and other books and records in its possession (including any documents relating to any governmental or non-governmental claims, actions, suits, proceedings or investigations) relating to the Business and the Purchased Assets prior to the Closing Date.
(b)
Purchaser shall, after the Closing Date, afford promptly to Seller and its representatives reasonable access during normal business hours to the offices, Facilities, books, records, officers and employees of the Business to the extent and for a purpose reasonably requested by Seller.
51.
Employees and Benefits
.
(a)
As of the Closing, Seller shall terminate the employment of all of those Employees identified on
Section 5.5(a)
of the Disclosure Schedule (the “
Subject Employees
”).
Section 5.5(a)
of the Disclosure Schedule hereto may be amended from time to time prior to the Closing to (i) delete any individuals who are no longer employed by Seller or (ii) upon the mutual written agreement of Purchaser and Seller, add or remove any other individuals. Purchaser shall, at least two (2) Business Days prior to the Closing Date and effective as of the Closing Date, extend a written offer of employment as reasonably determined by the Purchaser in its sole discretion and subject to Purchaser’s normal and customary interview, employment application, testing and hiring practices and procedures relate thereto, to each of the Subject Employees at a level and with responsibilities that, as determined exclusively by the Purchaser, are substantially commensurate with their employment with Seller and at a wage or salary and other compensation substantially similar to the respective wages or salaries and other compensation specified for such Subject Employees on
Section 5.5(a)
of the Disclosure Schedule; provided, however, that Purchaser shall, in cooperation with the Seller, extend offers to a sufficient number of Subject Employees in each of Seller’s plants in Auburn, Indiana, Pierceton, Indiana and Alma, Michigan to ensure that Seller’s WARN Act obligations are not triggered.
Those Subject Employees who accept offers of employment with Purchaser and who work for and become employees of Purchaser after the Closing Date are referred to as “
Hired Employees
.” Nothing in this section guarantees that Purchaser will offer employment to any Subject Employees or other employees of Seller, including those Subject Employees interviewed, or if such Subject Employees are hired by the Purchaser, guarantees such Hired Employee’s employment with the Purchaser for any period of time except as hereinafter provided in
Section 5.5(c)
below, or if hired by Purchaser, alters a Hired Employee’s status as an at will employee. No employee or former employee of Seller or of any of its Affiliates including the Subject Employees shall be entitled to any rights under this
Section 5.5
or except as specifically provided herein, under any other provision of this Agreement. Purchaser is not and shall not be considered under any circumstances, a successor employer of Seller. Further, except as specifically provided herein, Purchaser shall not be liable for any of Seller’s liabilities or obligations to Seller’s employees including the Subject
Employees or any termination of such Seller’s employees, including but not limited to wages, bonuses, benefits, retirement, commissions or stay on payments. Consistent with past practice, Seller shall continue to employ its employees until the Closing Date except for any such employee who, at any time prior to the Closing Date (i) is terminated for cause (ii) voluntarily resigns, (iii) retires or (iv) dies. Seller shall be responsible for all payments of salary, health care benefits and premiums, severance payments, payroll taxes, workers’ compensation claims and workers’ compensation premiums, wages and benefits to all of its employees or former employees (including the Subject Employees and inactive employees and former employees of Seller, whether contingent, accrued, or otherwise), including those provided under the Seller’s Benefit Plans or any of its other benefit programs and agreements or any other employee plans and/or programs of Seller.
(b)
For ninety (90) days following Closing, Purchaser shall provide (i) to each Hired Employee salary or wages, as provided above and (ii) to Hired Employees generally, employee benefits substantially similar, as determined exclusively by Purchaser, in the aggregate, than those provided to Hired Employees immediately prior to the Closing and, in all events, in compliance with all requirements of applicable Law. Upon Closing, the Purchaser agrees that the Hired Employees shall subject to the terms of such Purchaser Benefit Plans, be eligible immediately to commence participation in the employee benefit plans of Purchaser, including the group health plan of the Purchaser (the “Purchaser Benefit Plans”), without regard to any eligibility period or waiting period. Without limiting the foregoing, Purchaser shall take the following actions: (i) upon the Closing provide all Hired Employees health care coverage substantially similar as reasonably determined by the Purchaser in its sole but reasonable discretion to the coverage currently provided to Employees; (ii) if permitted under Purchaser’s health care plans and provided applicable documentation is received from the Sellers and/or the Hired Employees, provide each Hired Employee with credit under any Purchaser health care plans for any co-payments and deductibles paid by each Hired Employee to any Seller health care plan prior to the Closing for the plan year in which the Closing occurs in satisfying any applicable deductible, co-payment, co-insurance or any other out-of-pocket requirements; and (iii) for all purposes and if permitted under such Purchaser Benefit Plans (other than for purposes of benefit accruals under any defined benefit pension plan) under all benefit plans and policies applicable to the Hired Employees, including the Purchaser Benefit Plans, and if permitted under Purchaser Benefit Plans, treat all service by the Hired Employees with the Seller before the Closing, as service with Purchaser and its subsidiaries.
(c)
After Closing, Purchaser shall be responsible for any and all notices, liabilities, costs, payments and expenses arising from any action by Purchaser or the Purchaser’s operation of the Business (including breach of contract, defamation or retaliatory discharge) regarding any Hired Employees hired by Purchaser and related to work for Purchaser including any such liability (i) under any Applicable Law that relates to employees, employee benefit matters or labor matters, or (ii) for dismissal, wrongful termination or constructive dismissal or termination, or severance pay or other termination pay. Except for the employees related to the Clarksville, Tennessee Facility and the actual number of employees related to the wind down of the JTEKT business at the Auburn and Pierceton Facilities (currently estimated by the Sellers as of the execution date hereof to be twenty-four (24) employees at the Auburn Facility and seven (7) employees at the Pierceton Facility, but subject to increase on or prior to Closing, upon agreement between the Sellers and the Purchaser that additional employees have been made redundant due to JTEKT as provided above, such agreement not to be unreasonably withheld) for which Seller shall maintain full and complete responsibility, Purchaser shall pay, or cause to be paid, severance and provide benefits in accordance with the severance schedule set forth on
Section 5.5(c)
of the Disclosure Schedule to each Hired Employee identified by “Position” on
Section 5.5(c)
of the Disclosure Schedule whose employment is terminated by Purchaser or any Affiliate of Purchaser without “cause” (within the meaning set forth on
Section 5.5(c)
of the Disclosure Schedule) within ninety (90) days after the Closing Date. Seller shall be responsible for all of the above arising from any action or inaction by Seller or the Seller’s operation of the Business regarding any of its Employees including the Subject Employees, and all Clarksville, Tennessee Facility employees, the wind
down of the JTEKT business at the Auburn Facility and Pierceton Facility as provided above, or for any resulting obligation, if any, after the ninety (90) day period after the Closing Date.
(d)
Purchaser shall take all reasonable action necessary to permit Purchaser’s tax-qualified employee savings plan(s) maintained in the United States to accept rollover contributions of “eligible rollover distributions” (within the meaning of Section 402(c)(4) of the Code).
(e)
Except as set forth on
Section 5.5(e)
of the Disclosure Schedule and as specifically provided herein, Seller shall retain all, and Purchaser shall not assume and shall not be deemed to have assumed any, liability or responsibility for obligations or liabilities under, with respect to or arising in connection with any of Seller’s Benefit Plans, and Purchaser shall have all, and Seller shall not assume and shall not be deemed to have assumed any, liability or responsibility for obligations or liabilities under, with respect to or arising in connection with any Purchaser Benefit Plan.
(f)
During the period beginning on the Closing Date and ending on the last day of the plan year in which the applicable Closing Date occurs, Purchaser shall or shall cause its Affiliates, as the case may be, to (i) maintain health care, limited purpose healthcare spending and dependent care flexible spending accounts established under Section 125 of the Code (the “Purchaser FSA”), (ii) permit the Hired Employees to participate in the Purchaser FSA to the extent coverage under such Purchaser FSA replaces coverage under a corresponding Seller Benefit Plan in which such Hired Employee participated immediately before the replacement (the “Seller FSA”), (iii) provided such amounts are transferred to Purchaser, credit Hired Employees under the Purchaser FSA immediately following the applicable transfer date with amounts available for reimbursement equal to such amounts as were transferred and credited under the Seller FSA with respect to such person immediately prior to the applicable transfer date and (iv) give effect under the Purchaser FSA to any elections made by such Hired Employees with respect to the Seller FSA for the year in which the applicable transfer date occurs. As soon as reasonably practicable following the applicable Closing Date, if the net difference between (x) the aggregate employee contributions under the Seller FSA as of the applicable Closing Date made during the year in which the applicable Closing Date occurs and (y) the aggregate employee reimbursements under the Seller FSA as of the applicable Closing Date made during the year in which the applicable Closing Date occurs, in each case with respect to Hired Employees for the applicable plan year, (the “Assumed FSA Balance”) is (1) a positive number, then Seller shall transfer to Purchaser an amount, in cash, equal to the Assumed FSA Balance or (2) a negative number, then Purchaser shall transfer to Seller an amount, in cash, equal to the positive value of the Assumed FSA Balance. The parties hereto agree to make reasonable, good faith efforts to implement the provisions of this
Section 5.5(f)
to take into account the complexity of transferring flexible spending accounts.
(g)
Purchaser shall be responsible for the provision of group health plan continuation coverage pursuant to COBRA with respect to each Person who is a Hired Employee. Seller shall cause to be provided to all Employees and eligible former employees of Seller who were employed in the Seller’s Clarksville, Tennessee location, Sellers’ other facilities not acquired hereunder, and related to the wind down of the JTEKT business at the Auburn and Pierceton Facilities, as provided in (c) above, sufficient medical, mental health, vision, dental, and other group health plan benefits to satisfy the obligations, if any, of Seller under the continuation of coverage provisions described in Section 4980B of the Code and Sections 601 through 608 of ERISA and any similar continuation of health coverage provisions under applicable state law. Seller shall further be responsible for providing all required notices under COBRA and similar state laws with respect to all Employees and eligible former employees of Seller who were employed in the Seller’s Clarksville, Tennessee location, Seller’s other facilities not acquired hereunder and related to the wind down of the JTEKT business at the Auburn and Pierceton Facilities, as provided in (c) above. Except as specifically hereinafter identified, Purchaser is not assuming any COBRA obligations or responsibility of Seller regarding any Employee, including any Subject Employees hired by the Purchaser on or after the Closing. At Closing, the parties further agree as follows related to COBRA with respect to each Subject Employee who does not become a Hired Employee of the Purchaser on the Closing Date:
(i)
The obligation to provide notice and coverage related to COBRA to each Subject Employee who is not hired by the Purchaser shall remain with the Seller;
(ii)
For all employees related to the wind down of the JTEKT business at the Auburn Facility and the Pierceton Facility, as provided in (c) above, and thereafter for the first fifteen (15) former Subject Employees of the Seller not hired by the Purchaser on the Closing Date, the Seller shall pay for all health care costs and expenses related to claims made during the COBRA coverage period by such Subject Employees; and
(iii)
After accounting for the Subject Employees identified in Subsection (ii) above (i.e. the Auburn and Pierceton employees as provided in (c) above and thereafter the first fifteen (15) former Subject Employees), the Purchaser shall reimburse the Seller, net of the premiums received by the Seller from such former Subject Employees, for the final health care costs and expenses incurred by the Seller during the COBRA coverage period related to claims made by such Subject Employees not hired by the Purchaser.
(h)
As of Closing, the Seller shall assume and be solely responsible for any accrued and unpaid vacation and holidays to which Seller’s employees are entitled with respect to all periods of service up to and including the Closing Date under vacation and holiday policies and practices of the Seller or its Affiliates.
(i)
It is understood and agreed between the parties that all provisions contained in this Agreement with respect to employee benefit plans or employee compensation are included for the sole benefit of the respective parties hereto and do not and shall not create any right in any other person, including, but not limited to, any Employee, any Hired Employee, any participant in any benefit or compensation plan or any beneficiary thereof.
(j)
In any termination or layoff of any Hired Employee by Purchaser after the Closing, Purchaser will comply fully, if applicable, with the WARN Act and all other applicable foreign, Federal, state and local laws, including those prohibiting discrimination and requiring notice to employees. Purchaser shall not at any time prior to ninety (90) days after the Closing Date, effectuate a “plant closing” or “mass layoff” as those terms are defined in the WARN Act affecting in whole or in part any Facility, site of employment, operating unit or employee of the Business without complying fully with the requirements of the WARN Act. Purchaser will bear the cost of compliance with (or failure to comply with) any such laws after the Closing Date. Seller will bear the cost of compliance with (or failure to comply with) any such laws, including the WARN Act as of the Closing Date and the termination of its Employees hereunder with respect to those Employees and former employees at its Clarksville, Tennessee location Seller’s other facilities not acquired hereunder; and as applicable, if triggered by the release of employees at the Auburn Facility or the Pierceton Facility, as provided in (c) above, related to the wind down of the JTEKT business at the Auburn and Pierceton Facilities and with respect to its Clarksville, Tennessee location, Seller’s other facilities not acquired hereunder, and as applicable, if triggered by the release of employees at the Auburn Facility or the Pierceton Facility, as provided in (c) above, related to the wind down of the JTEKT business at the Auburn and Pierceton Facilities, Seller shall be responsible for any and all liabilities, obligations and notifications relating to or required under the Worker Adjustment Retraining and Notification Act (“WARN”) (and/or any applicable plant closing law in the states where the Facilities are located) resulting from the transactions contemplated by this Agreement and applicable to Seller’s businesses, the Business and its active employees, inactive employees and former employees. Notwithstanding the above, except for Clarksville, Tennessee as provided above or the wind down of the JTEKT business at the Auburn and Pierceton Facilities as provided in (c) above, no plant closing, reduction in operations, permanent or temporary shutdown of a single site of employment or mass lay off by Purchaser (as defined by WARN) (or any applicable state plan closing law)
with respect to the Facilities or the Business acquired hereunder are contemplated by the Purchaser from the date after the Closing Date through the ninetieth (90
th
) day after the Closing Date.
(k)
Welfare Plans
. Seller’s Benefits Plans and other benefit programs and agreements shall be liable for any and all claims for benefits by Seller’s Employees, inactive employees or former employees for covered expenses incurred, or attributable to events that occurred on or prior to the Closing Date and Purchaser’s plans, if any, shall be liable for any and all claims for benefits by former employees of the Seller hired by Purchaser for covered expenses incurred after the hiring of such former employees after the Closing Date and to the extent such expenses are attributable solely to events that occurred after the hiring of such former employees and their employment with the Purchaser after the Closing Date. Without limiting the above, Purchaser is not assuming any liabilities or obligations under any of Seller’s disability plans or welfare plans, the Benefit Plans or any other benefit programs and agreements of Seller, including any verbal promises for post-retirement medical benefits or severance plans.
(l)
Non-Qualified Retirement, Deferred Compensation Plans and Severance Plans
. Purchaser is not assuming any liabilities or obligations of Seller for any retirement benefits or disability benefits to Seller’s Employees, inactive employees or former employees of Seller, whether or not applicable to the Benefit Plans or any other benefit programs and agreements of Seller. Purchaser is not assuming any liabilities or obligations of Seller for severance benefits to Seller’s Employees who are terminated on or after the Closing Date; except as provided in
Section 5.5(c)
, above.
(m)
Vacation, Sick Leave and Paid Time Off (collectively the “PTO Plans”)
. Purchaser is not assuming any liabilities or obligation under any Seller PTO Plans. Seller’s PTO Plans shall be liable for any and all claims for benefits by Seller’s Employees, inactive employees or former employees for covered expenses incurred or attributable to events that occurred on or prior to the Closing Date and Purchaser’s PTO Plans shall be liable for any and all claims for benefits by Hired Employees hired by Purchaser for covered expenses incurred after the hiring of such former employees after the Closing Date and to the extent such expenses are attributable solely to events that occurred after the hiring of such former employees and their employment with the Purchaser after the Closing Date and further relate to Purchaser’s operation of the Business after the hiring of such former employees after the Closing Date.
(n)
Workers’ Compensation
. Seller’s workers’ compensation plans and/or programs shall be liable for any and all covered claims for workers’ compensation benefits by Seller’s Employees, inactive employees or former employees of Seller to the extent such claims are for injuries that occurred or diseases that are attributable to events on or prior to the Closing Date, and Purchaser’s workers’ compensation plans or programs shall be liable for any and all covered claims for workers’ compensation benefits by former employees of the Seller hired by Purchaser to the extent such claims are for injuries that occurred or diseases which are attributable solely to events after the hiring of such former employees and their employment with the Purchaser after the Closing Date and related to Purchaser’s operation of the Business after the hiring of such former employees after the Closing Date.
Section 5.5(n)
of the Disclosure Schedule is a list of all Seller’s Employees, inactive employees and former employees of Seller who filed for workers’ compensation benefits which are still active and all persons who have filed applications for workers’ compensation benefits which have not been concluded as of the Closing Date. On the Closing Date, Seller shall provide to Purchaser a certificate verifying proof of workers’ compensation coverage for its employees both active and inactive, and that all workers’ compensation premiums have been paid as related to the Seller and/or its employees both active and inactive.
52.
Confidentiality
.
(a)
General
. Pursuant to the terms of this Agreement, Purchaser and Seller (in such capacity, the “
Disclosing Party
”) has disclosed and will be disclosing to the other Party, and to its Affiliates and to their
respective officers, directors, employees, agents and/or representatives (in such capacity, the “
Receiving Party
”) certain secret, confidential or proprietary data, trade secrets, know-how, intellectual property and related information, including, without limitation, operating methods and procedures, marketing, manufacturing, distribution and sales methods and systems, sales figures, pricing policies and price lists and other business information (“
Confidential Information
”). The Receiving Party shall make no use of any Confidential Information of the Disclosing Party except in the exercise of its rights and the performance of its obligations set forth in this Agreement or the Related Agreements. The Receiving Party (i) shall keep and hold as confidential, and shall cause its officers, directors, employees, agents and representatives to keep and hold as confidential, all Confidential Information of the Disclosing Party, and (ii) shall not disclose, and shall cause its officers, directors, employees, agents and representatives not to disclose, any Confidential Information of the Disclosing Party. Confidential Information disclosed by the Disclosing Party shall remain the sole and absolute property of the Disclosing Party, subject to the rights granted in this Agreement or the Related Agreements.
(b)
Exceptions
. The restrictions set forth in
Section 5.6(a)
above on the use and disclosure of Confidential Information shall not apply to any information which (i) is already known to the Receiving Party at the time of disclosure by the Disclosing Party (other than Confidential Information which forms a part of the Purchased Assets), as demonstrated by competent proof (other than as a result of prior disclosure under any agreement between the Parties with respect to confidentiality), (ii) is or becomes generally available to the public other than through any act or omission of the Receiving Party in breach of this Agreement or the Related Agreements or (iii) is acquired by the Receiving Party from a third party who is not, directly or indirectly, under an obligation of confidentiality to the Disclosing Party with respect to same. In addition, nothing in this
Section 5.6
shall be interpreted to limit the ability of either party to use or disclose its own Confidential Information in any manner to or any other Person.
(c)
Permitted Disclosures
. It shall not be a breach of
Section 5.6(a)
if a Receiving Party discloses Confidential Information of a Disclosing Party (i) pursuant to a binding requirement of Applicable Law or a Governmental Authority, (ii) in a judicial, administrative or arbitration proceeding to enforce such party’s rights under this Agreement, or (iii) if Purchaser, Seller or Seller’s Affiliates, including, without limitation, Revstone Industries, LLC, disclose Confidential Information as may be necessary or advisable in seeking the bankruptcy court’s approval (the “Bankruptcy Court”) of this Agreement and related transactions in the Revstone Industries, LLC Bankruptcy Case, Case No. 12-13262, in the U.S. Bankruptcy Court for the District of Delaware (the “Bankruptcy Case”) as contemplated in
Sections 6.4
. In such event, the Receiving Party shall (A) provide the Disclosing Party with as much advance written notice as possible of the required disclosure, (B) reasonably cooperate with the Disclosing Party in any attempt to prevent or limit the disclosure, and (C) limit disclosure, if any, to the specific purpose at issue.
(d)
Confidential Terms
. Each party acknowledges and agrees that the terms and conditions of this Agreement shall be considered Confidential Information of each party and shall be treated accordingly. Notwithstanding the foregoing, each Party acknowledges and agrees that (i) the other may be required to disclose some or all of the information included in this Agreement in order to comply with its obligations under securities laws or the rules or regulations of any securities exchange or market on which the disclosing Party’s or its Affiliate’s stock is traded, and (ii) nothing herein shall limit or preclude Purchaser, Seller or an affiliate from filing this Agreement in the Revstone Industries, LLC (“Revstone”) Bankruptcy Case in connection with the satisfaction of the condition described in
Section 6.4
hereof or limit or preclude Seller from disclosing this Agreement or information related hereto with a third party, including, but not limited to the Unsecured Creditors’ Committee in the Bankruptcy Case.
(e)
Equitable Remedies
. Each party specifically recognizes that any breach by it of this
Section 5.6
may cause irreparable injury to the other Parties and that actual damages may be difficult to ascertain, and in any event, may be inadequate. Accordingly (and without limiting the availability of legal or equitable, including injunctive, remedies under any other provisions of this Agreement), each Party agrees that in the event of any such breach, notwithstanding the provisions of
Section 9.4
, the other Parties shall be entitled
to seek, by way of private litigation in the first instance, injunctive relief and such other legal and equitable remedies as may be available.
53.
Public Announcements
. Purchaser and Seller will consult with each other before issuing any press release or otherwise making any public statements or disclosures with respect to the transactions contemplated by this Agreement, including the terms hereof, and no party shall, without the prior written consent of the other party, issue any such press release or make any such public statement, except as may be required by applicable law, provided, however, that Purchaser, Purchaser’s Affiliates, Seller or Seller’s Affiliates, including, without limitation, Revstone Industries, LLC, may make public statements or disclosures with respect to the transactions contemplated by this Agreement and make disclosure as may be necessary or advisable in seeking the court’s approval of this Agreement and related transactions in the Revstone Industries, LLC Bankruptcy Case as contemplated in
Section 6.4.
54.
Transfer Taxes
. All federal, state, local, non-U.S. transfer, excise, sales, use, value added, registration, stamp, recording, property and similar Taxes or fees applicable to, imposed upon, or arising out of any transaction contemplated by this Agreement shall be paid by Sellers.
5.9
Information and Access
. Between the date of this Agreement and the Closing Date, Seller shall afford to the officers and authorized representatives and agents of Purchaser (“Purchaser Representatives”) reasonable access to and the right to reasonably inspect the Facilities, properties, Purchased Assets, books and records of Sellers relating to the Business, which right shall not include the right to conduct invasive tests or inspections without Seller’s written consent, and will furnish Purchaser Representatives with such additional financial and operating data and other information relating to the Business or the Purchased Assets as Purchaser may from time to time reasonably request. Purchaser’s right of access and inspection shall be made in such a manner as not to unreasonably interfere with the operations of the Business, or otherwise . Notwithstanding the foregoing, Purchaser understands that with respect to financial information and legal matters including litigation matters, if requested by Purchaser, Sellers will provide such documents and information to Purchaser’s outside attorneys and accountants (who will be bound by confidentiality agreements) for their review. During the course of Purchaser’s due diligence and review of Sellers, the Business and the Purchased Assets, Purchaser and Purchaser Representatives as applicable, in cooperation with the Seller will be granted access to and meetings with any and all customers, vendors, Employees or other third parties related to the Business, including creditors as reasonably determined by the Purchaser. Notwithstanding the foregoing, from and after the date this Agreement is executed by Purchaser, Purchaser acknowledges that its access to information as provided herein, and to the Facilities, offices, and books and records of the Business by Seller, and any communications with Sellers or its employees, representatives and agents, shall not be the basis for termination of this Agreement or give rise to any other contingency to Closing, it being understood that Purchaser shall have conducted all the due diligence reasonable and necessary for the negotiation and entry into this Agreement prior to such date.
5.10
Operations
. From the date hereof until the Closing Date, Sellers shall use diligent and commercially reasonable efforts to:
(a)
carry on Seller’s Business in substantially the same manner as Seller has heretofore and not make any material change in personnel, operations, finance, accounting policies, or real or personal property of the Business;
(b)
maintain the Purchased Assets and all parts thereof in good working order and condition, ordinary wear and tear excepted;
(c)
take all actions necessary and appropriate to render title to the Purchased Assets free and clear of all liens, security agreements, claims, charges and encumbrances (except for the Permitted Liens) and to obtain necessary releases, assignments and consents;
(d)
keep in full force and effect present insurance policies or other comparable insurance; and
(e)
operate the Business in compliance with
Section 2.6(c)(vi)
and
Section 5.14
hereof.
5.11
Negative Covenants
. From the date hereof to the Closing Date, Seller shall not, without the prior written consent of Purchaser:
(a)
make offers of employment to any persons who are employed by Seller as of the date hereof for periods subsequent to Closing, other than those Employees who are not offered or who do not accept offers of post-closing employment from Purchaser; provided, however, that this
Section 5.11(a)
shall not prohibit Seller from making general, public solicitations for particular positions or job classifications and employing persons who respond thereto:
(b)
create, assume or permit to exist any new Lien upon any of the Purchased Assets, whether now owned or hereafter acquired, except for Permitted Encumbrances; or
(c)
sell, assign or otherwise transfer or dispose of any property, facility or equipment (other than supplies), except in the ordinary course of business with comparable replacement thereof.
5.12
Governmental Approvals
. Between the date hereof and the Closing Date, Seller and Purchaser will cooperate to: (a) use commercially reasonable efforts to obtain, as promptly as practicable, all approvals, authorizations and clearances of any Governmental Authority, including the issuance of the Bankruptcy Order as set forth in
Section 6.4
to consummate the transactions set forth herein; and (b) provide such other information and communications to any Governmental Authority or such authorities that may reasonably request.
5.13
Notices of Certain Events
. Seller shall promptly notify Purchaser of:
(a)
any notice or other written communication from any Person alleging that the consent of such Person is or maybe required in connection with the consummation of this Agreement and the transactions contemplated hereunder;
(b)
any material written communication from any Governmental Authority including the Bankruptcy Court, in connection with or relating to this Agreement and the transactions hereunder; and
(c)
the commencement of any actions, suits, investigations or proceedings within or outside the Bankruptcy Court relating to Seller or the Business that, if pending on the date of this Agreement, would have been in violation of
Section 3.14
.
5.14
Limited Shop Period
. In accordance with and subject to
Section 8.1(a)
of this Agreement, from the date of execution of this Agreement and continuing through June 20, 2013, Seller and its investment bankers, attorneys, advisors or other representatives shall, consistent with the terms and conditions of this Agreement, be permitted to, directly or indirectly, solicit proposals from or execute written binding agreements from third parties to purchase all or any part of the Business and the Purchased Assets (“Limited Shop Period”). After such Limited Shop Period, provided that there are no higher and better competing offers, proposals or binding written agreements with Seller for the purchase of the Business and/or the Purchased Assets, the Limited Shop Period shall automatically expire, this Agreement shall be named the Successful Bid and Purchaser shall have exclusivity under this Agreement related to the transactions contemplated hereunder and the sale and purchase of the Purchased Assets and/or Business through the earlier of the Closing Date hereunder or the termination of this Agreement as provided herein (the “Exclusivity Period”).
5.15
Non-Competition
.
(a)
For a period of three (3) years from and after the Closing Date, Sellers and all of its Affiliates and/or related parties and/or officers, including George Hoffmeister, covenant and agree that they shall not, directly or indirectly within a five hundred (500) mile radius of any Facility (the “Territory”) own, operate, construct or lease a facility which in any manner whatsoever that competes with the Business.
(b)
For a period of three (3) years from and after the Closing Date, Sellers and all of its Affiliates and/or related parties and/or officers, including George Hoffmeister, covenant and agree that they shall not, within the Territory, directly or indirectly sell or solicit the sale of the products or services of the Business to any of the Customers identified in
Section 3.24
.
(c)
If the restrictions set forth in
Sections 5.15(a)
and
(b)
above or any part thereof should, for any reason whatsoever, be declared invalid by a court of competent jurisdiction, the validity or enforceability of the remainder of such restriction shall not thereby be adversely affected. Seller and its Affiliates and related parties agree that the foregoing territorial/market and time limitations are reasonable and properly required for the adequate protection of the Purchaser and the Business and that in the event that any such territorial/market or time limitation is deemed to be unreasonable by a court of competent jurisdiction, then Seller and its Affiliates and related parties agree and submit to the reduction of either said territorial/market or time limitation or both to such an area, market or period as said court shall deem reasonable. In the event that Seller or its Affiliates or related parties should violate the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the period of time during which such breach or breaches shall have occurred; and in the event Purchaser be required to seek relief from such breach from any court, board of arbitration or other tribunal, then the covenant shall be extended for a period of time equal to the pendency of such proceedings, including all appeals.
(d)
The covenants not to compete and not solicit set forth in
Sections 5.15(a)
and
(b)
are made in consideration of Purchaser and Seller undertaking their respective obligations pursuant to this Agreement and for no further consideration payable hereunder or otherwise.
(e)
Purchaser acknowledges that nothing in this
Section 5.15
, or this Agreement as a whole, prohibits or limits the Sellers’ and/or its Affiliates’ or officers’ rights or ability to continue to operate their other business enterprises, in the ordinary course and in substantially the same manner they are currently operated, regardless of where such business enterprises are located, provided such other businesses do not directly and materially compete with the Business.
5.16
Injunctive Relief
. Seller and its officers, directors, Affiliates and related parties, acknowledge that the restrictions contained in
Section 5.15
are reasonable and necessary to protect the legitimate interests of the Purchaser, and that any violations of any provision of
Section 5.15
will result in irreparable injury to Purchaser and that, therefore, Purchaser shall be entitled to preliminary and permanent injunctive relief in any court of competent jurisdiction and to an equitable accounting and payment to Purchaser of all earnings, profits and other benefits arising from such violation (including payment to Purchaser of Purchaser’s attorneys’ fees incurred in enforcing this Agreement), which rights shall be cumulative and in addition to any other rights or remedies to which the Purchaser may be entitled.
5.17
Update of Schedules
. As of the execution date of this Agreement, Sellers will have prepared and delivered certain agreed to Disclosure Schedules, and full and complete copies of Acquired Contracts, Acquired Real Property Leases, Acquired Personal Property Leases, Permits and Licenses to the Purchaser. (“Signing Date Schedules”) From the date hereof until the Closing Date, the Sellers shall prepare and deliver to Purchaser the additional Disclosure Schedules, including all additional Acquired Contracts, Acquired Real
Property Leases, Acquired Personal Property Leases, Permits and Licenses, not completed and delivered upon execution of this Agreement (collectively, the “Remaining Schedules”) and updated and/or amended Signing Date Schedules, and any supplements or updates thereto.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
OF PURCHASER
The obligations of Purchaser at Closing under this Agreement are subject to the satisfaction (or waiver by Purchaser) of each of the following conditions precedent on or before the Closing Date:
55.
Warranties True as of Present Date
.
(a)
Each of the representations and warranties of Seller and Real Estate Seller contained in
Article III,
including the Disclosure Schedules, (i) that are qualified as to Material Adverse Effect shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent such representations and warranties expressly relate to an earlier date (in which case, as of such earlier date)), except to the extent of changes or developments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby, and (ii) that are not so qualified shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent such representations and warranties expressly relate to an earlier date (in which case, as of such earlier date)), except to the extent of changes or developments contemplated specifically by the terms of this Agreement or caused by the transactions contemplated hereby and except for failures of the representations and warranties referred to in this
clause (ii)
to be true and correct as do not and would not reasonably be expected to have, in the aggregate, a Material Adverse Effect.
(b)
All of the Remaining Schedules, as referenced in Section 5.17, and any updates, modifications or supplements to the Disclosure Schedules provided after execution of this Agreement, shall not identify or disclose any matters that would have a Material Adverse Effect or be materially adverse to the ongoing operations of the Business.
56.
Compliance with Agreements, Covenant and Disclosure Schedule
. Seller and Real Estate Seller shall have performed and complied with all of the covenants, obligations and agreements contained in this Agreement or any Related Agreement to be performed and complied with by them on or prior to the Closing Date, except as otherwise permitted by Purchaser and except as would not have a Material Adverse Effect. Further, all Disclosure Schedules to be updated or modified by Seller after the execution of this Agreement and on or before the Closing Date shall be acceptable to Purchaser and not form the basis for delay of Closing or otherwise the termination of this Agreement absent a showing of Material Adverse Effect.
57.
No Prohibition
. No law or injunction shall have been adopted, promulgated or entered by any Governmental Authority which prohibits, and no lawsuit, proceeding or investigation shall be pending, which question or challenge the validity or legality or opposes the consummation of the transactions contemplated hereby.
6.4
Court Approval/Waiver
. Sellers shall cause Sellers’ parent, Revstone, within two (2) Business Days of execution of this Agreement by Purchaser
and Sellers, to move in the Bankruptcy Case for entry an order in substantially the same form and substance as set forth in the motion and related order attached hereto as
Exhibit 6.4
(“Bankruptcy Order”). The issuance of a final non-appealable Bankruptcy Order, unless waived in writing by the Purchaser, is a condition to Closing hereunder, subject in all respects to the provisions of
Section 6.16
, below. Sellers and Revstone shall use diligent and commercially reasonable efforts to obtain such Bankruptcy Order on or before July 18, 2013. If the Bankruptcy Court, based on a decision on the merits, rules against entry of the Bankruptcy Order or expressly disapproves of the relief requested in the Bankruptcy Order, then either at Sellers’ or Purchaser’s option, this Agreement may be terminated and the Deposit immediately returned to Purchaser. If the Bankruptcy Court, on or before July 18, 2013, does not
issue the Bankruptcy Order, materially changes the Bankruptcy Order from the form and substance of the Bankruptcy Order, or otherwise abstains from ruling with respect to the Agreement or the Bankruptcy Order, then at either Purchaser’s option or Sellers’ option, unless the Sellers and the Purchaser otherwise agree in writing, this Agreement shall be terminated and the Deposit immediately returned to Purchaser.
6.5
Receipt of Consents
. Seller and its Affiliates shall have received all consents of Seller’s and its Affiliates secured lenders and other third parties required for Seller to consummate the transactions contemplated hereby.
6.6
Officer Certificates
. Seller and Real Estate Seller shall have furnished Purchaser with such closing certificates of its officers and others to evidence compliance as of the Closing Date with the conditions set forth in this Article VI as may be reasonably requested by Purchaser.
6.7
Corporate Action
. Seller and Real Estate Seller shall have delivered to Purchaser on or prior to the Closing Date, as applicable, a good standing certificate from the Delaware Secretary of State’s office and each Secretary of State’s Office where there is a Facility; and certified resolutions of the respective board of managers, members and independent committee of Seller and Real Estate Seller, authorizing Seller and Real Estate Seller to consummate the transactions contemplated hereunder.
6.8
Acquired Contracts; Disclosure Schedules
. Simultaneously with the Closing, as applicable, the Acquired Contracts, Acquired Real Property Leases and Acquired Personal Property Leases and the Permits and/or Licenses and the Environmental Permits shall be assigned to and/or assumed by the Purchaser and all consents from third parties related thereto, as applicable and provided herein, shall be received. The parties hereto acknowledge and agree that this Agreement may be executed prior to the Disclosure Schedules being completed and attached hereto and prior to Purchaser reviewing all of the Acquired Contracts, Acquired Real Property Leases, Acquired Personal Property Leases and the Permits and/or Licenses. As such, the Closing of this Agreement and the transactions completed hereunder is subject to and strictly contingent upon the approval of all Remaining Schedules and any proposed amendments by Sellers to the Signing Date Schedules from the date hereof through Closing (as defined in
Section 5.17
) by Purchaser, which approval shall not to be unreasonably withheld. Any objection by Purchaser to any of the Remaining Schedules or proposed amendments by Sellers to the Signing Date Schedules shall be made, in writing, to Sellers on or before the earlier of five (5) Business Days after receipt of the final Remaining Schedule(s) or amendments/updates to the Signing Date Schedule(s), as applicable, or the Closing Date, otherwise any such objections to the Remaining Schedules and/or the amendments/updates to the Signing Date Schedules, are waived.
6.9
Transfer Documents
. As applicable, Seller and Real Estate Seller shall have delivered to the Purchaser on or before the Closing Date in proper form for recording where appropriate, the Deeds and Bill of Sale related to the Purchased Assets in the forms attached hereto as Exhibit A and the assignments and other good and sufficient instruments of transfer conveying and transferring to Purchaser the entire right, title and interest of Seller and/or Real Estate Seller in and to the Purchased Assets as provided in this Agreement including the Owner’s Fee Policies (the “Transfer Documents”).
6.10
UCC-3
. Seller shall have delivered to the Purchaser acceptable, updated and current UCC, tax, judgment, bankruptcy and lien searches related to the Seller and the Real Estate Seller, the Business and the Purchased Assets and, if applicable, Seller and Real Estate Seller shall deliver UCC-3 termination statements from any lien holder, mortgagee, and/or secured lenders of Seller or the Real Estate Seller to be duly recorded with the appropriate governmental office to confirm the release of any liens on any of the Purchased Assets.
6.11
Insurance Certificate
. Seller shall have delivered to Purchaser on or before the Closing Date, a certificate of insurance relating to the insurance coverage set forth in
Section 11.25
hereof.
6.12
Environmental Site Assessments
. In cooperation with the Seller and Real Estate Seller, and if requested by the Purchaser, the Purchaser shall have obtained on the Owned Real Property, the Leased Real Property and the Facilities, updates of the existing Phase I Environmental Site Assessment(s), the results of which are acceptable to the Purchaser in its sole, but reasonable, discretion.
6.13
Tax Escrow
. The Sellers and Purchaser agree to escrow on the Closing Date from the proceeds of Closing, the sum of Eight Hundred Twenty-Five Thousand Dollars ($825,000) (the “Tax Escrow”). The Tax Escrow will be released proportionately to the Sellers as they file and pay any and all tax returns and/or tax obligations plus interest and penalties of the Sellers not previously filed and/or paid by the Sellers for periods on or prior to the Closing Date. The Purchaser will have the opportunity to review and confirm the tax returns and tax payments within thirty (30) days before any Tax Escrow is released. If the Purchaser pays any outstanding tax obligations on behalf of the Sellers for periods on or prior to the Closing Date, a portion of the Tax Escrow commensurate with the tax obligations paid by Purchaser will be released to the Purchaser. The Sellers will have the opportunity to review and confirm the tax payments within thirty (30) days before any Tax Escrow is released to the Purchaser. Other than amounts and time periods as provided in this
Section 6.13
, such Tax Escrow shall generally be consistent with the terms and conditions of the Deposit escrow as identified in
Section 2.6(a
). The term of the Tax Escrow shall be twenty (24) months subsequent to Closing (the “Tax Escrow Period”). If at the end of the Tax Escrow Period there are any funds remaining in the Tax Escrow, such remaining funds shall be distributed to the Sellers; provided, however, if the Sellers fail to file and pay any tax returns and/or tax obligations not previously filed and/or paid by the Sellers for periods on or prior to the Closing Date, at the end of the Tax Escrow Period, if there are any funds remaining in the Tax Escrow, such remaining funds shall be distributed to the Purchaser.
6.14
General Escrow
. The Sellers and the Purchaser further agree to escrow on the Closing Date from the proceeds, One Million Dollars ($1,000,000) to be utilized by the Purchaser after the Closing for the satisfaction of the obligations and/or liabilities of the Sellers under this Agreement (the “General Escrow”). Claims against the General Escrow may only be made by Purchaser after which time as there has accrued or been asserted against or by Purchaser or any of its Affiliates, obligations and/or liabilities and/or Losses aggregating an amount exceeding Five Hundred Sixty Thousand Dollars ($560,000) (the “General Escrow Threshold Amount”). In calculating the General Escrow Threshold Amount, only individual claims and/or Losses in excess of Ten Thousand Dollars ($10,000) (the “Minimum Escrow Claim Amount”) may be aggregated to meet the General Escrow Threshold Amount; and after meeting the General Escrow Threshold Amount, claims and/or Losses against the General Escrow shall revert back to and start at Dollar One ($1) for all claims and/or Losses and the General Escrow shall be available for such purposes. Other than amounts and time periods as provided in this
Section 6.14
, such general escrow shall generally be consistent with the terms and conditions of the Deposit escrow as identified in
Section 2.6(a).
The term of the General Escrow shall be twenty-four (24) months subsequent to Closing (the “General Escrow Period”), subject to adjustment as hereinafter provided. If at the end of the first twelve (12) months of the General Escrow Period, no individual claim or Loss against or by the Purchaser has been made equal to or greater than the Minimum Claim Amount, then fifty percent (50%) of the General Escrow shall be released to Sellers; if after the next six (6) month period no individual claim or Loss against or by the Purchaser has been made equal to or greater than the Minimum Claim Amount, then fifty (50%) of the balance remaining in the General Escrow shall be released to Sellers; and if at the end of the General Escrow Period there are any funds remaining in the General Escrow, and no claim or Loss against or by Purchaser has been made equal to or greater than the Minimum Claim Amount, such General Escrow shall be released to Sellers.
6.15
Pension Benefit Guaranty Corporation
. Sellers and certain of its Affiliates shall have obtained a definitive, enforceable and executed settlement agreement with the PBGC (“PBGC Agreement”) that is acceptable to Sellers, and with respect to the Purchaser, acceptable as to the release provisions only, as hereinafter provided with respect to the PBGC Obligations and the sale and/or disposition of the Purchased Assets pursuant to this Agreement on or before July 16, 2013. The PBGC Agreement must fully, unconditionally and completely release any claims and/or liens of the PBGC against the Purchaser and the Purchased Assets, which release provided in the PBGC Agreement must be acceptable to Purchaser. Upon and after Closing, Sellers shall not use or disburse any of the proceeds of the sale of the Purchased Assets in contravention of the terms of the PBGC Agreement.
6.16
Bankruptcy Order Finality
. In the event a party objects to the motion filed by Revstone seeking entry of the Bankruptcy Order pursuant to
Section 6.
4 of this Agreement ("Objection"), and the Bankruptcy Court enters the Bankruptcy Order, in substantially the same form and substance as the proposed Bankruptcy Order attached as
Exhibit 6.4
hereto, over any such Objection, and the entered Bankruptcy Order is timely appealed by the party that filed the Objection, then the Purchaser shall have the option, to be expressed in writing to Sellers made within two (2) Business Days after the filing of the appeal, to either (a) timely Close the sale of the Purchased Assets under this Agreement notwithstanding the existence of such appeal, or (b) terminate this Agreement. In the event Purchaser opts to terminate this Agreement in accordance with sub-section (b), above, then Purchaser shall immediately forfeit to the Sellers the sum of One Million Four Hundred Thousand Dollars ($1,400,000)(the "Forfeiture") from the Deposit, which Forfeiture amount shall be immediately paid to Sellers by the Escrow Holder, and the balance of the Deposit refunded to Purchaser.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF Seller
The obligations of Seller at Closing under
Article II
of this Agreement are subject to the satisfaction (or waiver by Seller) of the following conditions precedent on or before the Closing Date:
58.
Warranties True as of Present Date
. Each of the representations and warranties of Purchaser contained in
Article IV
(a) that are qualified as to “material adverse effect” shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent such representations and warranties expressly relate to an earlier date (in which case, as of such earlier date)), except to the extent of changes or developments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby, and (b) that are not so qualified shall be true and correct as of the Closing Date as if made anew as of such date (except to the extent such representations and warranties expressly relate to an earlier date (in which case, as of such earlier date)), except to the extent of changes or developments contemplated by the terms of this Agreement or caused by the transactions contemplated hereby and except for failures of the representations and warranties referred to in this
clause (b)
to be true and correct as do not and would not reasonably be expected to have, in the aggregate, a material adverse effect on Purchaser’s ability to consummate the transactions contemplated hereby.
59.
Compliance with Agreements and Covenants
. Purchaser shall have performed and complied with all of its covenants, obligations and agreements contained in this Agreement to be performed and complied with by it on or prior to the Closing Date, in all material respects.
60.
No Prohibition
. No law or injunction shall have been adopted, promulgated or entered by any Governmental Authority which prohibits and no lawsuit, proceeding or investigation shall be pending, which would be reasonably expected to prohibit the consummation of the transactions contemplated hereby.
7.4
Pension Benefit Guaranty Corporation
. Sellers and certain of its Affiliates shall have obtained a definitive, enforceable and executed settlement agreement with the PBGC (“PBGC Agreement”) that is
acceptable to Sellers, and with respect to the Purchaser, acceptable as to the release provisions only, as hereinafter provided, with respect to the PBGC Obligations and the sale and/or disposition of the Purchased Assets pursuant to this Agreement on or before July 16, 2013. The PBGC Agreement must release any claims and/or liens of the PBGC against the Purchaser and the Purchased Assets, which release provided in the PBGC Agreement must be acceptable to Purchaser. Upon and after Closing, Sellers shall not use or disburse any of the proceeds of the sale of the Purchased Assets in contravention of the terms of the PBGC Agreement.
7.5
Customer Agreements
. Sellers shall have obtained agreements with its customers Chrysler, Ford and Nexteer, satisfactory to Sellers, in their sole discretion, with respect to the sales support of the Sellers ("Customer Agreements") on or before the Bankruptcy Court hearing date with respect to the Bankruptcy Order. If the Sellers fail to obtain the Customer Agreements on or before the Bankruptcy Court hearing date, then Sellers have the option to, in writing, either (a) waive this condition to Closing, or (b) terminate this Agreement, at which time the Deposit shall be fully refunded to Purchaser.
ARTICLE VIII
Sale Process
8.1
Sale Process
.
(a)
This Agreement is subject to the consideration by Seller of proposals for any Alternative Transaction. Consistent with
Section 5.14,
during the Limited Shop Period, Seller shall be permitted, and may cause its representatives to initiate contact with, and solicit or encourage submission of, written proposals or binding agreements by any persons or entities (other than from Purchaser and its Affiliates and representatives) in connection with the direct or indirect sale, transfer or other disposition, in one or more simultaneous transactions, by one or more persons or entities, of all or substantially all of the Purchased Assets
,
(“Alternative Bid”); provided, however, that any such other Alternative Transaction(s), no matter how classified, shall guarantee and confirm financing of the Purchase Price with no financing contingency therein, provide for the payment of an aggregate purchase price exceeding five percent (5%) of the “Purchase Price” with Purchaser of Fifty-Four Million Four Hundred Thousand Dollars ($54,400,000) after accounting for the purchase price adjustments set forth in
Section 2.6,
and provide a refundable deposit related thereto of ten percent (10%) of the “Purchase Price” (the “Initial Overbid”). In evaluating whether an Alternative Bid, or an aggregate of Alternative Bids, meets the 5% value threshold, above, to constitute a qualified Initial Overbid, Sellers may, in their sole and absolute discretion, assign a reasonable monetary value to non-monetary provisions or omissions in such Alternative Bid or Alternative Bids. For example, but not by way of limitation, the Sellers may assign reasonable monetary value to an Alternative Bid that does not contain a condition for the Sellers to obtain a final, non-appealable Bankruptcy Order. In the event that during the Limited Shop Period the Sellers receive an Alternative Bid or Alternative Bids that qualify as an Initial Overbid, thereafter, Seller may, in Sellers’ absolute and sole discretion, hold an auction on June 25, 2013 (“Auction”) to entertain additional offers from Purchaser or those parties who submitted Alternative Bids. At the Auction, subsequent bids shall be in increments of Five Hundred Thousand Dollars ($500,000) over and above the Initial Overbid purchase price (the “Subsequent Bids”). At Sellers’ sole and absolute discretion, Sellers shall have the right to terminate the acceptance of Subsequent Bids and declare the party, or the parties with the highest and best bid for the purchase of all or substantially all of the Purchased Assets the successful bidder (“Successful Bidder”). Simultaneously thereafter, Seller shall be permitted to enter into a definitive agreement with the Successful Bidder in accordance with the terms of its bid and which includes a non-refundable deposit as similarly provided herein, equivalent to ten percent (10%) of the final purchase price agreed to by such Successful Bidder. For the avoidance of doubt, an Alternative Transaction shall include any such proposals or offers for any transactions that provides for the sale or sales of all or substantially all of the Purchased Assets to any party or parties other than to Purchaser or its Affiliates. Without limiting the foregoing, consistent with
Section 5.14
, during the Limited Shop Period, Seller and its representatives shall
be permitted to respond to any inquiries or offers with respect to an Alternative Transaction and perform any and all other acts related thereto, under applicable law, or are appropriate to fulfill Seller’s fiduciary duties, including, without limitation, supplying information relating to the Purchased Assets to prospective purchasers.
(b)
Break-Up Fee; Return of Deposit
. In consideration of Purchaser’s due diligence, good faith negotiations and entry into this Agreement, and as reimbursement of Purchaser’s expenses incurred in connection with the transactions contemplated by this Agreement, Purchaser shall be entitled to a break-up fee of Two Million Dollars ($2,000,000) (the “Break-Up Fee”) as follows:
(i)
The Break-Up Fee shall be paid by the Sellers to the Purchaser if an Alternative Transaction is executed and at the time such Alternative Transaction closes (i.e. purchase price funds are wired and/or transferred);
(ii)
Purchaser’s right to the Break-Up Fee and the return of the Deposit and any other deposits hereunder shall be the sole and exclusive remedy of Purchaser if this Agreement is terminated pursuant to
Section 8.1(b)
. In no event shall Purchaser be entitled to a the Break-Up Fee on account of a termination of this Agreement pursuant to any other Section of this Agreement (other than this
Section 8.1(b)
);
(iii)
This Agreement and the transactions contemplated hereunder may be terminated by Sellers or the Purchaser upon the signing of an Alternative Transaction. Upon signing of an Alternative Transaction, Sellers shall cause the Deposit, and any other deposits made by Purchaser hereunder, to be returned to Purchaser within three (3) Business Days.
ARTICLE IX
TERMINATION
61.
Termination
. This Agreement may be terminated at any time on or prior to the Closing Date:
(a)
with the mutual written consent of the Purchaser and Seller;
(b)
By either the Purchaser or Seller if the Closing shall not have occurred on or before August 2, 2013 (the “Termination Date”); provided, that the right to terminate this Agreement under this
Section 9.1(b)
shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before the Termination Date;
(c)
By Seller, if Purchaser shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Article VII and (B) has not been or is incapable of being cured by Purchaser within thirty (30) calendar days after its receipt of written notice thereof from Seller or if any of the conditions set forth in
Article VII
are not satisfied and/or complied with as of the Closing Date and the reason thereof is not the result of Seller’s actions or inactions, except as specifically permitted therein;
(d)
By Purchaser, in accordance with
Section 5.6
, if Seller shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Article VI and (B) has not been or is incapable of being cured by Seller within thirty (30) calendar days after its receipt of written notice thereof from Purchaser or if any of the conditions set forth in
Article VI
are not satisfied and/or complied with as of the Closing Date and the reason thereof is not the result of Purchasers actions or inactions, except as specifically permitted therein;
(e)
By Seller if (i) all of the conditions set forth in Article VI (including
Section 6.4
) have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing) and (ii) (A) Purchaser
shall not have sufficient funds available to consummate the Closing or (B) Purchaser otherwise breaches its obligations under Article II hereof;
(f)
By either Purchaser or Seller if any Governmental Authority, including the Bankruptcy Court in the Bankruptcy Case, shall have issued an order, decree or ruling, or taken any other action expressly restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement;
(g)
By either the Purchaser or the Seller if the Bankruptcy Court Order is not issued by the Bankruptcy Court on or before July 18, 2013;
(h)
By Purchaser, in accordance with
Section 8.1(b)
;
(i)
By Seller, in accordance with
Section 8.1(a) and (b)
;
(j)
By Purchaser, between the date of this Agreement and the Closing Date, if an event or series of events have occurred that has a Material Adverse Effect on the Business, the Purchased Assets or the Seller;
(k)
By Purchaser or Sellers if the transactions contemplated by this Agreement has not Closed on or before August 2, 2013.
Notwithstanding anything else contained in this Agreement, the right to terminate this Agreement under this
Section 9.1
shall not be available to any party (a) that is in material breach of its obligations hereunder or (b) whose failure to fulfill its obligations or to comply with its covenants under this Agreement has been the cause of, or resulted in, the failure to satisfy any condition to the obligations of either party hereunder.
62.
Expenses
. Whether or not the Closing occurs, all Expenses, as hereinafter deferred, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such Expenses. As used in this Agreement, “
Expenses
” means the out-of-pocket fees and expenses of the party’s independent advisor, counsel and accountants, incurred or paid by the party or on its behalf in connection with this Agreement and the transactions contemplated hereby.
63.
Effect of Termination
. In the event of termination of this Agreement by either Purchaser or Seller as provided in
Section 9.1
, this Agreement will forthwith become void and have no further force or effect, without any liability (other than as set forth in
Section 9.2
or this
Section 9.3
) on the part of Purchaser or Seller;
provided
,
however
, that the provisions of
Sections 8.1(b), 9.2
, this
Section 9.3
Sections 5.1(b)
,
5.7
,
11.6
,
11.12
and
11.13
will survive any termination hereof;
provided
,
further
,
however
, that subject to the terms of this
Section 9.3
and
Section 2.6(a)
, nothing in this
Section 9.3
shall relieve any party of any liability for any breach by such party of this Agreement. If the Purchaser terminates this Agreement as provided above, except for a termination pursuant
Section 6.16
, in which case the return of Deposit provisions of
Section 6.16
control, the Deposit and any additional funds deposited by the Purchaser with the Escrow Agent or the Escrow Holder shall simultaneously therewith be returned to Purchaser.
ARTICLE X
SURVIVAL AND REMEDY; INDEMNIFICATION
64.
Survival
.
(a)
Except as provided in
Section 10.1(b)
below, the warranties and representations of Seller, Real Estate Seller and Purchaser contained herein, or in any instrument or document delivered or to be delivered pursuant to this Agreement, shall survive the execution of this Agreement and the Closing Date;
provided
,
however
, that the related agreements to indemnify Purchaser for breaches of representation and warranties set forth in this
Article X
shall survive and continue for, and all indemnification claims with respect
thereto, shall be made prior to the end of eighteen (18) months after the Closing Date; provided, however, that in the case of representations and warranties and related indemnities for which an indemnification claim shall be pending as of the end of the period referred to above, such indemnities shall survive with respect to such indemnification claim until the final disposition thereof (as applicable, the “
Standard Representation and Warranty Indemnification Period
”).
(b)
Survival of Special Representations and Warranties
. Notwithstanding the above, the following representations and warranties of Seller and Real Estate Seller (the “Special Representation and Warranties”) shall survive as follows:
(i)
Section 3.6(a)
(Title to Purchased Assets) shall not expire;
(ii)
Section 3.1
(Due Incorporation),
Section 3.2
(Due Authorization),
Section 3.3
(No Violation),
Section 3.4
(Consents and Approvals),
Section 3.5
(Compliance with Laws),
Section 3.7
(Taxes),
Section 3.11
and
3.13
(Labor Matters, Benefit Plans, etc. and Employee Benefits),
Section 3.18
(Environmental Matters),
Section 3.23
(No Liabilities),
Section 3.21
(Fraudulent Conveyance) and
Section 3.28
(Operation of Business) shall survive this Agreement until one (1) day after the expiration of the applicable statute of limitations (as applicable, the “Extended Representation and Warranty Indemnification Periods”).
(c)
After the timeframes set forth in (a) and (b) above, neither Sellers nor Purchaser shall be under any obligation or liability whatsoever with respect to any such representation or warranty. No party shall have any right to assert any claims against the other party with respect to any Loss, cause of action or other claim to the extent it is (i) primarily a possible or potential Loss, cause of action or claim that such party believes may be asserted rather than a Loss, cause of action or claim that has, in fact, been asserted in writing or filed of record against such party or one of its Affiliates or paid or incurred by such party or one of its Affiliates or (ii) a Loss, cause of action or claim with respect to which a party or any of its Affiliates has taken action (or caused action to be taken), without the consent of the other party, to accelerate the time period in which such matter is asserted or payable.
(d)
Survival of Excluded Liabilities and Other Matters
. There shall be no limitation of the survival of the agreements of the Seller and Real Estate Seller regarding the Excluded Liabilities, or the breach or non-performance of or by Seller or Real Estate Seller of any agreement, covenant or obligation to be performed by Seller or the Real Estate Seller which is contained in this Agreement, or in any Disclosure Schedule, certificate, Related Agreement, or other document delivered pursuant hereto or claims related to Seller’s operation of the Business.
65.
Indemnification by Sellers
. Sellers shall indemnify Purchaser and its Affiliates, and each of their respective officers, directors, partners, trustees, employees, stockholders, representatives and agents, against, and agrees to hold them harmless from, any and all Losses incurred or suffered by Purchaser or any of the foregoing Persons (or any combination thereof) arising out of (i) any breach of or any inaccuracy in any representation or warranty made by Seller or Real Estate Seller pursuant to
Article III
of this Agreement, including Disclosure Schedules, or any Related Agreement; (ii) any material breach of or failure by Seller to perform any agreement, covenant or obligation of Seller set out in this Agreement or any Related Agreement, any agreement, or instrument contemplated hereby, any document relating hereto or thereto or contained in any Exhibit to this Agreement, (iii) any and all Excluded Liabilities, (iv) any acts or omissions by Seller or Real Estate Seller and any obligations and liabilities in respect of the Seller or Real Estate Seller on or before the Closing Date and (v) any claims related to the ownership, use or operation of the Business and/or Purchased Assets by Seller or Real Estate Seller on or prior to the Closing Date.
66.
Indemnification by Purchaser
. Purchaser shall indemnify Seller and its Affiliates, and each of their respective officers, directors, partners, trustees, employees, stockholders, representatives and agents, against, and agrees to hold them harmless from, any and all Losses incurred or suffered by Seller or any of the foregoing Persons (or any combination thereof) arising out of (i) any breach of or any inaccuracy in any representation or warranty made by Purchaser pursuant to
Article IV
of this Agreement or any Related Agreement; (ii) any breach of or failure by Purchaser to perform any agreement, covenant or obligation of Purchaser set out in this Agreement or any Related Agreement, any agreement, or instrument contemplated hereby, any document relating hereto or thereto or contained in any Exhibit to this Agreement; (iii) any Assumed Liabilities; and (iv) any acts or omissions by Purchaser and any obligations and liabilities in respect of the Purchaser after the Closing Date.
67.
Intentionally Omitted
.
68.
Third-Party Claims
. Except as otherwise provided in this Agreement, the following procedures shall be applicable with respect to indemnification pursuant to this
Article X
relating to or arising out of claims, actions by Governmental Authorities or other third parties. Promptly after receipt by the party seeking indemnification hereunder (hereinafter the “
Indemnitee
”) of notice of the commencement of any (a) Tax audit or proceeding for the assessment of any Tax by any Taxing authority or any other proceeding likely to result in the imposition of a liability or obligation for Taxes or (b) any action or the assertion of any claim, liability or obligation by a Governmental Authority or a third party (whether by legal process or otherwise), against which claim, liability or obligation a party under this
Article X
(hereinafter the “
Indemnitor
”) that is, or may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee will, if a claim thereon is to be, or may be, made against the Indemnitor pursuant to this
Article X
, promptly notify the Indemnitor in writing of the commencement or assertion thereof, including the amount and specific factual and legal basis for such claim, and give the Indemnitor a copy of such claim, process and all legal pleadings and other written evidence thereof. The Indemnitor shall have, in all instances, the right to participate in the defense of such action with counsel of reputable standing. The Indemnitor shall have the right to assume the defense of such action unless such action (a) may result in orders or mandatory injunctions materially impacting the Indemnitee’s on-going operation of the Business or its other businesses, or (b) may result in liabilities which, taken with other then-existing claims under this
Article X
, would not be fully indemnified hereunder. The Indemnitor shall have twenty (20) days, after receipt of notice of such claim, process, legal proceeding and other written notice, to assume the defense thereof. If the Indemnitor does assume such defense, it will, within such twenty (20) days, so notify the Indemnitee. If the Indemnitor does not assume such defense and so notifies the Indemnitee, or if the Indemnitor is barred from assuming such defense pursuant to this
Section 10.5
, then the Indemnitee shall have the right to assume such defense, subject to the participation of the Indemnitor, as provided in this
Section 10.5
, and the Indemnitee’s fees and expenses (including reasonable fees and expenses of counsel) in connection with such defense will be borne by the Indemnitor. In any case, the Indemnitor and Indemnitee shall cooperate and assist each other in such defense, and shall make available to the other all records, documents, employees and information (written or otherwise) relevant to such defense. Prior to paying any claim against which an Indemnitor is, or may be, obligated under this Agreement to indemnify an Indemnitee, the Indemnitee must first supply the Indemnitor with a copy of a final court judgment or decree, or evidence of assessment of Taxes or a similar final action by a Taxing authority, holding the Indemnitee liable on such claim or failing such judgment or decree, must first receive the written approval of the terms and conditions of such settlement from the Indemnitor which consent shall not be unreasonably withheld. The Indemnitor’s consent shall not be required for settlements (a) which consist principally of equitable remedies in respect of the Indemnitee or its business, or (b) that result in payments by the Indemnitee which, taken with other then existing claims under this
Article X
, would not be subject to indemnification hereunder. An Indemnitor or Indemnitee shall have the authority to settle or compromise any claim for which it has assumed or conducted the defense pursuant to this
Section 10.5
;
provided
, that an Indemnitor shall not settle or compromise any such claim if such settlement or compromise would result in an order, injunction or other equitable remedy in respect of the Indemnitee, or would otherwise
have a direct effect upon Indemnitee’s continuing operations, or would result in liabilities which, taken together with other existing claims under this
Article X
, would not be fully indemnified hereunder; in each case, without the prior written consent of the Indemnitee, which consent will not be unreasonably withheld. An Indemnitee shall have the right to employ its own counsel in any case, but the fees and expenses of such counsel shall be at the expense of the Indemnitee, unless (x) the employment of such counsel shall have been authorized in writing by the Indemnitor in connection with the defense of such action or claim, (y) the Indemnitor shall not have assumed the defense, or shall be barred from assuming the defense, of such action or claim pursuant to this
Section 10.5
, or (z) such Indemnitee shall have reasonably concluded that there may be defenses available to it which are contrary to, or inconsistent with, those available to the Indemnitor, or the Indemnitor and Indemnitee are in conflict, in any of which events such reasonable fees and expenses of counsel for the Indemnitee shall be borne by the Indemnitor, in accordance with the following paragraph.
69.
Procedure for Other Claims
. In the event that any Indemnitee believes that it is entitled to claim indemnification from an Indemnitor under this
Article X
and such claim is not subject to
Section 10.5
, the Indemnitee shall notify the Indemnitor of such claim, the amount or estimated amount thereof and the specific factual and legal basis for such claim (which will be described in reasonable detail). The Indemnitor and Indemnitee will proceed, in good faith, to agree on the amount of such indemnification claim. If they are unable to agree on the amount of such indemnification claim within thirty (30) days after such notice, then the indemnification claim will be submitted to arbitration conducted pursuant to the rules and procedures of the American Arbitration Association. The place of such arbitration shall be Wilmington, Delaware, or such other location mutually agreed in writing by the Seller and Purchaser. The determination of the amount of any indemnification claim pursuant to this
Section 10.6
will be final, binding and conclusive, and the Indemnitee, upon final determination of the amount of the indemnification claim, will be paid by the Indemnitor within ten (10) days of such final determination, the full amount, in cash, of such indemnification claim, as finally determined, and will be entitled to apply to any court or authority of competent jurisdiction described in
Section 11.12
to enforce such payment. The court costs and reasonable and documented fees and expenses, including reasonable and documented attorney’s fees, incurred by the Indemnitor and Indemnitee in connection with any such enforcement proceeding shall be borne by the Indemnitor and Indemnitee in inverse proportion to their relative success in such proceeding.
70.
Indemnification Limits
.
(a)
Except for claims or Losses for breaches for Special Representations and Warranties, or covenants, agreements or obligations of Seller or Real Estate Seller which shall start at dollar one ($1.00), Purchaser shall not be entitled to indemnification pursuant to
Section 10.2
with respect to any breach or misrepresentation of any representation or warranty until such time as its respective aggregate right to such indemnification exceeds One Hundred Thousand Dollars ($100,000) (it being agreed that in the event such threshold is reached and exceeded, Seller will only be liable for Losses in excess of such amount). Except for claims or Losses for breaches of the representations and warranties in
Section 3.6(a)
and
Section 3.21,
which are not limited, Seller’s obligation to indemnify Purchaser for breaches of the representations and warranties under this Agreement shall not exceed Four Million Five Hundred Thousand Dollars ($4,500,000) in the aggregate, which amount shall be the limit of the recourse of Purchaser on account of any such breach of the representations and warranties hereunder. For purposes of clarity, Excluded Liabilities and breaches of covenants, agreements and obligations and the representations and warranties in Section 3.6(a) and Section 3.21, are not subject to any limitations.
(b)
Purchaser will not be entitled to indemnification pursuant to this Article X with respect to any claim or liability (i) relating to a breach by Seller of a representation or warranty before the Closing Date if Seller supplemented the Disclosure Schedule to provide new information or correct such misrepresentation and Purchaser accepted such supplemental Disclosure Schedule and the Closing hereunder occurs; (ii) relating to any Hired Employee and (a) as the result of such Hired Employee being hired by the Purchaser and thereafter the termination of such employee’s employment with the Purchaser or its Affiliates after the Closing Date, or (b) any injuries to, or deaths or illnesses of, such Hired Employees occurring after the Closing Date
and while working for the Purchaser, (c) as a result of the employment with Purchaser of any person on and after the Closing Date or (d) any action by Purchaser subsequent to the Closing Date.
(c)
From and after the Closing, Purchaser and Seller shall both maintain or cause to be maintained customary occurrence based product liability, insurance in respect of the Business and the Purchased Assets while owned and operated by such party in accordance with general practices and industry standards.
(d)
Any amounts payable under
Section 10.2
or
Section 10.3
or
Section 10.5
shall be treated by Purchaser and Seller as an adjustment to the Purchase Price, and shall be calculated after giving effect to (i) any proceeds received or receivable from insurance policies covering the damage, loss, liability or expense that is the subject to the claim for indemnity, (ii) any proceeds received from third parties, through indemnification, counterclaim, reimbursement arrangement, contract or otherwise in compensation for the subject matter of an indemnification claim by such Indemnitee (such arrangements referenced in clauses (i) through (ii) in this
Section 10.7(d)
, collectively, “Alternative Arrangements”), and (iii) the Tax Advantage to the Indemnitee resulting from, or as a consequence of, the damage, loss, liability or expense that is the subject of the indemnity. Without limiting clause (iii) of the preceding sentence and subject to
Section 10.7(e)
, the taking of a Tax deduction in connection with any such damage, loss, liability or expense that is subject to a claim for indemnification shall be at the discretion of the Indemnitee.
(e)
Purchaser shall utilize its commercially reasonable efforts, consistent with normal practices and policies and good commercial practice, to mitigate any amounts payable under
Section 10.2
, including pursuing any and all other rights and remedies to (i) collect any proceeds pursuant to Alternative Arrangements covering the Loss that is the subject to the claim for indemnity and (ii) obtain the Tax Advantage to the Indemnitee resulting from the Loss that is the subject of the indemnity. If any such proceeds, benefits or recoveries are received by Purchaser with respect to any Losses after Purchaser has received any indemnification payments from Seller, Purchaser shall promptly, but in any event no later than ten (10) Business Days after the receipt, realization or recovery of such proceeds, benefits or recoveries, pay such proceeds, benefits or recoveries to Seller. Upon making a payment to Purchaser in respect of any Losses, Seller will, to the extent of such payment, as applicable and provided Purchaser has not earlier received payments from such Alternative Arrangements or third party be subrogated to all rights of Purchaser pursuant to Alternative Arrangements or against any third party in respect of the Losses to which such payment relates. Purchaser shall execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights. Each party hereby waives any subrogation rights that its insurer may have with respect to any indemnifiable Losses.
ARTICLE XI
MISCELLANEOUS
71.
Amendment
. This Agreement may be amended, modified or supplemented only in a writing signed by Purchaser and Seller.
72.
Notices
. Any notice, request, instruction or other document to be given hereunder by a party hereto shall be in writing and shall be deemed to have been given, (i) when received if given in person or by courier or a courier service, (ii) on the date of transmission if sent by confirmed facsimile, (iii) on the next Business Day if sent by an overnight delivery service, or (iv) five (5) Business Days after being deposited in the U.S. mail, certified or registered mail, postage prepaid:
(a)
If to Seller or Real Estate Seller, addressed as follows:
Contech Castings, LLC
21177 Hilltop Drive
Southfield, MI 48033
Attention: Chief Restructuring Officer
Facsimile No.: 248-351-1055
with a copy to:
Contech Castings, LLC
2250 Thunderstick, Ste. 1203
Lexington, KY 40505
Attention: Office of the General Counsel
Facsimile No.: 859-294-9568
(b)
If to Purchaser, addressed as follows:
Shiloh Die Cast Midwest LLC
c/o Shiloh Industries, Inc.
880 Steel Drive
Valley City, Ohio 44280
Attention: Ramzi Hermiz, President and Chief Executive Officer
Facsimile No.: 734-354-3179
E-Mail: rhermiz@shiloh.com
with a copy to:
Wegman, Hessler & Vanderburg
6055 Rockside Woods Boulevard, Suite 200
Cleveland, Ohio 44131
Attention: Steven E. Pryatel, Esq.
Facsimile No.: 216-642-8826
E-Mail: sepryatel@wegmanlaw.com
or to such other individual or address as a party hereto may designate for itself by notice given as herein provided.
73.
Waivers
. The failure of a party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a party of any condition or of any breach of any term, covenant, representation or warranty contained
in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty.
74.
Counterparts
. This Agreement may be executed in counterparts and such counterparts may be delivered in electronic format (including by fax and email). Such delivery of counterparts shall be conclusive evidence of the intent to be bound hereby and each such counterpart and copies produced therefrom shall have the same effect as an original. To the extent applicable, the foregoing constitutes the election of the Parties to invoke any law authorizing electronic signatures.
75.
Interpretation
. The headings preceding the text of Articles and Sections included in this Agreement and the headings to Sections of the Disclosure Schedule are for convenience only and shall not be deemed part of this Agreement or the Disclosure Schedule or be given any effect in interpreting this Agreement or the Disclosure Schedule. The use of the masculine, feminine or neuter gender herein shall not limit any provision of this Agreement. The use of the terms “including” or “include” shall in all cases herein mean “including, without limitation” or “include, without limitation,” respectively. Underscored references to Articles, Sections, Exhibits or Schedules shall refer to those portions of this Agreement. Time is of the essence of each and every covenant, agreement and obligation in this Agreement. Neither Purchaser nor Seller shall be deemed to be in breach of any covenant contained in this Agreement if such party’s deemed breach is the result of any action or inaction on the part of the other.
76.
Applicable Law
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
77.
Binding Agreement
. This Agreement and the Related Agreements shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
78.
Assignment
. This Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns; provided that neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned (including by operation of law) by Purchaser prior to Closing without the prior written consent of Seller, which shall not be unreasonably withheld. For all purposes hereof, any transfer, sale or disposition of a majority of the capital stock or other voting interest of Purchaser prior to Closing (whether by contract or otherwise) shall be deemed an assignment hereunder. Any purported assignment in contravention of this
Section 11.8
shall be null and void.
79.
Third Party Beneficiaries
. This Agreement is solely for the benefit of the parties hereto and their Affiliates and no provision of this Agreement shall be deemed to confer upon third parties, either express or implied, any remedy, claim, liability, reimbursement, cause of action or other right. Notwithstanding the foregoing, the Persons referred to in
Sections 5.6
,
5.7
and
Article X
are hereby made third party beneficiaries of this Agreement, with all of the rights, remedies, claims, liabilities, reimbursements, causes of action and other rights accorded such Persons under this Agreement and the Related Agreements.
80.
Further Assurances
. Upon the reasonable request of Purchaser or Seller, each party will on and after the Closing Date execute and deliver to the other parties such other documents, assignments and other instruments as may be reasonably required to effectuate completely the transactions contemplated hereby, and to effect and evidence the provisions of this Agreement and the Related Agreements and the transactions contemplated hereby.
81.
Entire Understanding
. The Exhibits, Schedules and Disclosure Schedule identified in this Agreement are incorporated herein by reference and made a part hereof. This Agreement and the Related Agreements set forth the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements, representations and understandings among the parties.
82.
Jurisdiction of Disputes
. SUBJECT TO
SECTION 10.6 AND SECTION 5.16
, IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY
RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, WITH RESPECT TO ANY OF THE MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, THE PARTIES TO THIS AGREEMENT HEREBY (A) AGREE THAT SUBJECT TO
SECTION 10.6
AND
SECTION 5.16
, ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION SHALL BE INSTITUTED IN A COURT OF COMPETENT JURISDICTION LOCATED WITHIN THE CITY OF WILMINGTON, STATE DELAWARE OR FEDERAL COURT FOR THE DISTRICT OF DELAWARE; (B) AGREE THAT IN THE EVENT OF ANY SUCH LITIGATION, PROCEEDING OR ACTION, SUCH PARTIES WILL CONSENT AND SUBMIT TO PERSONAL JURISDICTION IN ANY SUCH COURT DESCRIBED IN
CLAUSE (A)
OF THIS
SECTION 11.12
AND TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE WITH THE RULES AND STATUTES GOVERNING SERVICE OF PROCESS (IT BEING UNDERSTOOD THAT NOTHING IN THIS
SECTION 11.12
SHALL BE DEEMED TO PREVENT ANY PARTY FROM SEEKING TO REMOVE ANY ACTION TO A FEDERAL COURT IN CINCINNATI, OHIO); (C) AGREE TO WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, PROCEEDING OR ACTION IN ANY SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ACTION WAS BROUGHT IN AN INCONVENIENT FORUM; (D) DESIGNATE, APPOINT AND DIRECT CT CORPORATION SYSTEM AS ITS AUTHORIZED AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS AND DOCUMENTS IN ANY LEGAL PROCEEDING IN THE STATE OF DELAWARE; (E) AGREE TO NOTIFY THE OTHER PARTIES TO THIS AGREEMENT IMMEDIATELY IF SUCH AGENT SHALL REFUSE TO ACT, OR BE PREVENTED FROM ACTING, AS AGENT AND, IN SUCH EVENT, PROMPTLY TO DESIGNATE ANOTHER AGENT IN THE STATE OF DELAWARE, SATISFACTORY TO THE REPRESENTATIVE AND PARENT, TO SERVE IN PLACE OF SUCH AGENT AND DELIVER TO THE OTHER PARTY WRITTEN EVIDENCE OF SUCH SUBSTITUTE AGENT’S ACCEPTANCE OF SUCH DESIGNATION; (F) AGREE AS AN ALTERNATIVE METHOD OF SERVICE TO SERVICE OF PROCESS IN ANY LEGAL PROCEEDING BY MAILING OF COPIES THEREOF TO SUCH PARTY AT ITS ADDRESS SET FORTH IN
SECTION 11.2
FOR COMMUNICATIONS TO SUCH PARTY; (G) AGREE THAT ANY SERVICE MADE AS PROVIDED HEREIN SHALL BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (H) AGREE THAT NOTHING HEREIN SHALL AFFECT THE RIGHTS OF ANY PARTY TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
83.
WAIVER OF JURY TRIAL
. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 11.13
.
84.
Disclosure Schedule
. The disclosures in the Disclosure Schedule are to be taken as relating to the representations and warranties of Seller as a whole, notwithstanding the fact that the Disclosure Schedule is arranged by sections corresponding to the sections in this Agreement or that a particular section of this Agreement makes reference to a specific section of the Disclosure Schedule and notwithstanding that a
particular representation and warranty may not make a reference to the Disclosure Schedule. The inclusion of information in the Disclosure Schedule shall not be construed as an admission that such information is material to any of Seller or the Business. In addition, matters reflected in the Disclosure Schedule are not necessarily limited to matters required by this Agreement to be reflected in the Disclosure Schedule. Such additional matters are set forth for informational purposes only and do not necessarily include other matters of a similar nature. Neither the specifications of any dollar amount in any representation or warranty contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedule is intended to imply that such amount, or higher or lower amounts, or the item so included or other items, are or are not material, and no party shall use the fact of the setting forth of any such amount or the inclusion of any such item in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not material for purposes of this Agreement. Further, neither the specification of any item or matter in any representation or warranty contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedule is intended to imply that such item or matter, or other items or matters, are or are not in the ordinary course of business, and no party shall use the fact of setting forth or the inclusion of any such items or matter in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not in the ordinary course of business for purposes of this Agreement.
85.
Severability
. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
86.
Construction
. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, the language shall be construed as mutually chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
87.
Counterparts
. This Agreement may be executed by facsimile and in counterparts, all of which shall be considered an original and one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
11.18
Further Assurances
. Each party will, from time to time after the Closing, upon the reasonable request of another party at the requesting party’s expense, execute, acknowledge, and deliver all such further acts, deeds, assignments, transfers, conveyances, and assurances as may be reasonably required to consummate the transactions contemplated by this Agreement.
11.19
Access to Books and Records
. From and after the Closing, during regular business and with reasonable prior notice, Purchaser agrees to provide Seller with access to the books and records of the Business as Seller shall request in connection with a Seller’s reasonable need for such records in connection with Tax or other financial accounting matters provided such access will not interfere with Purchaser’s Operation of the Business.
11.20
Litigation Assistance
. Purchaser and Seller shall cooperate with and assist each other in the prosecution and defense of any litigation arising out of the operation of the Business and shall agree in good faith on a written procedure relating to such cooperation and assistance. Any party requesting the assistance of any other party hereto shall pay the assisting party its reasonable out of pocket costs and expenses incurred by the assisting party (including, but not limited to, attorney and other professional fees, travel costs and expenses) relating to such cooperation and assistance. In the event that any requested cooperation shall entail any extended travel or absence of any parties;’ employees from their customary duties, the parties shall agree upon the amount of additional compensation to be paid to the assisting party, prior to the rendition of any such assistance.
11.21
Bulk Sales Law Waiver
. Purchaser and Seller agree to waive compliance with the provisions of any “Bulk Sales” Laws of the State of Delaware and all other states where the Facilities are located, if any, which may otherwise be applicable to the transaction contemplated by this Agreement and Seller agrees to indemnify and hold harmless Purchaser as a result of such waiver of any bulk sales laws.
11.22
Accounts Receivable
. Sellers and/or their Affiliates, as applicable, shall deliver and pay to Purchaser, within three (3) Business Days after receipt of any and all cash received by Sellers and/or Affiliates (i) related to the accounts receivable transferred hereunder to Purchaser and (ii) related to any other payment that is properly payable to Purchaser, including, but not limited to, payments from customers of Purchaser that are sent to Sellers’ or an Affiliate’s lockbox or otherwise received by Sellers or an Affiliate. Purchaser shall deliver and pay to Seller, within three (3) Business Days after receipt of any and all cash received by Purchaser related to any payment that is properly payable to Sellers. Purchaser shall apply any payment received from a customer related to the accounts receivable transferred hereunder to Purchaser to accounts receivable for such customer in accordance with the remittance advice received by Purchaser, and if no remittance advice is received, then in reverse chronological order beginning with the oldest account receivable for such customer of all accounts receivable whether created before or after the Closing Date. The above obligations of Sellers and its Affiliates and Purchaser are not subject to any statute of limitations period and shall be absolute obligations hereunder.
11.23
Contech Trademarks and Tradename
. Seller covenants and agrees that Seller will not license, covenant not to sue, assign or otherwise transfer or grant any rights to any third parties to utilize the Contech name and/or any registered and/or common law trademarks and tradenames relation to Contech not transferred hereunder (“Contech Trademarks”) unless Seller first provides Purchaser written notice of any such proposal and Purchaser has a period of thirty (30) days from receipt of notice to accept a full and complete assignment of such Contech Trademark(s) proposing to be assigned and/or licensed or transferred without any further consideration related thereto, the parties hereto acknowledging that the consideration set forth in this Agreement being sufficient consideration for any such future transfer and/or assignment of the Contech Trademark, if any, to Purchaser.
11.24
Dowagiac Tooling
. Sellers covenant and agree that certain customer tooling and dies related to Seller’s operation of the business are located at Sellers Dowagiac, Michigan facility. Sellers agree to release and cooperate with such customers in the return of such customer tooling and dies to such customers.
[
Signature pages follow
]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
SHILOH DIE CAST MIDWEST LLC
|
|
|
|
|
|
By: /s/ Ramzi Hermiz
|
|
|
Name: Ramzi Hermiz
|
|
|
Title: President
|
|
CONTECH CASTINGS, LLC
|
|
|
|
|
|
By: /s/ John C. Donato
|
|
|
Name: John C. Donato
|
|
|
Title: Chief Restructuring Officer of Revstone Transportation LLC, The Sole Member of Contech Casting, LLC
|
|
CONTECH CASTINGS REAL ESTATE HOLDINGS, LLC
|
|
|
|
|
|
By: /s/ John C. Donato
|
|
|
Name: John C. Donato
|
|
|
Title: Chief Restructuring Officer of Revstone Transportation LLC, The Sole Member of Contech Casting, LLC
|
|
List of Schedules
|
|
|
|
1.
|
Section 2.1(a)(i): Purchased Equipment and Leased Equipment
|
|
|
|
|
2.
|
Section 2.1(a)(ii): Tangible Personal Property
|
|
|
|
|
3.
|
Section 2.1(a)(iii): Excluded Equipment
|
|
|
|
|
4.
|
Section 2.1(c): Acquired Contracts
|
|
|
|
|
5.
|
Section 2.1(f): Acquired Real Property Leases
|
|
|
|
|
6.
|
Section 2.1(g): Acquired Personal Property Leases
|
|
|
|
|
7.
|
Section 2.1(h): Permits and Licenses
|
|
|
|
|
8.
|
Section 2.1(j): Open Customer Orders
|
|
|
|
|
9.
|
Section 2.1(k): Open Supplier Orders
|
|
|
|
|
10.
|
Section 2.1(l): Receivables
|
|
|
|
|
11.
|
Section 2.1(m): Acquired Intellectual Property Rights
|
|
|
|
|
12.
|
Section 2.2(j): Additional Excluded Assets
|
|
|
|
|
13.
|
Section 2.3(c): Assumed Open Customer Orders
|
|
|
|
|
14.
|
Section 2.3(d): Assumed Accounts Payable
|
|
|
|
|
15.
|
Section 2.3(g): Other Liabilities Assumed
|
|
|
|
|
16.
|
Section 2.6(b): JTEKT and Chrysler Business Adjustment
|
|
|
|
|
17.
|
Section 2.6(c): Net Working Capital Target
|
|
|
|
|
18.
|
Section 2.6(d): Chrysler Equipment Purchase Adjustment
|
|
|
|
|
19.
|
Section 3.4: Consents
|
|
|
|
|
21.
|
Section 3.8: Permits and Licenses
|
|
|
|
|
22.
|
Section 3.10: Insurance
|
|
|
|
|
23.
|
Section 3.11: Employee Matters
|
|
|
|
|
24.
|
Section 3.12: Non-Governmental Consents
|
|
|
|
|
25.
|
Section 3.13(a): Benefit Plans
|
|
|
|
|
26.
|
Section 3.13(b): Employment Contracts
|
|
|
|
|
27.
|
Section 3.14: Litigation
|
|
|
|
|
28.
|
Section 3.15: Intellectual Property
|
|
|
|
|
29.
|
Section 3.16(a): Employees
|
|
|
|
|
30.
|
Section 3.16(b): Employees on Leave
|
|
|
|
|
31.
|
Section 3.17(a): Owned Real Property
|
|
|
|
|
32.
|
Section 3.17(b): Leased Real Property
|
|
|
|
|
33.
|
Section 3.17(c): Written Notice of Violations
|
|
|
|
|
34.
|
Section 3.18: Environmental Matters
|
|
|
|
|
35.
|
Section 3.18(e): Conditions for Violations
|
|
|
|
|
36.
|
Section 3.18(f): Notice of Violation
|
|
|
|
|
37.
|
Section 3.18(g): Hazardous Substances
|
|
|
|
|
38.
|
Section 3.18(i): Specific Substances
|
|
|
|
|
39.
|
Section 3.19: Brokers and Finders
|
|
|
|
|
40.
|
Section 3.20: Severance
|
|
|
|
|
41.
|
Section 3.24: Customers over $10m
|
|
|
|
|
42.
|
Section 3.25: Suppliers
|
|
|
|
|
43.
|
Section 3.26: Product Warranties
|
|
|
|
|
44.
|
Section 3.28: Operation of the Business
|
|
|
|
|
45.
|
Section 5.5(a): Subject Employees
|
|
|
|
|
46.
|
Section 5.5(c): Severance Schedule
|
|
|
|
|
47.
|
Section 5.5(e): Assumed Benefit Plans
|
48.
Section 5.5(n): Workers Compensation Claims
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT ASSET PURCHASE AGREEMENT (“Amendment”) is made this ___ day of June, 2013, by and among Shiloh Die Cast Midwest LLC, an Ohio limited liability company (“
Purchaser
”), Contech Castings, LLC, a Delaware limited liability company (“
Seller
”) and Contech Castings Real Estate Holdings, LLC, a Delaware limited liability company (“Real Estate Seller”) (the “Seller” and the “Real Estate Seller” are sometimes collectively referred to herein as the “Sellers”). Unless otherwise expressly defined in this Amendment, capitalized terms used herein shall have the meaning ascribed to such terms as in the Asset Purchase Agreement. Purchaser and Sellers are sometimes referred to collectively as the “
Parties
” or individually as a “
Party
”.
RECITALS
A.
The Parties previously entered into that certain Asset Purchase Agreement dated June 11, 2013 (the “APA”);
B.
Sellers have disclosed to Purchaser the loss of certain business of the Seller since the execution of the APA in the amount of approximately Five Million Six Hundred Thousand Dollars ($5,600,000);
C.
Sellers have further disclosed to Purchaser that it has or will be awarded additional business since the execution of the APA in the amount of approximately Six Million Dollars ($6,000,000); and
D.
Based on the foregoing, and other considerations, the Parties mutually desire to amend the APA in accordance with the terms and provisions of this Amendment.
WHEREFORE, based on the foregoing recitals and for good and valuable consideration, the receipt and adequacy of which is acknowledged, the Parties agree as follows:
AMENDMENT
1.
Section 2.6(b) of the APA is amended and restated to read, in its entirety, as follows:
(b)
On the Closing Date, Purchaser shall (A) cause the Escrow Holder to deliver the Deposit (together with all accrued interest thereon) to Seller, and (B) subject to the adjustments hereinafter identified in this
Section 2.6(b)
, pay and deliver, in Good Funds, the balance of the Purchase Price to Seller (and/or directly to Sellers’ secured and/or lien creditors to release the liens against the Purchased Assets), which balance amount together with the Deposit identified in (A) above, shall be Fifty-Four Million Nine Hundred Thousand Dollars ($54,900,000) (“Purchase Price”), less the Deposit and less the sum of the following: accrued interest on the Deposit; the working capital adjustments, as provided in Section 2.6(c); any charges and prorations for which Sellers or the Real Estate Seller are responsible and/or accountable pursuant to
Section 2.7(c),
excluding however accrued real property taxes for the Facilities in the approximate amount of Five Hundred Seventy-Six Thousand Thirteen and 79/100 Dollars ($576,013.79), which shall be paid by the Sellers and Real Estate Sellers at Closing and thereafter upon verification of such payment reimbursed by the Purchaser to the Seller and Real Estate Seller; the Chrysler Equipment Purchase Adjustment identified in
Section 2.6(d
) below; all amounts deposited into the various escrow(s) at Closing as provided herein; all amounts listed on
Section 2.3(g)
of the Disclosure Schedule which are being assumed hereunder by Purchaser; and as applicable, the amounts identified on Section 2.6(b) of the Disclosure Schedule related to the JTEKT and related Chrysler business, and/or other customer/business loss from the execution date of the Agreement through Closing.
2.
Section 2.6(c) of the APA is amended and restated to read, in its entirety, as follows:
(c)
Working Capital Purchase Price Adjustment
. The Purchase Price shall be adjusted as follows:
(i)
The Purchase Price assumes that, based on the Seller’s March 31, 2013 balance sheet, the Seller will convey to Purchaser at Closing targeted net working capital of Eleven Million Six Hundred Ninety-Three Thousand Four Hundred Ninety-Eight Dollars ($11,693,498), as calculated on
Section 2.6(c)
of the Disclosure Schedule (“Net Working Capital Target”). Within seven (7) days of execution of this Amendment, Seller shall calculate, based on the Seller’s May 31, 2013 balance sheet, and in accordance with GAAP consistently applied by Seller in accordance with its historical practices, the estimated Net Working Capital as of May 31, 2013 (the “Estimated Closing Net Working Capital”). To the extent that the Estimated Closing Net Working Capital is
less than
the Net Working Capital Target, the Purchase Price shall be decreased on a dollar-for-dollar basis on account of the deficiency. Thereafter, at Closing, Seller and Purchaser shall calculate and agree upon the Seller’s actual net working capital (“Final Closing Net Working Capital”), in accordance with GAAP consistently applied by Seller and in accordance with its historical practices. To the extent that the Final Closing Net Working Capital is
not greater than
One Million Dollars ($1,000,000)
less than
the Estimated Closing Net Working Capital, there shall be no additional Purchase Price adjustment on account of the deficiency; provided however, to the extent the above referenced decrease in Working Capital is more than One Million Dollars ($1,000,000.00), there shall be a dollar for dollar reduction of the Purchase Price but only for the amount in excess of One Million Dollars ($1,000,000.00). To the extent that the Final Closing Net Working Capital is
greater than
the Estimated Net Working Capital, there shall be no additional Purchase Price adjustment on account of the excess.
(ii)
[this subsection is deleted in its entirety]
(iii)
Both Purchaser and Sellers shall provide to the other access to all materials used in the calculation of the Final Closing Net Working Capital and shall make their financial staff and advisors available to resolve any disputes as to the calculation Final Closing Net Working Capital.
(iv)
[this subsection with respect to the Working Capital Escrow is deleted in its entirety]
(v)
[this subsection is deleted in its entirety]
(vi)
From the date of this Amendment through Closing:
(A)
Seller will continue to operate its Business in ordinary course from the execution of this Agreement to Closing, and specifically as it relates to its Working Capital (i.e. collecting accounts receivable and paying accounts payable in accordance with the terms in place as of March 30, 2013). Seller further will not extend payment terms to suppliers or attempt to accelerate the collection of receivables from customers ahead of current terms;
(B)
Seller will immediately notify Purchaser of any business events or known changes that could significantly impact the Final Closing Net Working Capital or the Estimated Closing Net Working Capital. Seller further will immediately notify Purchaser of any potential or known changes in Seller’s Working Capital that are not in the ordinary course of Seller’s business;
(C)
Seller agrees to allow Purchaser to monitor the status of Seller’s Net Working Capital as of the May 31, 2013 balance sheet through Closing, and to respond immediately to Purchaser inquiries from time-to-time regarding Seller’s Net Working Capital;
(D)
Seller in good faith agrees to manage Seller’s Net Working Capital with the intent of having the Final Closing Net Working Capital be as close to the Estimated Closing Net Working Capital as possible; and
(E)
Seller agrees not to manage Seller’s Net Working Capital to intentionally and/or knowingly cause the Final Closing Net Working Capital to differ negatively from the Estimated Closing Net Working Capital.
3.
The foregoing amendments to the APA set forth in Paragraphs 1 and 2 herein are predicated upon the receipt by Purchaser of the opportunity to accept purchase or work orders for Nexteer Part Nos. 28262919 and 38000591 at the purchase or work order price proffered by Nexteer, and which price permits a reasonable margin to Purchaser.
4.
The amendments contained in this Amendment shall not, by their making, constitute any Material Adverse Effect under the APA or otherwise constitute any breach of the APA, any warranty or representation contained in the APA, or of any the Disclosure Schedules to the APA, and shall not give rise to any termination event under Article IX of the APA.
5.
To the extent this Amendment deletes or alters any defined terms contained in the APA, or conflicts with any definition of any term contained in the APA, this Amendment shall control.
6.
Except as provided in this Amendment, no other term or provision of the APA is amended, modified, altered or waived, and each such provision shall remain in full force and effect.
7.
This Amendment, together with the APA as modified by this Amendment, set forth the entire agreement and understanding of the Parties hereto, and supersedes any and all prior agreements, arrangements, understandings and representations among the Parties.
[signatures on separate page]
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed and delivered as of the date first written above.
SHILOH DIE CAST MIDWEST LLC
|
|
|
|
|
|
By: /s/ Ramzi Hermiz
|
|
|
Name: Ramzi Hermiz
|
|
|
Title: President
|
|
CONTECH CASTINGS, LLC
|
|
|
|
|
|
By: /s/ John C. Donato
|
|
|
Name: John C. Donato
|
|
|
Title: Chief Restructuring Officer of Revstone Transportation LLC, The Sole Member of Contech Casting, LLC
|
|
CONTECH CASTINGS REAL ESTATE HOLDINGS, LLC
|
|
|
|
|
|
By: /s/ John C. Donato
|
|
|
Name: John C. Donato
|
|
|
Title: Chief Restructuring Officer of Revstone Transportation LLC, The Sole Member of Contech Casting, LLC
|
|
SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS SECOND AMENDMENT ASSET PURCHASE AGREEMENT (“Amendment”) is made this ___ day of July, 2013, by and among Shiloh Die Cast Midwest LLC, an Ohio limited liability company (“
Purchaser
”), Contech Castings, LLC, a Delaware limited liability company (“
Seller
”) and Contech Castings Real Estate Holdings, LLC, a Delaware limited liability company (“Real Estate Seller”) (the “Seller” and the “Real Estate Seller” are sometimes collectively referred to herein as the “Sellers”). Unless otherwise expressly defined in this Amendment, capitalized terms used herein shall have the meaning ascribed to such terms as in the Asset Purchase Agreement. Purchaser and Sellers are sometimes referred to collectively as the “
Parties
” or individually as a “
Party
”.
RECITALS
A.
The Parties previously entered into that certain Asset Purchase Agreement dated June 11, 2013, and as thereafter amended by that certain First Amendment to Asset Purchase Agreement dated June 25, 2013 (collectively the “APA”);
B.
At the Bankruptcy Court hearing on June 26, 2013, the Bankruptcy Court did not enter the Bankruptcy Order; and
C.
Based on the foregoing, and other considerations, the Parties mutually desire to amend the APA in accordance with the terms and provisions of this Amendment.
WHEREFORE, based on the foregoing recitals and for good and valuable consideration, the receipt and adequacy of which is acknowledged, the Parties agree as follows:
AMENDMENT
1.
Section 5.12 of the APA is amended and restated to read, in its entirety, as follows:
5.12
Governmental Approvals
. Between the date hereof and the Closing Date, Seller and Purchaser will cooperate to: (a) use commercially reasonable efforts to obtain, as promptly as practicable, all approvals, authorizations and clearances of any Governmental Authority, including the issuance of the Alternative Bankruptcy Order as set forth in
Section 6.4
to consummate the transactions set forth herein; and (b) provide such other information and communications to any Governmental Authority or such authorities that may reasonably request.
2.
Section 7.5 of the APA is amended and restated to read, in its entirety, as follows:
7.5
Customer Agreements
. Sellers shall have obtained agreements with its customers Chrysler, Ford and Nexteer, satisfactory to Sellers, in their sole discretion, with respect to the sales support of the Sellers ("Customer Agreements") on or before the Bankruptcy Court hearing date with respect to the Alternative Bankruptcy Order. If the Sellers fail to obtain the Customer Agreements on or before the Bankruptcy Court hearing date, then Sellers have the option to, in writing, either (a) waive this condition to Closing, or (b) terminate this Agreement, at which time the Deposit shall be fully refunded to Purchaser.
3.
Section 6.4 of the APA is amended and restated to read, in its entirety, as follows:
6.4
Court Approval/Waiver
. On June 26, 2013, the Bankruptcy Court in the Bankruptcy Case did not rule upon or enter an order in substantially the same form and substance as set forth in the motion and related order attached hereto as
Exhibit 6.4
, and as requested by Sellers and Sellers’ parent Revstone (the “Bankruptcy Order”). As a result of the failure to obtain the Bankruptcy Order on June 26,
2013 as provided above, the Sellers and the Purchaser agree as follows. Sellers and Revstone shall use diligent and commercially reasonable efforts on or before July 18, 2013 to obtain either a comparable or a modified and/or reduced Alternative Bankruptcy Order as hereinafter defined, and as mutually agreed to by the Parties as hereinafter provided, and which Alternative Bankruptcy Order shall upon agreement, be attached to this Amendment as
Revised Exhibit 6.4
(the “Alternative Bankruptcy Order”);
provided, however,
that the issuance of a final, non-appealable Alternative Bankruptcy Order shall not be a condition to Closing hereunder. Upon agreement to the Alternative Bankruptcy Order, the Parties shall also agree upon the amount of the increase in the General Escrow as provided in Section 6.14, below, which increase shall be at least Two Hundred Fifty Thousand Dollars ($250,000), for a total of One Million Two Hundred Fifty Thousand Dollars ($1,250,000). If the Bankruptcy Court, whether based on a decision on the merits or otherwise, rules against entry of the Alternative Bankruptcy Order, abstains from entry of the Alternative Bankruptcy Order, or expressly disapproves of the relief requested in the Alternative Bankruptcy Order, then the General Escrow, at Closing, shall be increased to a total of Three Million Dollars ($3,000,000) as provided in Section 6.14 below. If the Bankruptcy Court, on or before July 18, 2013, issues the Alternative Bankruptcy Order, but changes the Alternative Bankruptcy Order from the form and substance of the Alternative Bankruptcy Order attached as
Revised Exhibit 6.4
such that it is materially less protective as to adversely effect or be reasonably likely to adversely effect Purchaser, as reasonably and objectively determined by the Purchaser and Seller, then the General Escrow shall be increased by One Million Dollars ($1,000,000) as provided in Section 6.14 below;
provided, however
, under no circumstances shall such increase cause the General Escrow to exceed Two Million Two Hundred Fifty Thousand Dollars ($2,250,000). If there is a reasonable, good faith disagreement between Purchaser and Seller as to whether the entered Alternative Bankruptcy Order is “materially less protective as to adversely effect or be reasonably likely to adversely effect Purchaser” (the “Materiality Dispute”), then the additional One Million Dollars ($1,000,000) shall be placed into the General Escrow, which sum may not be used or otherwise disbursed pending the resolution of the Materiality Dispute either by order of a court of competent jurisdiction or the mutual written consent of the Parties.
4.
Section 6.14 of the APA is amended and restated to read, in its entirety, as follows:
6.14
General Escrow
. Subject to Section 6.4, above, if applicable, the Sellers and the Purchaser further agree to escrow on the Closing Date from the proceeds, up to an additional Two Million Dollars ($2,000,000)(“Additional Escrow Funds”), for a total General Escrow of Three Million Dollars ($3,000,000), to be utilized by the Purchaser after the Closing for the satisfaction of the obligations and/or liabilities of the Sellers under this Agreement (the “General Escrow”). Except as hereinafter provided, claims against the General Escrow may only be made by Purchaser after which time as there has accrued or been asserted against or by Purchaser or any of its Affiliates, obligations and/or liabilities and/or Losses aggregating an amount exceeding Five Hundred Sixty Thousand Dollars ($560,000) (the “General Escrow Threshold Amount”). Except as hereinafter provided, in calculating the General Escrow Threshold Amount, only individual claims and/or Losses in excess of Ten Thousand Dollars ($10,000) (the “Minimum Escrow Claim Amount”) may be aggregated to meet the General Escrow Threshold Amount; and after meeting the General Escrow Threshold Amount, claims and/or Losses against the General Escrow shall revert back to and start at Dollar One ($1) for all claims and/or Losses and the General Escrow shall be available for such purposes. Other than amounts and time periods as provided in this
Section 6.14
, such General Escrow shall generally be consistent with the terms and conditions of the Deposit escrow as identified in
Section 2.6(a)
. Notwithstanding the above, the parties agree that there shall be no General Escrow Threshold Amount or Minimum Escrow Claim Amount for any claims, including claims for indemnification, or Losses incurred (including defense costs and expenses), by or against or naming the Purchaser or any of its Affiliates attributable to, related to or resulting from any suits or actions taken by the Unsecured Creditors Committee in the Bankruptcy Case (the “UCC”), Boston Finance Group, LLC (“BFG”) or any other third party who files an objection to the Alternative Bankruptcy Order (the “Concerned Creditors Claims”) and Purchaser
shall be reimbursed from the General Escrow for all Concerned Creditors Claims on a Dollar One ($1.00) basis. For purposes of clarity, the Additional Escrow Funds shall be utilized solely to satisfy Concerned Creditor Claims while the remaining General Escrow may be utilized to satisfy any indemnification claims by the Purchaser. The term of the General Escrow shall be twenty-four (24) months subsequent to Closing (the “General Escrow Period”), subject to adjustment as hereinafter provided. If at the end of the first twelve (12) months of the General Escrow Period, no individual claim or Loss against or by the Purchaser has been made equal to or greater than the Minimum Claim Amount and there are no Concerned Creditors Claims, then fifty percent (50%) of the balance remaining in the General Escrow shall be released to Sellers; and if at the end of the General Escrow Period there are any funds remaining in the General Escrow, and no claim or Loss against or by Purchaser has been made equal to or greater than the Minimum Claim Amount and there are no Concerned Creditor Claims, such General Escrow shall be released to Sellers. Pursuant to Section 6.4 of this Agreement, as provided in this Amendment, the Parties agree that if the Bankruptcy Court, based upon a decision on the merits, rules against entry of the Alternative Bankruptcy Order, expressly disapproves of the relief requested in the Alternative Bankruptcy Order, or abstains from ruling on the entry of the Alternative Bankruptcy Order, the Parties shall proceed to Closing subject to the other terms and conditions of this Agreement, and the General Escrow shall be increased to a total of Three Million Dollars ($3,000,000). If, pursuant to Section 6.4, the Bankruptcy Court enters an Alternative Bankruptcy Order, but changes the Alternative Bankruptcy Order from the form and substance agreed to in
Revised Exhibit 6.4
such that it is materially less protective so as to adversely effect or be reasonably likely to adversely effect Purchaser, as reasonably and objectively determined by the Purchaser and Seller, the Parties shall proceed to Closing subject to the other terms and conditions of this Agreement, and this General Escrow shall only be increased to a total of no more than Two Million Two Hundred Fifty Thousand Dollars ($2,250,000).
5.
Section 6.16 of the APA is deleted in its entirety.
6.
Section 9.1(g) of the APA is deleted in its entirety.
7.
The amendments contained in this Amendment shall not, by their making, constitute any Material Adverse Effect under the APA or otherwise constitute any breach of the APA, any warranty or representation contained in the APA, or of any the Disclosure Schedules to the APA, and shall not give rise to any termination event under Article IX of the APA.
8.
To the extent this Amendment deletes or alters any defined terms contained in the APA, or conflicts with any definition of any term contained in the APA, this Amendment shall control.
9.
Except as provided in this Amendment, no other term or provision of the APA is amended, modified, altered or waived, and each such provision shall remain in full force and effect.
10.
This Amendment, together with the APA as modified by this Amendment, set forth the entire agreement and understanding of the Parties hereto, and supersedes any and all prior agreements, arrangements, understandings and representations among the Parties.
[signatures on separate page]
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed and delivered as of the date first written above.
SHILOH DIE CAST MIDWEST LLC
|
|
|
|
|
|
By: /s/ Ramzi Hermiz
|
|
|
Name: Ramzi Hermiz
|
|
|
Title: President
|
|
CONTECH CASTINGS, LLC
|
|
|
|
|
|
By: /s/ John C. Donato
|
|
|
Name: John C. Donato
|
|
|
Title: Chief Restructuring Officer of Revstone Transportation LLC, The Sole Member of Contech Casting, LLC
|
|
CONTECH CASTINGS REAL ESTATE HOLDINGS, LLC
|
|
|
|
|
|
By: /s/ John C. Donato
|
|
|
Name: John C. Donato
|
|
|
Title: Chief Restructuring Officer of Revstone Transportation LLC, The Sole Member of Contech Casting, LLC
|
|
Published CUSIP Number: 82454HAA9
CREDIT AGREEMENT
Dated as of October [25], 2013
among
SHILOH INDUSTRIES, INC.
as the Borrower,
THE DOMESTIC SUBSIDIARIES OF THE BORROWER,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
and
THE OTHER LENDERS PARTY HERETO
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
J.P. MORGAN SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers
THE PRIVATE BANK AND TRUST COMPANY,
COMPASS BANK
and
RBS CITIZENS, N.A.,
as Co-Documentation Agents
TABLE OF CONTENTS
Page
|
|
|
|
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
|
1
|
|
|
|
|
1.02
|
Other Interpretive Provisions.
32
|
|
|
|
|
1.03
|
Accounting Terms.
33
|
|
|
|
|
1.05
|
Times of Day; Rates
34
|
|
|
|
|
1.06
|
Letter of Credit Amounts.
34
|
|
|
|
|
1.07
|
Exchange Rates; Currency Equivalents.
35
|
|
|
|
|
1.08
|
Additional Alternative Currencies.
35
|
|
|
|
|
1.09
|
Change of Currency.
36
|
|
|
|
|
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
|
37
|
|
|
|
|
2.02
|
Borrowings, Conversions and Continuations of Loans.
37
|
|
|
|
|
2.03
|
Letters of Credit.
40
|
|
|
|
|
2.04
|
Swing Line Loans.
49
|
|
|
|
|
2.06
|
Termination or Reduction of Aggregate Revolving Commitments.
53
|
|
|
|
|
2.07
|
Repayment of Loans.
54
|
|
|
|
|
2.10
|
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
55
|
|
|
|
|
2.11
|
Evidence of Debt.
56
|
|
|
|
|
2.12
|
Payments Generally; Administrative Agent’s Clawback.
56
|
|
|
|
|
2.13
|
Sharing of Payments by Lenders.
58
|
|
|
|
|
2.15
|
Defaulting Lenders.
60
|
|
|
|
|
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
|
62
|
|
|
|
|
3.03
|
Inability to Determine Rates.
67
|
|
|
|
|
3.05
|
Compensation for Losses.
70
|
|
|
|
|
3.06
|
Mitigation Obligations; Replacement of Lenders.
70
|
|
|
|
|
4.02
|
Obligations Unconditional.
71
|
|
|
|
|
4.04
|
Certain Additional Waivers.
73
|
|
|
|
|
4.06
|
Rights of Contribution.
73
|
|
|
|
|
4.07
|
Guarantee of Payment; Continuing Guarantee.
73
|
|
|
|
|
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
|
74
|
|
|
|
|
5.01
|
Conditions of Initial Credit Extension.
74
|
|
|
|
|
5.02
|
Conditions to all Credit Extensions.
77
|
|
|
|
|
ARTICLE VI REPRESENTATIONS AND WARRANTIES
|
77
|
|
|
|
|
6.01
|
Existence, Qualification and Power.
77
|
|
|
|
|
6.02
|
Authorization; No Contravention.
78
|
|
|
|
|
6.03
|
Governmental Authorization; Other Consents.
78
|
|
|
|
|
6.05
|
Financial Statements; No Material Adverse Effect.
78
|
|
|
|
|
6.08
|
Ownership of Property; Liens.
79
|
|
|
|
|
6.09
|
Environmental Compliance.
79
|
|
|
|
|
6.12
|
ERISA Compliance.
81
|
|
|
|
|
6.14
|
Margin Regulations; Investment Company Act.
81
|
|
|
|
|
6.16
|
Compliance with Laws.
82
|
|
|
|
|
6.17
|
Intellectual Property; Licenses, Etc.
82
|
|
|
|
|
6.19
|
Perfection of Security Interests in the Collateral.
83
|
|
|
|
|
6.20
|
Business Locations.
83
|
|
|
|
|
ARTICLE VII AFFIRMATIVE COVENANTS
|
83
|
|
|
|
|
7.01
|
Financial Statements.
84
|
|
|
|
|
7.02
|
Certificates; Other Information.
84
|
|
|
|
|
7.04
|
Payment of Obligations.
87
|
|
|
|
|
7.05
|
Preservation of Existence, Etc.
87
|
|
|
|
|
7.06
|
Maintenance of Properties.
88
|
|
|
|
|
7.07
|
Maintenance of Insurance.
88
|
|
|
|
|
7.08
|
Compliance with Laws.
88
|
|
|
|
|
7.09
|
Books and Records.
88
|
|
|
|
|
7.10
|
Inspection Rights.
89
|
|
|
|
|
7.12
|
Additional Subsidiaries.
89
|
|
|
|
|
7.13
|
ERISA Compliance.
89
|
|
|
|
|
7.15
|
Post-Closing Obligations.
90
|
|
|
|
|
ARTICLE VIII NEGATIVE COVENANTS
|
90
|
|
|
|
|
8.04
|
Fundamental Changes.
94
|
|
|
|
|
8.06
|
Restricted Payments.
95
|
|
|
|
|
8.07
|
Change in Nature of Business.
95
|
|
|
|
|
8.08
|
Transactions with Affiliates and Insiders.
95
|
|
|
|
|
8.09
|
Burdensome Agreements.
95
|
|
|
|
|
8.11
|
Financial Covenants.
96
|
|
|
|
|
8.12
|
Prepayment of Other Indebtedness, Etc.
96
|
|
|
|
|
8.13
|
Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.
96
|
|
|
|
|
8.14
|
Ownership of Subsidiaries.
97
|
|
|
|
|
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
|
97
|
|
|
|
|
9.01
|
Events of Default.
97
|
|
|
|
|
9.02
|
Remedies Upon Event of Default.
99
|
|
|
|
|
9.03
|
Application of Funds.
100
|
|
|
|
|
ARTICLE X ADMINISTRATIVE AGENT
|
101
|
|
|
|
|
10.01
|
Appointment and Authority.
101
|
|
|
|
|
10.02
|
Rights as a Lender.
101
|
|
|
|
|
10.03
|
Exculpatory Provisions.
102
|
|
|
|
|
10.04
|
Reliance by Administrative Agent.
102
|
|
|
|
|
10.05
|
Delegation of Duties.
103
|
|
|
|
|
10.06
|
Resignation of Administrative Agent.
103
|
|
|
|
|
10.07
|
Non-Reliance on Administrative Agent and Other Lenders.
104
|
|
|
|
|
10.08
|
No Other Duties; Etc.
105
|
|
|
|
|
10.09
|
Administrative Agent May File Proofs of Claim.
105
|
|
|
|
|
10.10
|
Collateral and Guaranty Matters.
106
|
|
|
|
|
10.11
|
Treasury Management Banks and Swap Banks.
106
|
|
|
|
|
ARTICLE XI MISCELLANEOUS
|
107
|
|
|
|
|
11.01
|
Amendments, Etc.
107
|
|
|
|
|
11.02
|
Notices and Other Communications; Facsimile Copies.
109
|
|
|
|
|
11.03
|
No Waiver; Cumulative Remedies; Enforcement.
111
|
|
|
|
|
11.04
|
Expenses; Indemnity; and Damage Waiver.
111
|
|
|
|
|
11.05
|
Payments Set Aside.
113
|
|
|
|
|
11.06
|
Successors and Assigns.
114
|
|
|
|
|
11.07
|
Treatment of Certain Information; Confidentiality.
118
|
|
|
|
|
11.09
|
Interest Rate Limitation.
119
|
|
|
|
|
11.10
|
Counterparts; Integration; Effectiveness.
120
|
|
|
|
|
11.11
|
Survival of Representations and Warranties.
120
|
|
|
|
|
11.13
|
Replacement of Lenders.
120
|
|
|
|
|
11.14
|
Governing Law; Jurisdiction; Etc.
121
|
|
|
|
|
11.15
|
Waiver of Right to Trial by Jury.
122
|
|
|
|
|
11.16
|
Electronic Execution of Assignments and Certain Other Documents.
123
|
|
|
|
|
11.17
|
USA PATRIOT Act.
123
|
|
|
|
|
11.18
|
No Advisory or Fiduciary Relationship.
123
|
|
|
|
|
11.19
|
Judgment Currency.
124
|
SCHEDULES
|
|
|
|
1.01
|
Pro Forma Consolidated Financial Statements
|
|
|
|
|
2.01
|
Commitments and Applicable Percentages
|
|
|
|
|
6.20(a)
|
Locations of Real Property
|
|
|
|
|
6.20(b)
|
Taxpayer and Organizational Identification Numbers
|
|
|
|
|
6.20(c)
|
Changes in Legal Name, State of Formation and Structure
|
|
|
|
|
6.21
|
Collective Bargaining Agreements
|
|
|
|
|
7.15
|
Post-Closing Obligations
|
|
|
|
|
8.01
|
Liens Existing on the Closing Date
|
|
|
|
|
8.02
|
Investments Existing on the Closing Date
|
|
|
|
|
8.03
|
Indebtedness Existing on the Closing Date
|
|
|
|
|
11.02
|
Certain Addresses for Notices
|
EXHIBITS
|
|
|
|
B
|
Form of Swing Line Loan Notice
|
|
|
|
|
D
|
Form of Swing Line Note
|
|
|
|
|
E
|
Form of Compliance Certificate
|
|
|
|
|
F
|
Form of Joinder Agreement
|
|
|
|
|
G
|
Form of Assignment and Assumption
|
|
|
|
|
H
|
Forms of U.S. Tax Compliance Certificates
|
|
|
|
|
I
|
Form of Secured Party Designation Notice
|
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of October [25], 2013 among Shiloh Industries, Inc., a Delaware corporation (the “
Borrower
”), the Guarantors (defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide credit facilities for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
DEFINITIONS AND ACCOUNTING TERMS
.
Defined Terms.1.01
Defined Terms..
.
As used in this Agreement, the following terms shall have the meanings set forth below:
“
Acquisition
” means, with respect to any Person, the acquisition by such Person, in a single transaction or in a series of related transactions, of (a) all or any substantial portion of the property of another Person, or any division, line of business or other business unit of another Person or (b) at least a majority of the Voting Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.
“
Administrative Agent
” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“
Administrative Agent’s Office
” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on
Schedule 11.02
with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“
Administrative Questionnaire
” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“
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.
“
Aggregate Revolving Commitments
” means the Revolving Commitments of all the Lenders. The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Closing Date is THREE HUNDRED MILLION DOLLARS ($300,000,000).
“
Agreement
” means this Credit Agreement.
“
Alternative Currency
” means Euro and each other currency (other than Dollars) that is approved in accordance with
Section 1.08
.
“
Alternative Currency Equivalent
” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
“
Alternative Currency Sublimit
” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $10,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“
Applicable Percentage
” means with respect to any Lender at any time, with respect to such Lender’s Revolving Commitment at any time, the percentage of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time, subject to adjustment as provided in
Section 2.15
; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 9.02
or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01
or in the Assignment and Assumption or other agreement pursuant to which such Lender becomes a party hereto, as applicable.
“
Applicable Rate
” means with respect to Revolving Loans, Swing Line Loans, Letters of Credit and the Commitment Fee, the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 7.02(b)
:
|
|
|
|
|
|
|
|
|
|
|
|
Pricing Tier
|
Consolidated Leverage Ratio
|
Commitment Fee
|
Letter of Credit Fee
|
Eurocurrency Rate Loans
|
Base Rate Loans
|
|
|
|
|
1
|
>
2.50 to 1.00
|
0.35%
|
2.25%
|
2.25%
|
1.25%
|
|
|
2
|
< 2.50 to 1.00
but
>
2.00 to 1.00
|
0.35%
|
2.00%
|
2.00%
|
1.00%
|
|
|
3
|
< 2.00 to 1.00
but
>
1.25 to 1.00
|
0.30%
|
1.75%
|
1.75%
|
0.75%
|
|
|
4
|
< 1.25 to 1.00
but
>
0.75 to 1.00
|
0.25%
|
1.50%
|
1.50%
|
0.50%
|
|
|
5
|
< 0.75 to 1.00
|
0.20%
|
1.25%
|
1.25%
|
0.25%
|
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to
Section 7.02(b)
;
provided
,
however
, that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with
Section 7.02(b)
, whereupon the Applicable Rate
shall be adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such Compliance Certificate. The Applicable Rate in effect from the Closing Date to the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to
Section 7.02(b)
for the fiscal quarter ending January 31, 2014 shall be determined based upon Pricing Tier 3. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of
Section 2.10(b)
.
“
Applicable Time
” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“
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.
“
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 G
or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.
“
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 of any Person, 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 Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.
“
Audited Financial Statements
” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended October 31, 2012, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.
“
Auto Borrow Agreement
” has the meaning specified in
Section 2.04(g)
.
“
Availability Period
” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to
Section 2.06
, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 9.02
.
“
Bank of America
” means Bank of America, N.A. and its successors.
“
Base Rate
” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurocurrency Rate
plus
1.00%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in the “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“
Base Rate Loan
” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
“
Borrower
” has the meaning specified in the introductory paragraph hereto.
“
Borrower Materials
” has the meaning specified in
Section 7.02
.
“
Borrowing
” means each of the following: (a) a borrowing of Swing Line Loans pursuant to
Section 2.04
and (b) a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to
Section 2.01
.
“
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 where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day;
(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
“
Businesses
” means, at any time, a collective reference to the businesses operated by the Borrower and its Subsidiaries at such time.
“
C&H Design
” means C&H Design Company, a Michigan corporation.
“
C&H Design Assets
” means (a) all of the assets of C&H Design and (b) the Equity Interests of the Borrower in C&H Design.
“
Capital Lease
” means, as applied to any Person, any lease of any property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.
“
Cash Collateralize
” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer. “
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, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve (12) months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “
Approved Bank
”), in each case with maturities of not more than two hundred seventy (270) days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six (6) months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations and (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940 which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d).
“
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 Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the 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 the occurrence of any of the following events:
(a)
any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, 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 30% or more of the Equity Interests of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
provided
,
that
, the acquisition after the Closing Date by MTD Pension Master Trust and MTD Holdings Inc. of not more than 20% of such Equity Interests of the Borrower in the aggregate shall not result in a “Change of Control” under this clause (a); or
(b)
during any period of twenty-four (24) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower 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 (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or
(c)
the occurrence of a change of control, or other term of similar import used therein, in any agreement evidencing Indebtedness in excess of the Threshold Amount.
“
Closing Date
” means the date hereof.
“
Collateral
” means a collective reference to all real and personal property with respect to which Liens in favor of the Administrative Agent, for the benefit of the holders of the Obligations, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.
“
Collateral Documents
” means a collective reference to the Security Agreement, the Pledge Agreement, the Mortgages and other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of
Section 7.14
.
“
Commitment
” means, as to each Lender, the Revolving Commitment of such Lender.
“
Commitment Fee
” has the meaning specified in
Section 2.09(a)
.
“
Commodity Exchange Act
” means the Commodity Exchange Act (7 U.S.C. § 1
et seq
.) as amended or otherwise modified, and any successor statute.
“
Compliance Certificate
” means a certificate substantially in the form of
Exhibit E
.
“
Connection Income Taxes
” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“
Consolidated EBITDA
” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated Net Income for such period
plus
(b) the following (without duplication) to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period, (iii) consolidated depreciation and amortization expense for such period, (iv) all non-cash charges or expenses for such period (excluding any non-cash charges or expenses related to accounts receivable) that do not represent a cash item in such period or any future period, (v) non-cash stock based employee compensation expenses for such period and (v) to the extent not capitalized, fees, costs and expenses (including appraisal costs and fees) for such period related to the closing of this Agreement and any amendment, consent or waiver related thereto, all as determined in accordance with GAAP,
minus
(c) the following (without duplication) to the extent included in calculating such Consolidated Net Income, (i) all non-cash income or gains for such period and (ii) all federal, state, local and foreign income tax credits of the Borrower and its Subsidiaries during such period, all as determined in accordance with GAAP,
plus
(d) cost savings (net of realized benefits) projected by the Borrower in good faith to be realized as a result of any Permitted Acquisition and incurred within twelve (12) months after consummation of such Permitted Acquisition, to the extent approved by the Administrative Agent in its reasonable discretion.
“
Consolidated Funded Indebtedness
” means Funded Indebtedness of the Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP.
“
Consolidated Interest Charges
” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets (but excluding (i) fees and expenses paid to the Administrative Agent, the Joint Lead Arrangers and the Lenders in connection with the consummation of the Transactions and (ii) annual agency fees paid to the Administrative Agent), in each case to the extent treated as interest expense in accordance with GAAP
plus
(b) the portion of rent expense with respect to such period under Capital Leases that is treated as interest in accordance with GAAP
plus
(c) the implied interest component of Synthetic Leases with respect to such period.
“
Consolidated Interest Coverage Ratio
” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ended to (b) the cash portion of Consolidated Interest Charges for the period of the four fiscal quarters most recently ended.
“
Consolidated Leverage Ratio
” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.
“
Consolidated Net Income
” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the net income of the Borrower and its Subsidiaries for that period (excluding (a) extraordinary items for such period, (b) the net income of any Subsidiary during such period (or, for purposes of calculating Cumulative Credit, either during such period or in respect of any future period) to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Subsidiary during such period, except that the Borrower’s equity in any net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income and (c) any income (or loss) for such period of any Person if such Person is not a Subsidiary, except that the Borrower’s equity in the net income of any such Person for such period shall be included in Consolidated Net Income
up to the amount of cash actually distributed by such Person during such period to the Borrower or a Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Borrower as described in clause (b) hereof), as determined in accordance with GAAP.
“
Consolidated Total Assets
” means the net book value of all assets of the Borrower and its Subsidiaries reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, as determined on a consolidated basis in accordance with GAAP.
“
Contemplated Disposition Assets
” means (a) the real property and facility owned by Shiloh Automotive, Inc. located at 700 Liverpool Drive, Valley City, Ohio and (b) the real property and facility owned by Jefferson Blanking Inc. and located in Anniston, Alabama.
“
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.
“
Credit Extension
” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“
Cumulative Credit
” means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to the sum of (without duplication):
(a)
$15,000,000,
plus
(b)
an amount, not less than zero in the aggregate, equal to 50% of cumulative Consolidated Net Income for the period (taken as one accounting period) commencing from the first day of the first full fiscal quarter following the Closing Date to the end of the fiscal quarter most recently ended in respect of which a Compliance Certificate has been delivered as required hereunder;
as such amount shall be reduced dollar for dollar from time to time prior to such date by the amount of the Cumulative Credit applied to make Investments or Restricted Payments as permitted hereunder.
“
Debt Issuance
” means the issuance by any Loan Party or any Subsidiary of any Indebtedness other than Indebtedness permitted under
Section 8.03
.
“
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.
“
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 be an Event of Default.
“
Default Rate
” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate
plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans
plus
(iii) 2% per annum;
provided
,
however
, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus
2% per annum, in each case to the fullest extent permitted by applicable Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus
2% per annum.
“
Defaulting Lender
” means, subject to
Section 2.15(b)
, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C 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 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 (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower 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), 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, or (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;
provided
, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interests in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 2.15(b)
) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
“
Designated Jurisdiction
” means any country or territory to the extent that such country or territory is the subject of any Sanction.
“
Disposition
” or “
Dispose
” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or any Subsidiary (including the Equity Interests of any Subsidiary), 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, but excluding (a) the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business; (b) the sale, lease, license, transfer or other disposition in the ordinary course of business of surplus, obsolete
or worn out property no longer used or useful in the conduct of business of any Loan Party and its Subsidiaries; (c) any sale, lease, license, transfer or other disposition of property to any Loan Party or any Subsidiary;
provided
, that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under
Section 8.02
, (d) any Involuntary Disposition, (e) any sale, transfer or other disposition of accounts receivable of Foreign Subsidiaries pursuant to any Securitization Transaction permitted by
Section 8.03(f)
, (f) any sale of accounts receivable (i) owed by JCI (or any Subsidiary or Affiliate of JCI) pursuant to the JCI Supplier Financing Program, (ii) owed by Nissan (or any Subsidiary or Affiliate of Nissan) pursuant to the Nissan Supplier Financing Program, so long as in the case of both (i) and (ii), there is no credit recourse to the Borrower or any Subsidiary with respect to such accounts receivable after such sale, (g) any other sale of accounts receivable from a customer pursuant to such customer’s supplier financing program to a third party financial institution, so long as (x) there shall be no credit recourse to the Borrower or any Subsidiary with respect to such accounts receivable and (y) the aggregate amount of all such sales of accounts receivable pursuant to this clause (g) shall not exceed $25,000,000 in any fiscal year of the Borrower, (h) dispositions of older non-efficient assets to the extent that the proceeds of such disposition are promptly applied to the purchase price of replacement Eligible Assets that are newer and/or more efficient, (i) any sale or other disposition of the Contemplated Disposition Assets so long as the fair market value (as reasonably determined by the Borrower in good faith) of the real property and facility being sold or otherwise disposed of does not exceed $2,500,000 in the aggregate for any one location, (k) so long as C&H Design is an Immaterial Subsidiary, any C&H Design Assets and (k) so long as VCS Properties is an Immaterial Subsidiary, any VCS Properties Assets.
“
Dollar
” and “
$
” mean lawful money of the United States.
“
Dollar Equivalent
” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.
“
Domestic Subsidiary
” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia.
“
Earn Out Obligations
” means, with respect to an Acquisition, all obligations of the Borrower or any Subsidiary to make earn out or other contingency payments (excluding working capital adjustments but including purchase price adjustments, non-competition and consulting agreements, or other indemnity obligations) pursuant to the documentation relating to such Acquisition. For purposes of determining the aggregate consideration paid for an Acquisition at the time of such Acquisition, the amount of any Earn Out Obligations shall be deemed to be the maximum amount of the earn-out payments in respect thereof as specified in the documents relating to such Acquisition. For purposes of determining the amount of any Earn Out Obligations to be included in the definition of Funded Indebtedness, the amount of Earn Out Obligations shall be deemed to be the aggregate liability in respect thereof, as determined in accordance with GAAP.
“
Eligible Assets
” means property that is used or useful in the same or a similar line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extension or expansions thereof).
“
Eligible Assignee
” means any Person that meets the requirements to be an assignee under
Section 11.06(b)(iii)
and
(v)
(subject to such consents, if any, as may be required under
Section 11.06(b)(iii)
).
“
Environmental Laws
” means any and all federal, state, local, foreign and other applicable 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 the Borrower, any other Loan Party or any of their respective 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 the Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“
ERISA Event
” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower 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)(2) 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 the Borrower 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 Sections 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 Internal Revenue 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 the Borrower or any ERISA Affiliate.
“
Euro
” and “
€
” mean the single currency of the Participating Member States.
“
Eurocurrency Base Rate
” means:
(a)
for any Interest Period with respect to a Eurocurrency Rate Loan (i) denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate (“
LIBOR
”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, on the Rate Determination Date, for deposits in the relevant LIBOR Quoted Currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period and (ii) denominated in any Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the Lenders pursuant to
Section 1.07
; and
(b)
for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at approximately 11:00 a.m., London time, determined two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that date;
provided
,
that
, to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied to the applicable Interest Period in a manner consistent with market practice;
provided
,
further
, that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied to the applicable Interest Period as otherwise reasonably determined by the Administrative Agent.
“
Eurocurrency Rate
” means (a) for any Interest Period with respect to any Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurocurrency Base Rate for such Eurocurrency Rate Loan for such Interest Period by (ii) one
minus
the Eurocurrency Reserve Percentage for such Eurocurrency Rate Loan for such Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate based on the Eurocurrency Rate, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurocurrency Base Rate for such Base Rate Loan for such day by (ii) one
minus
the Eurocurrency Reserve Percentage for such Base Rate Loan for such day.
“
Eurocurrency Rate Loan
” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate”. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency. All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.
“
Eurocurrency Reserve Percentage
” means, for any day, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan and for each outstanding Base Rate Loan the interest on which is determined by reference to the Eurocurrency Rate, in each case, shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.
“
Event of Default
” has the meaning specified in
Section 9.01
.
“
Excluded Property
” means, with respect to any Loan Party, including any Person that becomes a Loan Party after the Closing Date as contemplated by
Section 7.12
, (a) any owned or leased real or personal
property which is located outside of the United States unless requested by the Administrative Agent or the Required Lenders, (b) any personal property (including, without limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, unless requested by the Administrative Agent or the Required Lenders, (c) the Equity Interests of any direct Foreign Subsidiary of a Loan Party to the extent not required to be pledged to secure the Obligations pursuant to
Section 7.14(a)
, (d) any property which, subject to the terms of
Section 8.09
, is subject to a Lien of the type described in
Section 8.01(i)
pursuant to documents which prohibit such Loan Party from granting any other Liens in such property, (e) the Contemplated Disposition Assets so long as the fair market value (as reasonably determined by the board of directors of the Borrower) of such assets does not exceed $2,500,000 in the aggregate for any one location, (f) so long as C&H Design is an Immaterial Subsidiary, the C&H Design Assets and (g) so long as VCS Properties is an Immaterial Subsidiary, the VCS Properties Assets.
“
Excluded Swap Obligation
” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor
of, or the grant under a Loan Document by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to
Section 4.08
hereof and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or security interest becomes illegal.
“
Excluded Taxes
” means any of the following Taxes imposed on or with respect to any 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 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)
,
(a)(iii)
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 under FATCA.
“
Existing Credit Agreement
” means that certain Credit and Security Agreement dated as of April 19, 2011 among the Borrower, the lenders party thereto and The PrivateBank and Trust Company, as agent, as amended or modified from time to time.
“
Facilities
” means, at any time, a collective reference to the facilities and real properties owned, leased or operated by any Loan Party or any Subsidiary.
“
FASB ASC
” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“
FATCA
” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof 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 Bank of America on such day on such transactions as determined by the Administrative Agent.
“
Fee Letter
” means the letter agreement, dated as of September 5, 2013
among the Borrower, Bank of America and MLPFS, as amended or otherwise modified.
“
Foreign Lender
” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the 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 the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“
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.
“
Fronting Exposure
” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (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 Lenders in accordance with the terms hereof.
“
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.
“
Funded 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:
(c)
all obligations, whether current or long-term, for borrowed money (including the Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(d)
all purchase money Indebtedness;
(e)
the principal portion of all obligations under conditional sale or other title retention agreements relating to property purchased by such Person or any Subsidiary thereof (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);
(f)
all obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(g)
all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than sixty (60) days after the date on which such trade account payable was created), including, without limitation, any Earn Out Obligations;
(h)
the Attributable Indebtedness of Capital Leases, Securitization Transactions and Synthetic Leases;
(i)
all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference
plus
accrued and unpaid dividends;
(j)
all Funded Indebtedness of others secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed;
(k)
all Guarantees with respect to Funded Indebtedness of the types specified in clauses (a) through (h) above of another Person; and
(l)
all Funded Indebtedness of the types referred to in clauses (a) through (i) above 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 joint venturer, except to the extent that Funded Indebtedness is expressly made non-recourse to such Person.
For purposes hereof, the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments shall be the maximum amount available to be drawn thereunder.
“
GAAP
” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.
“
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).
“
Guarantee
” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (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.
“
Guarantors
” means (a) each Domestic Subsidiary identified as a “Guarantor” on the signature pages hereto, (b) each other Person that joins as a Guarantor pursuant to
Section 7.12
, (c) with respect to (i) Obligations under any Secured Swap Agreement, (ii) Obligations under any Secured Treasury Management Agreement, (iii) Mexican Pesos Obligations and (iv) any Swap Obligation of a Specified Loan Party (determined before giving effect to
Sections 4.01
and
4.08
) under the Guaranty, the Borrower and (d) the successors and permitted assigns of the foregoing.
“
Guaranty
” means the Guaranty made by the Guarantors in favor of the Administrative Agent, the Lenders and the other holders of the Obligations pursuant to
Article IV
.
“
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 set forth in
Section 2.03(c)
.
“
IFRS
” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.
“
Immaterial Subsidiary
” means, at any time, a Subsidiary of any Loan Party that (a) as of the last day of the fiscal quarter of the Borrower most recently ended for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a)
or
(b)
, did not have Consolidated Total Assets in excess of five percent (5%) of the aggregate Consolidated Total Assets of the Borrower and its Subsidiaries at the end of such fiscal quarter and (b) for the period of four consecutive fiscal quarters of the Borrower most recently ended for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a)
or
(b)
, did not have consolidated revenues attributable to such Subsidiary in excess of five percent (5%) of the consolidated revenues of the Borrower and its Subsidiaries for such period.
“
Impacted Loans
” has the meaning specified in
Section 3.03
.
“
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:
(m)
all Funded Indebtedness;
(n)
the Swap Termination Value of any Swap Contract;
(o)
all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) and (b) above of any other Person; and
(p)
all Indebtedness of the types referred to in clauses (a) through (c) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person or a Subsidiary thereof is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Person or such Subsidiary.
“
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 (a), Other Taxes.
“
Indemnitees
” has the meaning specified in
Section 11.04(b)
.
“
Information
” has the meaning specified in
Section 11.07
.
“
Interest Payment Date
” means (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date;
provided
,
however
, that if any Interest Period for a Eurocurrency Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date.
“
Interest Period
” means as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one (1), two (2), three (3) or six (6) months thereafter, in each case, subject to availability, as selected by the Borrower in its Loan Notice;
provided
that:
(q)
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, in the case of a Eurocurrency Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(r)
any Interest Period pertaining to a Eurocurrency Rate Loan 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
(s)
no Interest Period with respect to any Loan shall extend beyond the Maturity Date.
“
Interim Financial Statements
” means the unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended July 31, 2013, including balance sheets and statements of income or operations, shareholders’ equity and cash flows.
“
Internal Revenue Code
” means the Internal Revenue Code of 1986, as amended.
“
Internal Revenue Service
” means the United States Internal Revenue Service.
“
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, (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) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment.
“
Involuntary Disposition
” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party or any of its Subsidiaries.
“
IP Rights
” has the meaning specified in
Section 6.17
.
“
ISP
” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (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 L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.
“
JCI
” means Johnson Controls, Inc., a Wisconsin corporation.
“
JCI Supplier Financing Program
” means the JCI supplier financing program, whereby the Borrower or a Subsidiary may sell all or a portion of its accounts receivable owing from JCI (or a Subsidiary or Affiliate of JCI) to a third party financial institution on terms comparable to other vendors of JCI participating in such supplier financing program.
“
Joinder Agreement
” means a joinder agreement substantially in the form of
Exhibit F
executed and delivered by a Domestic Subsidiary in accordance with the provisions of
Section 7.12
.
“
Joint Lead Arrangers
” means MLPFS and J.P. Morgan Securities LLC, in their respective capacities as joint lead arrangers and joint book managers.
“
Judgment Currency
” has the meaning set forth in
Section 11.19
.
“
Laws
” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, 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.
“
L/C Advance
” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
“
L/C 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 Borrowing of Revolving Loans. All L/C Borrowings shall be denominated in Dollars.
“
L/C Credit Extension
” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“
L/C Issuer
” means (a) Bank of America in its capacity as issuer of Letters of Credit hereunder, (b) any other Lender designated by the Borrower and approved by the Administrative Agent that agrees in writing to become a L/C Issuer after the date of this Agreement, in its capacity as an issuer of Letters of Credit hereunder and (c) any successor issuer of Letters of Credit hereunder. All singular references to the L/C
Issuer shall mean any L/C Issuer, either L/C Issuer, the L/C Issuer that has issued the applicable Letter of Credit or all L/C Issuers, as the context may require.
“
L/C Obligations
” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit
plus
the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. 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 1.06
. 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.
“
Lenders
” means each of the Persons identified as a “Lender” on the signature pages hereto and their successors and assigns, each Person that executes a lender joinder agreement or commitment agreement in accordance with
Section 2.02(f)
and, as the context requires, includes 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 and the Administrative Agent.
“
Letter of Credit
” means any standby
letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder. Letters of Credit may be issued in Dollars or an Alternative Currency.
“
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 L/C Issuer.
“
Letter of Credit Expiration Date
” means the day that is thirty (30) days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“
Letter of Credit Fee
” has the meaning specified in
Section 2.03(h)
.
“
Letter of Credit Sublimit
” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $25,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“
LIBOR
” has the meaning specified in the definition of “Eurocurrency Base Rate”.
“
LIBOR Quoted Currency
” means Dollars and Euro, in each case, as long as there is a published LIBOR with respect thereto.
“
Lien
” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest 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).
“
Loan
” means an extension of credit by a Lender to the Borrower under
Article II
in the form of a Revolving Loan or Swing Line Loan.
“
Loan Documents
” means this Agreement, each Note, each Issuer Document, each Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of
Section 2.14
of this Agreement, each Auto Borrow Agreement, each Collateral Document and the Fee Letter (but specifically excluding Secured Swap Agreements, Secured Treasury Management Agreements and Mexican Pesos Obligations Agreements).
“
Loan Notice
” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, in each case pursuant to
Section 2.02(a)
, which, if in writing, shall be substantially in the form of
Exhibit A
.
“
Loan Parties
” means, collectively, the Borrower 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.
“
Mandatory Cost
” means any amount incurred periodically by any Lender or the L/C Issuer during the term of this Agreement which constitutes fees, costs or charges imposed on lenders generally in the jurisdiction in which such Lender is domiciled, subject to regulation, or has its Lending Office by any Governmental Authority.
“
Master Agreement
” has the meaning specified in the definition of “Swap Contract”.
“
Material Acquisition
” means any Permitted Acquisition for which the aggregate consideration (including cash and non-cash consideration, any assumption of Indebtedness, deferred purchase price and any Earn Out Obligations) exceeds $25,000,000.
“
Material Adverse Effect
” means (a) a material adverse change in, or a material adverse effect upon, the business, assets, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document to which it is a party; (c) a material impairment of the ability of any Loan Party to perform its material obligations under any Loan Document to which it is a party; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
“
Material Subsidiary
” means, at any time, any Subsidiary that is not an Immaterial Subsidiary.
“
Maturity Date
” means October [25], 2018.
“
Mexican Pesos
” means the lawful currency of Mexico.
“
Mexican Pesos Obligations
” means indebtedness and other obligations of any Loan Party denominated in Mexican Pesos and owing to a Lender, in an aggregate amount not to exceed $5,000,000 at any one time outstanding;
provided
,
that
, such Loan Party shall have provided copies of all documentation entered into in connection therewith to the Administrative Agent.
“
Mexican Pesos Obligations Agreement
” means any agreement governing any Mexican Pesos Obligations.
“
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 102% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and 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 2.14(a)(i)
,
(a)(ii)
or
(a)(iii)
, an amount equal to 102% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“
MLPFS
” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity as a joint lead arranger and joint book manager.
“
Moody’s
” means Moody’s Investors Service, Inc. and any successor thereto.
“
Mortgages
” means the mortgages, deeds of trust or deeds to secure debt that purport to grant to the Administrative Agent, for the benefit of the holders of the Obligations, a security interest in the fee interest and/or leasehold interests of any Loan Party in real property (other than Excluded Property).
“
MTD Pension Master Trust
” means the MTD Products Inc. Master Retirement Trust which is a qualified benefit plan sponsored by MTD Products Inc., for the benefit of certain of its employees and/or retirees.
“
Multiemployer Plan
” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower 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 the Borrower 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.
“
Nissan
” means Nissan North America, Inc., a California corporation.
“
Nissan Supplier Financing Program
” means the Nissan supplier financing program, whereby the Borrower or a Subsidiary may sell all or a portion of its accounts receivable owing from Nissan (or a Subsidiary or Affiliate of Nissan) to a third party financial institution on terms comparable to other vendors of Nissan participating in such supplier financing program.
“
Non-Consenting Lender
” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of (i) all Lenders or (ii) all affected Lenders (and in the case of this clause (a)(ii), such Lender is an affected Lender) in accordance with the terms of
Section 11.01
and (b) has been approved by the Required Lenders.
“
Non-Defaulting Lender
” means, at any time, each Lender that is not a Defaulting Lender at such time.
“
Non-LIBOR Quoted Currency
” means any currency other than a LIBOR Quoted Currency.
“
Note
” or “
Notes
” means the Revolving Notes and/or the Swing Line Note, individually or collectively, as appropriate.
“
Not Otherwise Applied
” means, with reference to any proceeds of any transaction or event or of the Cumulative Credit, in each case, that is proposed to be applied to a particular use or transaction, that
such amount has not previously been (and is not simultaneously being) applied to anything other than such particular use or transaction.
“
OFAC
” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“
Obligations
” means with respect to the Borrower and each Guarantor, (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, (b) all obligations of any Loan Party
owing to a Treasury Management Bank or a Swap Bank in respect of Secured Treasury Management Agreements or Secured Swap Agreements and (c) all Mexican Pesos Obligations, in the case of each of clauses (a), (b) and (c), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding;
provided
,
however
, that the “Obligations” of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“
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.
“
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 3.06
).
“
Outstanding Amount
” means (a) with respect to any Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
“
Overnight Rate
” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on
interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.
“
Participant
” has the meaning specified in
Section 11.06(d)
.
“
Participant Register
” has the meaning specified in
Section 11.06(d)
.
“
Participating Member State
” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“
PBGC
” means the Pension Benefit Guaranty Corporation or any successor thereto.
“
Pension Act
” means the Pension Protection Act of 2006.
“
Pension Funding Rules
” means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Internal Revenue 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 Internal Revenue 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 the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to minimum funding standards under Section 412 of the Internal Revenue Code.
“
Permitted Acquisitions
” means Investments consisting of an Acquisition by any Loan Party,
provided
that (a) no Default or Event of Default shall have occurred and be continuing or would result from such Acquisition, (b) the property acquired (or the property of the Person acquired) in such Acquisition is used or useful in the same or a related line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof), (c) the Administrative Agent shall have received all items in respect of the Equity Interests or property acquired in such Acquisition required to be delivered by the terms of
Section 7.12
and/or
Section 7.14
, (d) in the case of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition, (e) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, (i) the Loan Parties would be in compliance with the financial covenants set forth in
Section 8.11
as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a)
or
(b)
and (ii) the Consolidated Leverage Ratio is at least 0.25 less than the ratio required to be maintained at such time by
Section 8.11(a)
, (f) the Borrower shall have delivered to the Administrative Agent pro forma financial statements for the Borrower and its Subsidiaries after giving effect to such Acquisition for the twelve (12) month period ending as of the most recent fiscal quarter in a form satisfactory to the Administrative Agent, (g) the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) at and as if made as of the date of such Acquisition (after giving effect thereto) except to the extent such representations and warranties expressly relate to an earlier date, (h) if such transaction
involves the purchase of an interest in a partnership between the Borrower (or a Subsidiary) as a general partner and entities unaffiliated with the Borrower or such Subsidiary as the other partners, such transaction shall be effected by having such equity interest acquired by a corporate holding company directly or indirectly wholly-owned by the Borrower newly formed for the sole purpose of effecting such transaction and (i) immediately after giving effect to such Acquisition, there shall be at least $15,000,000 of availability under the Aggregate Revolving Commitments.
“
Permitted Liens
” means, at any time, Liens in respect of property of any Loan Party or any of its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.01
.
“
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 the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“
Platform
” has the meaning specified in
Section 7.02
.
“
Pledge Agreement
” means the pledge agreement dated as of the Closing Date executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of the Loan Parties, as amended or modified from time to time in accordance with the terms hereof.
“
Pro Forma Basis
”, “
Pro Forma Compliance
” and “
Pro Forma Effect
” means, in respect of a Specified Transaction, that such Specified Transaction and the following transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable period of measurement for the applicable covenant or requirement: (a) (i) with respect to any Disposition or Involuntary Disposition, income statement and cash flow statement items (whether positive or negative) attributable to the Person or property disposed of shall be excluded and (ii) with respect to any Acquisition or Investment, income statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in
Section 1.01
and (B) such items are supported by financial statements or other information satisfactory to the Administrative Agent, (b) any retirement of Indebtedness and (c) any incurrence or assumption of Indebtedness by the Borrower or any Subsidiary (and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination);
provided
,
that
, (x) Pro Forma Basis, Pro Forma Compliance and Pro Forma Effect in respect of any Specified Transaction shall be calculated in a reasonable and factually supportable manner and certified by a Responsible Officer of the Borrower and (y) any such calculation shall be subject to the applicable limitations set forth in the definition of Consolidated EBITDA;
provided
,
further
,
that
, at all times prior to the first delivery of financial statements pursuant to
Section 7.01(a)
or
(b)
, this definition shall be applied based on the pro forma financial statements of the Borrower and its Subsidiaries set forth on
Schedule 1.01
hereto and thereafter, based on the most recent financial statements delivered pursuant to
Section 7.01(a)
or
(b)
.
“
Pro Forma Compliance Certificate
” means a certificate of a Responsible Officer of the Borrower containing reasonably detailed calculations of the Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio as of the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a)
or
(b)
after giving Pro Forma Effect to the applicable Specified
Transaction;
provided
,
that
, at all times prior to the first delivery of financial statements pursuant to
Section 7.01(a)
or
(b)
, such certificate shall contain calculations based on the pro forma financial statements of the Borrower and its Subsidiaries set forth on
Schedule 1.01
hereto.
“
Public Lender
” has the meaning specified in
Section 7.02
.
“
Qualified ECP Guarantor
” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualified at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“
Rate Determination Date
” means two (2) Business Days prior to the commencement of the applicable Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent;
provided
that to the extent such market practice is not administratively feasible for the Administrative Agent, then “Rate Determination Date” means such other day as otherwise reasonably determined by the Administrative Agent).
“
Real Property Security Documents
” means with respect to the fee interest and/or leasehold interest of any Loan Party in any real property:
(a)
a fully executed and notarized Mortgage encumbering the fee interest and/or leasehold interest of such Loan Party in such real property;
(b)
if requested by the Administrative Agent in its sole discretion, maps or plats of an as-built survey of the sites of such real property certified to the Administrative Agent and the title insurance company issuing the policies referred to in clause (c) of this definition in a manner satisfactory to each of the Administrative Agent and such title insurance company, dated a date satisfactory to each of the Administrative Agent and such title insurance company by an independent professional licensed land surveyor, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 2011 with items 2, 3, 4, 6(b), 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(a), 13, 14, 16,17, 18 and 19 on Table A thereof completed;
(c)
ALTA mortgagee title insurance policies issued by a title insurance company acceptable to the Administrative Agent with respect to such real property, assuring the Administrative Agent that the Mortgage covering such real property creates a valid and enforceable first priority mortgage lien on such real property, free and clear of all defects and encumbrances except Permitted Liens, which title insurance policies shall otherwise be in form and substance satisfactory to the Administrative Agent and shall include such endorsements as are requested by the Administrative Agent;
(d)
evidence as to (i) whether such real property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “
Flood Hazard Property
”) and (ii) if such real property is a Flood Hazard Property, (A) whether the community in which such real property is located is participating in the National Flood Insurance Program, (B) the applicable Loan Party’s written acknowledgment of receipt of written notification from the Administrative Agent (1) as to the fact that such real property is a Flood Hazard Property and (2) as to whether the community in which each such Flood Hazard Property is located is participating in
the National Flood Insurance Program and (C) copies of insurance policies or certificates of insurance of the Borrower and its Subsidiaries evidencing flood insurance satisfactory to the Administrative Agent and naming the Administrative Agent and its successors and/or assigns as sole loss payee on behalf of the Lenders;
(e)
if requested by the Administrative Agent in its sole discretion, an environmental assessment report, as to such real property, in form and substance and from professional firms acceptable to the Administrative Agent;
(f)
if requested by the Administrative Agent in its sole discretion, evidence reasonably satisfactory to the Administrative Agent that such real property, and the uses of such real property, are in compliance in all material respects with all applicable zoning laws (the evidence submitted as to which should include the zoning designation made for such real property, the permitted uses of such real property under such zoning designation and, if available, zoning requirements as to parking, lot size, ingress, egress and building setbacks);
(g)
in the case of a leasehold interest of any Loan Party in such real property, (i) such estoppel letters, consents and waivers from the landlords on such real property as may be required by the Administrative Agent, which estoppel letters shall be in the form and substance satisfactory to the Administrative Agent and (ii) evidence that the applicable lease, a memorandum of lease with respect thereto, or other evidence of such lease in form and substance satisfactory to the Administrative Agent, has been or will be recorded in all places to the extent necessary or desirable, in the judgment of the Administrative Agent, so as to enable the Mortgage encumbering such leasehold interest to effectively create a valid and enforceable first priority lien (subject to Permitted Liens) on such leasehold interest in favor of the Administrative Agent (or such other Person as may be required or desired under local law); and
(h)
if requested by the Administrative Agent in its sole discretion, an opinion of legal counsel to the Loan Party granting the Mortgage on such real property, addressed to the Administrative Agent and each Lender, in form and substance reasonably acceptable to the Administrative Agent.
“
Recipient
” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“
Register
” has the meaning specified in
Section 11.06(c)
.
“
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.
“
Reportable Event
” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.
“
Request for Credit Extension
” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“
Required Lenders
” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender
shall be disregarded in determining Required Lenders at any time;
provided
that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.
“
Responsible Officer
” means the chief executive officer, president, chief financial officer, vice-president of finance, director of finance, treasurer, assistant treasurer or controller of a Loan Party and, solely for purposes of the delivery of certificates pursuant to
Sections 5.01
or
7.12(b)
, the secretary or any assistant secretary of a 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, limited liability company, 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 any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of any Loan Party or any Subsidiary, or 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 Equity Interests or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof), or any setting apart of funds or property for any of the foregoing.
“
Revaluation Date
” means (a) with respect to any Eurocurrency Rate Loan denominated in an Alternative Currency, each of the following: (i) each date of a Borrowing thereof, (ii) each date of a continuation thereof pursuant to
Section 2.02
, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit denominated in an Alternative Currency, each of the following: (i) each date of issuance thereof, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the L/C Issuer under any such Letter of Credit, and (iv)
such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require.
“
Revolving Commitment
” means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to
Section 2.01
, (b) purchase participations in L/C 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 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 Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.
“
Revolving Loan
” has the meaning specified in
Section 2.01
.
“
Revolving Note
” has the meaning specified in
Section 2.11(a)
.
“
S&P
” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., and any successor thereto.
“
Sale and Leaseback Transaction
” means, with respect to any Loan Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Loan Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“
Same Day Funds
” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
“
Sanctions
” means any international economic sanction administered or enforced by the United States government (including, without limitation, OFAC) the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“
SEC
” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“
Secured Party Designation Notice
” means a notice from any Lender or an Affiliate of a Lender substantially in the form of
Exhibit I
.
“
Secured Swap Agreement
” means any Swap Contract permitted under
Section 8.03
between any Loan Party and any Swap Bank;
provided
that for any of the foregoing to be included as a “Secured Swap Agreement” on any date of determination by the Administrative Agent, the applicable Swap Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.
“
Secured Treasury Management Agreement
” means any Treasury Management Agreement between any Loan Party and any Treasury Management Bank;
provided
, that for any of the foregoing to be included as a “Secured Treasury Management Agreement” on any date of determination by the Administrative Agent, the applicable Treasury Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.
“
Securitization Transaction
” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.
“
Security Agreement
” means the security agreement dated as of the Closing Date executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of the Loan Parties, as amended or modified from time to time in accordance with the terms hereof.
“
Solvent
” or “
Solvency
” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“
Special Notice Currency
” means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.
“
Specified Loan Party
” has the meaning set forth in
Section 4.08
.
“
Specified Transaction
” means (a) any Acquisition, any Disposition, any Involuntary Disposition, or any Investment that results in a Person becoming a Subsidiary, in each case, whether by merger, consolidation or otherwise, or any incurrence or repayment of Indebtedness or (b) any other event that by the terms of the Loan Documents requires Pro Forma Compliance with a test or covenant or requires such test or covenant to be calculated on a Pro Forma Basis.
“
Spot Rate
” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made;
provided
that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and
provided
further
that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“
Subsidiary
” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is 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 Borrower.
“
Swap Bank
” means any Person that (a) at the time it enters into a Swap Contract, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (b) in the case of any Swap Contract in effect on or prior to the Closing Date, is, as of the Closing Date or within thirty (30) days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Swap Contract or (c) within thirty (30) days after the time it enters into the applicable Swap Contract, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in each case, in its capacity as a party to such Swap Contract.
“
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 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 (any such master agreement, together with any related schedules, a “
Master Agreement
”), including any such obligations or liabilities under any Master Agreement.
“
Swap Obligation
” means with respect to any Guarantor
any obligation to pay or 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 mark-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 Lender
” means Bank of America 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 Borrowing of Swing Line Loans pursuant to
Section 2.04(b)
, which, if in writing, shall be substantially in the form of
Exhibit B
.
“
Swing Line Note
” has the meaning specified in
Section 2.11(a)
.
“
Swing Line Sublimit
” means an amount equal to the lesser of (a) $10,000,000
and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“
Synthetic Lease
” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP.
“
TARGET2
” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“
TARGET Day
” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“
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.
“
Threshold Amount
” means $5,000,000.
“
Total Credit Exposure
” means, as to any Lender at any time, the unused Commitments and Revolving Credit Exposure of such Lender at such time.
“
Total Revolving Outstandings
” means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
“
Transactions
” means the execution and delivery by the Loan Parties of this Agreement and the other Loan Documents, the borrowing of the Loans on the Closing Date and the creation and perfection of Liens granted under the Collateral Documents.
“
Treasury Management Agreement
” means any agreement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
“
Treasury Management Bank
” means any Person that (a) at the time it enters into a Treasury Management Agreement, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (b) in the case of any Treasury Management Agreement in effect on or prior to the Closing Date, is, as of the Closing Date or within thirty (30) days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Treasury Management Agreement or (c) within thirty (30) days after the time it enters into the applicable Treasury Management Agreement, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in each case, in its capacity as a party to such Treasury Management Agreement.
“
Type
” means, with respect to any Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
“
UCP
” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“
ICC
”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“
United States
” and “
U.S.
” mean the United States of America.
“
Unreimbursed Amount
” has the meaning specified in
Section 2.03(c)(i)
.
“
U.S. Person
” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“
U.S. Tax Compliance Certificate
” has the meaning specified in
Section 3.01(e)(ii)(B)(III)
.
“
VCS Properties
” means VCS Properties, LLC, an Ohio limited liability company.
“
VCS Properties Assets
” means (a) the forty-nine percent (49%) ownership interest of VCS Properties in Valley Steel, LLC, (b) the one hundred percent (100%) ownership interest of Shiloh Corporation in VCS Properties and (c) all of the assets (including personal property and real property) of VCS Properties.
“
Voting Stock
” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency.
“
Wholly Owned Subsidiary
” means any Person 100% of whose Equity Interests are at the time owned by the Borrower directly or indirectly through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Borrower.
.
Other Interpretive Provisions.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 the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, modified, extended, restated, replaced or supplemented from time to time (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 “
hereto
”, “
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, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and 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, extended, restated, replaced 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 real and personal property and 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.
.
Accounting Terms.1.03
Accounting Terms..
(a)
Generally
. Except as otherwise specifically prescribed herein, 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 from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein;
provided
,
however
, that calculations of Attributable Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease shall be made by the Borrower in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the 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
. The Borrower will provide a written summary of material changes in GAAP and in the consistent application thereof with each annual and quarterly Compliance Certificate delivered in accordance with
Section 7.02(b)
. If at any time any change in GAAP (including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower 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 shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.
(c)
Pro Forma Calculations
. Notwithstanding anything to the contrary contained herein, all calculations of the Consolidated Leverage Ratio (including for purposes of determining the Applicable Rate) and the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to all Specified Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four quarter period but not later than the date of such calculation;
provided
,
that
, notwithstanding the foregoing, when calculating the Consolidated Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (x) compliance with
Section 8.11
and/or (y) the Applicable Rate, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect. Notwithstanding anything to the contrary herein, for purposes of calculating the Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio at any time prior to the first delivery of financial statements pursuant to
Section 7.01(a)
or
(b)
, such calculation shall be determined based on the pro forma consolidated financial statements of the Borrower and its Subsidiaries set forth on
Schedule 1.01
hereto and thereafter, based on the most recent financial statements delivered pursuant to
Section 7.01(a)
or
(b)
.
(d)
Consolidation of Variable Interest Entities
. All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower 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 Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.
1.04
Rounding..
Any financial ratios required to be maintained by the Borrower 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).
1.05 Times of Day; Rates.
(e)
Times of Day
. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
(f)
Rates
. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “Eurocurrency Base Rate” or with respect to any comparable or successor rate thereto.
1.06
Letter of Credit Amounts..
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of 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 Dollar Equivalent of 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.
1.07
Exchange Rates; Currency Equivalents..
(a)
The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.
(b)
Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.
1.08
Additional Alternative Currencies..
(g)
The Borrower may from time to time request that Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency;”
provided
that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative Agent and the Lenders; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the L/C Issuer.
(h)
Any such request shall be made to the Administrative Agent not later than 11:00 a.m., twenty (20) Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof. Each such Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(i)
Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Lenders consent to making Eurocurrency Rate Loans in such requested currency and the Administrative Agent and such Lenders reasonably determine that a Eurocurrency Rate is available to be used for such requested currency, the Administrative Agent shall so notify the Borrower and (i) the Administrative Agent and such Lenders may amend the definition of Eurocurrency Base Rate to the extent necessary to add the applicable Eurocurrency Base Rate for such currency and (ii) to the extent the definition of Eurocurrency Base Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Borrowings of Eurocurrency Rate Loans. If the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and (i) the Administrative Agent and the L/C Issuer may amend the definition of Eurocurrency Base Rate to the extent necessary to add the applicable Eurocurrency Base Rate for such currency and (ii) to the extent the definition of Eurocurrency Base Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this
Section 1.08
, the Administrative Agent shall promptly so notify the Borrower.
.
1.09
Change of Currency..
.
(a)
Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption. If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.
(b)
Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(c)
Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
Commitments..
Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “
Revolving Loan
”) to the Borrower in Dollars or in one or more Alternative Currencies 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 such Lender’s Revolving Commitment;
provided
,
however
, that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment and (iii) the aggregate Outstanding Amount of all Revolving Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit. Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.01
, prepay under
Section 2.05
, and reborrow under this
Section 2.01
. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, or a combination thereof, as further provided herein.
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 Eurocurrency Rate Loans shall be made upon the Borrower’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 11:00 a.m. (i) three (3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans, (ii) four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this
Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $2,000,000
or a whole multiple of $1,000,000
in excess thereof. Except as provided in
Sections 2.03(c)
and
2.04(c)
, each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the currency of the Loans to be borrowed. If the Borrower fails to specify a currency in a Loan Notice requesting a Borrowing, then the Loans so requested shall be made in Dollars. If the Borrower fails to specify a Type of a Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans;
provided
, however, that in the case of a failure to timely request a continuation of Loans denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one (1) month. Any 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 Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.
(b)
Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation of Loans denominated in a currency other than Dollars, in each case as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Loan in an Alternative Currency, in each case on the Business Day specified in the applicable 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 Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and acceptable to) the Administrative Agent by the Borrower;
provided
,
however
, that if, on the date of a Borrowing of Revolving Loans denominated in Dollars, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings and
second
, shall be made available to the Borrower as provided above.
(c)
Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of the Interest Period for such Eurocurrency Rate Loan. During the existence of a Default, (x) no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in Dollars be converted immediately to Base Rate Loans and/or (y) the Required Lenders may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, in each case on the last day of the then current Interest Period with respect thereto.
(d)
The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e)
After giving effect to all Borrowings, 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 five (5) Interest Periods in effect with respect to all Loans.
(f)
The Borrower may at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit, the Swing Line Sublimit or the Alternative Currency Sublimit) by a maximum aggregate amount of up to ONE HUNDRED MILLION DOLLARS ($100,000,000) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or new Revolving Commitments from any other Person selected by the Borrower and acceptable to the Administrative Agent and the L/C Issuer;
provided
that:
(i)
any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii)
no Default or Event of Default shall exist and be continuing at the time of any such increase;
(iii)
no existing Lender shall be under any obligation to increase its Commitment and any such decision whether to increase its Commitment shall be in such Lender’s sole and absolute discretion;
(iv)
(1) any new Lender shall join this Agreement by executing such joinder documents required by the Administrative Agent and/or (2) any existing Lender electing to increase its Commitment shall have executed a commitment agreement satisfactory to the Administrative Agent;
(v)
as a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the date of such increase (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (2) in the case of the Borrower, certifying that, before and after giving effect to such increase, (x) the representations and warranties contained in
Article VI
and the other Loan Documents are true and correct in all material respects (or, if any such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the date of such increase, 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, if any such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date, and except that for purposes of this
Section 2.02(f)
, 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
, and (y) no Default or Event of Default exists; and
(vi)
Schedule 2.01
shall be deemed revised to include any increase in the Aggregate Revolving Commitments pursuant to this
Section 2.02(f)
and to include thereon any Person that becomes a Lender pursuant to this
Section 2.02(f)
.
The Borrower shall prepay any Loans owing by it and outstanding on the date of any such increase (and pay any additional amounts required pursuant to
Section 3.05
) to the extent necessary to keep the outstanding Loans ratable with any revised Commitments arising from any nonratable increase in the Commitments under this Section.
2.03
Letters of Credit..
(f)
The Letter of Credit Commitment
.
(i)
Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the 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 Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder;
provided
that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C 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 Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower 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.
(ii)
The L/C 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 more than twelve (12) months after the date of issuance or last extension, unless 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 all the Lenders have approved such expiry date.
(iii)
The L/C 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 L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B)
the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C)
except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;
(D)
such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency; or
(E)
the L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency;
(F)
any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to
Section 2.15(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 L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv)
The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v)
The L/C Issuer shall be under no obligation to amend any Letter of Credit if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi)
The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C 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 L/C 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 L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit
.
(vii)
Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C 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. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least five (5) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their 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 L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency 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 thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C 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 L/C 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 L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C 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 L/C Issuer or the Administrative Agent may require.
(viii)
Promptly after receipt of any Letter of Credit Application, the L/C 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 Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one (1) 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 be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage
times
the amount of such Letter of Credit.
(ix)
If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a 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 L/C 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 L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C 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 L/C Issuer shall not permit any such extension if (A) the L/C 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 of 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 seven (7) 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 Lender or the Borrower that one or more of the applicable conditions specified in
Section 5.02
is not then satisfied, and in each case directing the L/C Issuer not to permit such extension.
(x)
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 L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(g)
Drawings and Reimbursements; Funding of Participations
.
(i)
Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “
Honor Date
”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this
Section 2.03(c)(i)
and (B) the Dollar amount paid by the Borrower, whether on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, the Borrower agrees, as a separate and independent obligation, to indemnify the L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing. If the Borrower fails to timely reimburse the L/C Issuer on the Honor Date, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “
Unreimbursed Amount
”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Revolving Loans that are 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 2.02
for the principal amount of Base Rate Loans, but subject to the conditions set forth in
Section 5.02
(other than the delivery of a Loan Notice) and
provided
that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. Any notice given by the L/C 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 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 L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 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 Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.
(iii)
With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in
Section 5.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03
.
(iv)
Until each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.03(c)
to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
(v)
Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C 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 setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the 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;
provided
,
however
, that each Lender’s obligation to make Revolving Loans pursuant to this
Section 2.03(c)
is subject to the conditions set forth in
Section 5.02
(other than delivery by the Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi)
If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such 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 L/C Issuer shall be entitled to recover from such 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 L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(h)
Repayment of Participations
.
(i)
At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with
Section 2.03(c)
, if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in Dollars in the same funds as those received by the Administrative Agent.
(ii)
If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(i)
is required to be returned under any of the circumstances described in
Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent,
plus
interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(i)
Obligations Absolute
. The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be 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 Loan Document;
(ii)
the existence of any claim, counterclaim, setoff, defense or other right that the 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 L/C 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 presented under 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)
waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;
(v)
honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(vi)
any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the ISP or the UCP, as applicable;
(vii)
any payment by the L/C 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 L/C Issuer under such Letter of Credit to any Person 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
(viii)
any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency markets generally; or
(ix)
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, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(j)
Role of L/C Issuer
. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such 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 L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C 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 Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The 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;
provided
,
however
, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (viii) of
Section 2.03(e)
;
provided
,
however
, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit unless the L/C Issuer is prevented or prohibited from so paying as a result of any order or directive of any court or other Governmental Authority. In furtherance and not in limitation of the foregoing, the L/C 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 L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to 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. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“
SWIFT
”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
(k)
Applicability of ISP and UCP; Limitation of Liability
.
Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located,
the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(l)
Letter of Credit Fees
. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance, subject to
Section 2.15
, with its Applicable Percentage, in Dollars, a Letter of Credit fee (the “
Letter of Credit Fee
”) for each Letter of Credit equal to the Applicable Rate
times
the Dollar Equivalent of the daily maximum amount available to be drawn under such Letter of Credit. 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 1.06
. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(m)
Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer
. The Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the Dollar Equivalent of the actual 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) and on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. 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 1.06
. In addition, the Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(n)
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.
(o)
Letters of Credit Issued for 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 Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
(l)
L/C Issuer Reports to the Administrative Agent
.
Unless otherwise agreed by the Administrative Agent, each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this
Section 2.03
, report in writing to the Administrative Agent: (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such L/C Issuer, including extensions, amendments and renewals, expirations and cancellations and disbursements and
reimbursements, (ii) at least one (1) Business Day prior to the time that such L/C Issuer amends, renews or extends a Letter of Credit, the date of such amendment, renewal or extension and the stated amount of the applicable Letter of Credit after giving effect to such amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such L/C Issuer makes a payment pursuant to a Letter of Credit, the date and amount of such payment, (iv) on any Business Day on which the Borrower fails to reimburse a payment made pursuant to a Letter of Credit required to be reimbursed to such L/C Issuer on such day, the date of such failure and the amount of such payment and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request with respect to the Letters of Credit issued by such L/C Issuer.
2.04
Swing Line Loans..
(a)
Swing Line Facility
. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04
, may in its sole discretion make loans (each such loan, a “
Swing Line Loan
”) to the Borrower in Dollars 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;
provided
,
however
, that (x) after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment, (y) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.04
, prepay under
Section 2.05
, and reborrow under this
Section 2.04
. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each 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 Lender’s Applicable Percentage
times
the amount of such Swing Line Loan.
(b)
Borrowing Procedures
. Each Borrowing of Swing Line Loans shall be made upon the Borrower’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 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000, 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. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will 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 Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first 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 will, 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.
(c) Refinancing of Swing Line Loans
.
(i)
The Swing Line Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably requests and authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable 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 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 conditions set forth in
Section 5.02
(other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such 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 for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(c)(ii)
, each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower 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 Borrowing of Revolving Loans in accordance with
Section 2.04(c)(i)
, the request for Base Rate 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 Lenders fund its risk participation in the relevant Swing Line Loan and each 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 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 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 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 from time to time in effect, 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 Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv)
Each Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this
Section 2.04(c)
shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the Swing Line Lender, the 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;
provided
,
however
, that each Lender’s obligation to make Revolving Loans pursuant to this
Section 2.04(c)
is subject to the conditions set forth in
Section 5.02
. No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(a)
Repayment of Participations
.
(i)
At any time after any 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 Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
(ii)
If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in
Section 11.05
(including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent,
plus
interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(b)
Interest for Account of Swing Line Lender
. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this
Section 2.04
to refinance such 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.
(c)
Payments Directly to Swing Line Lender
. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
(d)
Auto Borrow Arrangement
. In order to facilitate the borrowing of Swing Line Loans, the Borrower and the Swing Line Lender may mutually agree to, and are hereby authorized to, enter into an auto borrow arrangement in form and substance satisfactory to the Swing Line Lender and the Administrative Agent (the “
Auto Borrow Agreement
”) providing for the automatic advance by the Swing Line Lender of Swing Line Loans under the conditions set forth in the Auto Borrow Agreement, subject to the conditions set forth herein. At any time an Auto Borrow Agreement is in effect, advances under the Auto Borrow Agreement shall be deemed Swing Line Loans for all purposes hereof, except that Borrowings of Swing Line Loans under the Auto Borrow Agreement shall be made in accordance with the Auto Borrow Agreement. For purposes of determining the Total Revolving Outstandings at any time during which an Auto Borrow Agreement is in effect, the Outstanding Amount of all Swing Line Loans shall be deemed to be the sum of the Outstanding Amount of Swing Line Loans at such time plus the maximum amount available to be borrowed under such Auto Borrow Agreement at such time.
.
2.
05
Prepayments..
.
(a)
Voluntary Prepayments
.
(i)
Revolving Loans
. The Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans in whole or in part without premium or penalty;
provided
that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (2) four (4) Business Days (or (5) five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies, and (3) on the date of prepayment of Base Rate Loans; (B) any such prepayment of Eurocurrency Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower 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 Eurocurrency Rate 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 2.15
, each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.
(ii)
Swing Line Loans
. The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative 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 (i) 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 (ii) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b)
Mandatory Prepayments of Loans
.
(i)
Revolving Commitments
.
(A)
If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided
,
however
, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(b)(i)
unless after the prepayment in full of the Revolving Loans and the Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect;
(B)
If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two (2) Business Days after receipt of such notice, the
Borrower shall prepay loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(ii)
Application of Mandatory Prepayments
. All amounts required to be paid pursuant to
Section 2.05(b)(i)
shall be applied ratably to Revolving Loans and Swing Line Loans and (after all Revolving Loans and Swing Line Loans have been repaid) to Cash Collateralize L/C Obligations.
Within the parameters of the applications set forth above, prepayments shall be applied first to Base Rate Loans and then to Eurocurrency Rate Loans in direct order of Interest Period maturities. All prepayments under this
Section 2.05(b)
shall be subject to
Section 3.05
, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
2.06
Termination or Reduction of Aggregate Revolving Commitments..
(c)
Optional Reductions
. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to an amount not less than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations;
provided
that (i) any such notice shall be received by the Administrative Agent not later than 12:00 noon five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $2,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, (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 or (D) the Alternative Currency Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of all Revolving Loans denominated in Alternative Currencies would exceed the Alternative Currency Sublimit then in effect.
(d)
Mandatory Reductions
. If after giving effect to any reduction or termination of Revolving Commitments under this
Section 2.06
, the Letter of Credit Sublimit, the Swing Line Sublimit or the Alternative Currency Sublimit exceeds the Aggregate Revolving Commitments at such time, the Letter of Credit Sublimit, the Swing Line Sublimit or the Alternative Currency Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.
(e)
Notice
. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, the Swing Line Sublimit, the Alternative Currency Sublimit or the Aggregate Revolving Commitments under this
Section 2.06
. Upon any reduction of the Aggregate Revolving Commitments, the Revolving Commitment of each Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. All fees in respect of the Aggregate Revolving Commitments accrued until the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.
.
2.07
Repayment of Loans..
(a)
Revolving Loans
. The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.
(b)
Swing Line Loans
. The Borrower shall repay each Swing Line Loan on the earliest to occur of (i) the date within one (1) Business Day of demand therefor by the Swing Line Lender,
(ii) the date thirty (30) Business Days after such Swing Line Loan is made and (iii) the Maturity Date.
.
2.08
Interest..
(a)
Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of the Eurocurrency Rate for such Interest Period
plus
the Applicable Rate, (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 Rate and (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 Rate (or with respect to any Swing Line Loan advanced pursuant to an Auto Borrow Agreement, such other rate as separately agreed in writing between the Borrower and the Swing Line Lender).
(b)
(i)
If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, or any Event of Default under
Section 9.01(f)
shall occur, all outstanding Obligations hereunder 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.
(i)
If any amount (other than principal of any Loan) is not paid when due (after giving effect to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, 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)
Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(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..
In addition to certain fees described in subsections (h) and (i) of
Section 2.03
:
(d)
Commitment Fee
. The Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, a commitment fee in Dollars (the “
Commitment Fee
”) at a rate per annum equal to the product of (i) the Applicable Rate
times
(ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (y) the Outstanding Amount of Revolving Loans and (z) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in
Section 2.15
. For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the Aggregate Revolving Commitments for purposes of determining the Commitment Fee. The Commitment 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 last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date;
provided
,
that
(A) no Commitment
Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender and (B) any Commitment Fee accrued with respect to the Revolving Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender. The Commitment Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(e)
Fee Letter
. The Borrower shall pay to MLPFS and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall be non-refundable for any reason whatsoever.
2.10
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate..
(f)
All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate) shall be made on the basis of a year of three hundred sixty-five (365) or three hundred sixty-six (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 three hundred sixty-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 three hundred sixty-five-day year) or, in the case of interest in respect of Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion 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 (1) 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.
(g)
If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii)
,
2.03(i)
or
2.08(b)
or under
Article IX
. The Borrower’s obligations under this paragraph shall survive the termination of the Commitments of all of the Lenders and the repayment of all other Obligations hereunder.
2.11
Evidence of Debt..
(h)
The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. 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 Borrower 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 Borrower hereunder to pay any amount owing with respect to the 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 Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each such promissory note shall (i) in the case of Revolving Loans, be in the form of
Exhibit C
(a “
Revolving Note
”) and (ii) in the case of Swing Line Loans, be in the form of
Exhibit D
(a “
Swing Line Note
”). Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
(i)
In addition to the accounts and records referred to in subsection (a), 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; Administrative Agent’s Clawback..
(j)
General
. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by the Borrower 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 Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (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 (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by Administrative Agent in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to the definition of “Interest Period”, if any payment to be made by the Borrower 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 in computing interest or fees, as the case may be.
(k)
(i)
Funding by Lenders; Presumption by Administrative Agent
. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any 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 any 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 Borrower 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 Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower 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 Overnight Rate, 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 Borrower 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 Borrower the amount of such interest paid by the Borrower 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 Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)
Payments by Borrower; Presumptions by Administrative Agent
. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C 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 L/C Issuer, in Same Day 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 Overnight Rate.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(l)
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 Borrower 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 promptly shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(m)
Obligations of Lenders Several
. The obligations of the Lenders hereunder to make 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)
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)
(n)
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.
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 any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it (excluding any amounts applied by the Swing Line Lender to outstanding Swing Line Loans) resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its
pro
rata
share thereof as provided herein, then 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 L/C 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 principal of and accrued interest on their respective Loans and other amounts owing them,
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 (x) any payment made by or on behalf of the Borrower 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), (y) the application of Cash Collateral provided for in
Section 2.14
or (z) 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 L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary 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.
2.14
Cash Collateral..
(o)
Certain Credit Support Events
. If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to
Section 9.02(c)
, or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one (1) Business Day (in all other cases) following any request by the Administrative
Agent or the L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to
Section 2.15(a)(iv)
and any Cash Collateral provided by the Defaulting Lender).
(p)
Grant of Security Interest
. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and agrees 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 security for the obligations to which such Cash Collateral may be applied pursuant to
Section 2.14(c)
. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower 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 blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(q)
Application
. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this
Section 2.14
or
Sections 2.03
,
2.05
,
2.15
or
9.02
in respect of Letters of Credit shall be held and applied in satisfaction of the specific L/C Obligations, obligations to fund participations therein (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 otherwise be provided for herein.
(r)
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 Lender) (or, as appropriate, its assignee following compliance with
Section 11.06(b)(vi)
) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral;
provided
,
however
, (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.15
Defaulting Lenders..
(s)
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 Amendment
. 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” and
Section 11.01
.
(ii)
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or other amount 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
, to the payment on a
pro
rata
basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder;
third
, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with
Section 2.14
;
fourth
, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such 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, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with
Section 2.14
;
sixth
, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the 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 Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that 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 L/C Borrowings in respect of which such 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 the pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a
pro
rata
basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to
Section 2.15(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 2.15(a)(ii)
shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)
Certain Fees
.
(A)
No Defaulting Lender shall be entitled to receive any fee payable under
Section 2.09(a)
for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B)
Each Defaulting 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 2.14
.
(C)
With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to
clause (A)
or
(B)
above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to
clause (iv)
below, (y) pay to the L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or Swing Line Lender’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 L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Revolving 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, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower 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 Commitment. 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.
(v)
Cash Collateral, Repayment of Swing Line Loans
. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in any amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in
Section 2.14
.
(t)
Defaulting Lender Cure
. If the Borrower, the Administrative Agent, Swing Line Lender and the L/C 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 Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a
pro
rata
basis by the Lenders in accordance with their Applicable Percentages (without giving effect to
Section 2.15(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 Borrower while that Lender was a Defaulting Lender;
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 having been a Defaulting Lender.
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 any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, 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 Internal Revenue 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 Internal Revenue Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this
Section 3.01
) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(iii)
If any Loan Party or the Administrative Agent shall be required by any applicable Laws other than the Internal Revenue Code to withhold or
deduct any Taxes from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to
subsection (e)
below, (B) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this
Section 3.01
) the applicable Recipient 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 Loan Parties
. Without limiting the provisions of
subsection (a)
above, the Loan Parties shall timely pay to the relevant Governmental Authority in
accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c)
Tax Indemnifications
. (i) Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this
Section 3.01
) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the L/C 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 L/C Issuer, shall be conclusive absent manifest error. Each of the Loan Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to
Section 3.01(c)(ii)
below.
(i)
Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within ten (10) days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of
Section 11.06(d)
relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C 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)
.
(d)
Evidence of Payments
. Upon request by any Loan Party or the Administrative Agent, as the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority as provided in this
Section 3.01
, each Loan Party shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, 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 or the Administrative Agent, as the case may be.
(e)
Status of Lenders; Tax Documentation
. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any
Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in
Section 3.01(e)(ii)(A)
,
(ii)(B)
and
(ii)(D)
below) 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.
(i)
Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A)
any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower 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 reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(I)
in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II)
executed originals of Internal Revenue Service Form W-8ECI,
(III)
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of
Exhibit H-1
to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B)
of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “
U.S. Tax Compliance Certificate
”) and (y) executed originals of IRS Form W-8BEN; or
(IV)
to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of
Exhibit H-2
or
Exhibit H-3
, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable;
provided
that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of
Exhibit H-4
on behalf of each such direct and indirect partner;
(C)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower 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 reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)
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 Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(ii)
Each Lender agrees that if any form or certification it previously delivered pursuant to this
Section 3.01
expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(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 L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this
Section 3.01
, it shall pay to the Loan Party
an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this
Section 3.01
with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund),
provided
that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient 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.
(g)
Survival
. Each party’s obligations under this
Section 3.01
shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
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 Eurocurrency Rate (whether denominated in Dollars or an Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency 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 or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Loans to Eurocurrency Rate 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 Eurocurrency 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 Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert all Eurocurrency Rate 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 Eurocurrency 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 Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate 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 Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender at its option may make any Credit Extension by causing any domestic or foreign branch or Affiliate of such Lender to make such Credit Extension;
provided
that any exercise of such option shall not affect the obligation of the Loan Parties to repay such Credit Extension in accordance with the terms of this Agreement.
3.03
Inability to Determine Rates..
If in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof or otherwise, (a) the Administrative Agent determines that (i) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore interbank eurodollar market for such currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan or (ii) adequate and reasonable means do not exist for determining the Eurocurrency Base Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency) or in connection with an existing or proposed Base Rate Loan (in each case with respect to this clause (a), “
Impacted Loans
”), or (b) the Administrative Agent or the Required Lenders determine that for any reason the Eurocurrency Base Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to the Lenders of funding such Loan, the Administrative Agent will promptly notify the Borrower and all Lenders. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) and (y) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) 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.
Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (a) of this
Section 3.03
, the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the applicable Impacted Loans, in which case, such alternative interest rate shall apply with respect to such Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the applicable Impacted Loans under the first sentence of this
Section 3.03
, (2) the Administrative Agent notifies the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the applicable Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative interest rate or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the ability of such Lender to do any of the foregoing and, in each case, such Lender provides the Administrative Agent and the Borrower written notice thereof.
3.04
Increased Costs..
(h)
Increased Costs Generally
. If any Change in Law shall:
(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 reflected in the Eurocurrency Rate) or the L/C Issuer;
(ii)
subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)
impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate 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, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will, upon demand, pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered;
provided
,
however
, a Lender or L/C Issuer shall not be entitled to any compensation pursuant to this clause (a) to the extent such Lender or L/C Issuer is not imposing such charges or requesting such compensation from borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities.
(b)
Capital Requirements
. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C 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 L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will, upon demand, pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered;
provided
,
however
, a Lender or L/C Issuer shall not be entitled to any compensation pursuant to this clause (b) to the extent such Lender or L/C Issuer is not imposing such charges or requesting such compensation from borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities.
(c)
Mandatory Costs
. If any Lender or the L/C Issuer incurs any Mandatory Costs attributable to the Obligations, then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such Mandatory Costs. Such amount shall be expressed as a percentage rate per annum and shall be payable on the full amount of the applicable Obligations.
(d)
Certificates for Reimbursement
. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a), (b) or (c) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(e)
Delay in Requests
. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C 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 (9) -month period referred to above shall be extended to include the period of retroactive effect thereof).
3.05
Compensation for Losses..
Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(i)
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);
(j)
any failure by the Borrower (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;
(k)
any failure by the Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date or any payment thereof in a different currency; or
(l)
any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to
Section 11.13
;
excluding any loss of anticipated profits but 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 Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05
, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in determining the Eurocurrency Rate 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 Eurocurrency Rate Loan was in fact so funded.
3.06
Mitigation Obligations; Replacement of Lenders..
(m)
Designation of a Different Lending Office
. If any Lender requests compensation under
Section 3.04
, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, the L/C Issuer or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to
Section 3.01
, or if any Lender gives a notice pursuant to
Section 3.02
, then at the request of the Borrower such Lender or the L/C Issuer shall, as applicable, 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 L/C 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 L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.
(n)
Replacement of Lenders
. If any Lender requests compensation under
Section 3.04
, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01
and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with
Section 3.06(a)
, the Borrower may replace such Lender in accordance with
Section 11.13
.
3.07
Survival..
All of the Borrower’s obligations under this
Article III
shall survive termination of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.
ARTICLE IV
GUARANTY
4.01
The Guaranty..
Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Swap Bank, each Treasury Management Bank and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the prompt payment of all Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, Secured Swap Agreements, Secured Treasury Management Agreements or Mexican Pesos Agreements, (i) the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law and (ii) the Obligation of a Guarantor that are guaranteed under this Guaranty shall exclude any Excluded Swap Obligations with respect to such Guarantor.
4.02
Obligations Unconditional..
The obligations of the Guarantors under
Section 4.01
are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, Secured Swap Agreements, Secured Treasury Management Agreements or Mexican Pesos Agreements, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this
Section 4.02
that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under this
Article IV
until such time as the Obligations have been paid in full and the Commitments have expired or terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:
(o)
at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;
(p)
any of the acts mentioned in any of the provisions of any of the Loan Documents, any Secured Swap Agreement, any Secured Treasury Management Agreement, any Mexican Pesos Agreement or any other agreement or instrument referred to in the Loan Documents, such Secured Swap Agreements, such Secured Treasury Management Agreements or such Mexican Pesos Agreements shall be done or omitted;
(q)
the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents, any Secured Swap Agreement, any Secured Treasury Management Agreement or any Mexican Pesos Agreement, or any other agreement or instrument referred to in the Loan Documents, such Secured Swap Agreements, such Secured Treasury Management Agreements or such Mexican Pesos Agreements shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;
(r)
any Lien granted to, or in favor of, the Administrative Agent or any Lender or Lenders as security for any of the Obligations shall fail to attach or be perfected; or
(s)
any of the Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under
any of the Loan Documents, any Secured Swap Agreement, any Secured Treasury Management Agreement or any Mexican Pesos Agreement, or any other agreement or instrument referred to in the Loan Documents, such Secured Swap Agreements, such Secured Treasury Management Agreements or such Mexican Pesos Agreements, or against any other Person under any other guarantee of, or security for, any of the Obligations.
4.03
Reinstatement..
The obligations of the Guarantors under this
Article IV
shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses (including, without limitation, the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
4.04
Certain Additional Waivers..
Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to
Section 4.02
and through the exercise of rights of contribution pursuant to
Section 4.06
.
4.05
Remedies..
The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in
Section 9.02
(and shall be deemed to have become automatically due and payable in the circumstances provided in said
Section 9.02
) for purposes of
Section 4.01
notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of
Section 4.01
. The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms thereof.
4.06
Rights of Contribution..
The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until all Obligations have been paid in full and the Commitments have terminated.
4.07
Guarantee of Payment; Continuing Guarantee..
The guarantee in this
Article IV
is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.
4.08
Keepwell
..
Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty in this
Article IV
by any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (a “
Specified Loan Party
”) or the grant of a security interest under the Loan Documents by any such Specified Loan Party, in either case, becomes effective with respect to any Swap Obligation, 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 Guarantor’s obligations and undertakings under this
Article IV
voidable under applicable Debtor Relief Laws, and not for any greater amount). The obligations and undertakings of each applicable Loan Party under this Section shall remain in full force and effect until such time as the Obligations (other than contingent indemnification obligations that survive the termination of this Agreement) have been paid in full and the Commitments have expired or terminated. 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 Specified Loan Party for all purposes of the Commodity Exchange Act.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01
Conditions of Initial Credit Extension..
This Agreement shall become effective upon and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(t)
Loan Documents
. Receipt by the Administrative Agent of executed counterparts of this Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each Lender.
(u)
Opinions of Counsel
. Receipt by the Administrative Agent of favorable opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as of the Closing Date, and in form and substance satisfactory to the Administrative Agent.
(v)
Financial Statements
. The Administrative Agent shall have received:
(i)
the Audited Financial Statements;
(ii)
the Interim Financial Statements; and
(iii)
financial projections for the Borrower and its Subsidiaries in form and substance satisfactory to the Lenders for each year commencing with the fiscal year ending October 31, 2014 through October 31, 2018.
(w)
No Material Adverse Change
. There shall not have occurred a material adverse change since October 31, 2012 in the business, assets, income, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole.
(x)
Litigation
. There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before an arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(y)
Organization Documents, Resolutions, Etc
. Receipt by the Administrative Agent of the following, each of which shall be originals or facsimiles (followed promptly by originals), in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i)
copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(ii)
such certificates of resolutions or other action, incumbency certificates 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; and
(iii)
such documents and certifications as the Administrative Agent may require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(z)
Perfection and Priority of Liens
. Receipt by the Administrative Agent of the following:
(i)
searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;
(ii)
UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(iii)
all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Pledge Agreement, together with duly executed in blank and undated stock powers attached thereto;
(iv)
searches of ownership of, and Liens on, intellectual property of each Loan Party in the appropriate governmental offices;
(v)
duly executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the intellectual property of the Loan Parties; and
(vi)
in the case of any personal property Collateral located at a premises leased by a Loan Party, such estoppel letters, consents and waivers from the landlords on such real property as may be required by the Administrative Agent.
(aa)
Real Property Collateral
. Receipt by the Administrative Agent of Real Property Security Documents with respect to the fee interest and/or leasehold interest of any Loan Party in each real property identified as a “Mortgaged Property” on
Schedule 6.20(a)
(except to the extent subject to a post-closing undertaking pursuant to
Section 7.15
).
(ab)
Evidence of Insurance
. Receipt by the Administrative Agent of copies of insurance policies or certificates of insurance of the Loan Parties evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to, naming the Administrative Agent as additional insured (in the case of liability insurance) or Lender’s loss payee (in the case of hazard insurance) on behalf of the Lenders.
(ac)
Closing Certificate
. Receipt by the Administrative Agent of a certificate signed by a Responsible Officer of the Borrower certifying that (i) the conditions specified in
Sections 5.01
(d)
and
(e)
and
Sections 5.02(a)
and
(b)
have been satisfied and (ii) the Borrower and its Subsidiaries (after giving effect to the transactions contemplated hereby and the incurrence of Indebtedness related thereto) are Solvent on a consolidated basis.
(ad)
Termination of Existing Credit Agreement
. Receipt by the Administrative Agent of evidence that the Existing Credit Agreement concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement concurrently with the Closing Date are being released.
(ae)
Fees
. Receipt by the Administrative Agent, the Joint Lead Arrangers and the Lenders of any fees required to be paid on or before the Closing Date.
(af)
Attorney Costs
. Unless waived by the Administrative Agent, the Borrower shall have paid all 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 fees, charges and disbursements as shall constitute its reasonable estimate of such 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 Borrower and the Administrative Agent).
(ag)
Other
. Receipt by the Administrative Agent and the Lenders of such other documents, instruments, agreements and information as requested by the Administrative Agent or any Lender, including, but not limited to, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; such information may include, if requested by the Administrative Agent, asset appraisal reports and written audits of accounts receivable, inventory, payables, controls and systems.
Without limiting the generality of the provisions of the last paragraph of
Section 10.03
, 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 and the L/C Issuer to honor any Request for Credit Extension is subject to the following conditions precedent:
(ah)
The representations and warranties of the Borrower and each other Loan Party 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, if any such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) 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 as of such earlier date, and except that for purposes of this
Section 5.02
, 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
.
(ai)
No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(aj)
The Administrative Agent and, if applicable, the L/C Issuer and/or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(ak)
In the case of a Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency.
Each Request for Credit Extension submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in
Sections 5.02(a)
and
(b)
have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:
6.01
Existence, Qualification and Power..
Each Loan Party (a) is duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents 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 reasonably be expected to have a Material Adverse Effect.
6.02
Authorization; No Contravention..
The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries 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 (including, without limitation, Regulation U or Regulation X issued by the FRB), except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b) to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.
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 the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than (a) those that have already been obtained and are in full force and effect and (b) filings to perfect the Liens created by the Collateral Documents.
6.04
Binding Effect..
Each Loan Document has been duly executed and delivered by each Loan Party that is party thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is party thereto, enforceable against each such Loan Party in accordance with its terms.
6.05
Financial Statements; No Material Adverse Effect..
(al)
The Audited 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 the financial condition of the Borrower 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; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, commitments and Indebtedness.
(am)
The Interim 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 the financial condition of the Borrower 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; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(an)
From the date of the Audited Financial Statements to and including the Closing Date, there has been no Disposition by any Loan Party or any Subsidiary, or any Involuntary Disposition, of any material part of the business or property of any Loan Party or any Subsidiary, and no purchase or other acquisition by any of them of any business or property (including any Equity Interests of any other Person) material to any Loan Party or any Subsidiary, in each case, which is not reflected in the foregoing financial statements or in the notes thereto and has not otherwise been disclosed in writing to the Lenders on or prior to the Closing Date.
(ao)
The financial statements delivered pursuant to
Section 7.01(a)
and
(b)
have been prepared in accordance with GAAP (except as may otherwise be permitted under
Section 7.01(a)
and
(b)
) and present fairly (on the basis disclosed in the footnotes to such financial statements (as applicable)) the consolidated financial condition, results of operations and cash flows of the Borrower and its Subsidiaries as of the dates thereof and for the periods covered thereby.
(ap)
Since the date of the Audited 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.
.
6.06
Litigation..
There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, 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 properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or (b) if determined adversely, could reasonably be expected to have a Material Adverse Effect.
6.07
No Default..
(a)
Neither any Loan Party nor any Subsidiary is in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.
(b)
No Default has occurred and is continuing.
.
Ownership of Property; Liens.6.08
Ownership of Property; Liens..
Each Loan Party and its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of each Loan Party and its Subsidiaries is subject to no Liens, other than Permitted Liens.
6.09
Environmental Compliance..
Except as could not reasonably be expected to have a Material Adverse Effect:
(a)
Each of the Facilities and all operations at the Facilities are in compliance with all applicable Environmental Laws, and there is no violation of any Environmental Law with respect to the Facilities or the Businesses, and there are no conditions relating to the Facilities or the Businesses that could give rise to liability under any applicable Environmental Laws.
(b)
None of the Facilities contains, or has previously contained, any Hazardous Materials at, on or under the Facilities in amounts or concentrations that constitute or constituted a violation of, or could give rise to liability under, Environmental Laws.
(c)
Neither any Loan Party nor any Subsidiary has received any written notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Facilities or the Businesses, nor does any Responsible Officer of any Loan Party have knowledge or reason to believe that any such notice will be received or is being threatened.
(d)
Hazardous Materials have not been transported or disposed of from the Facilities, or generated, treated, stored or disposed of at, on or under any of the Facilities or any other location, in each case by or on behalf of any Loan Party or any Subsidiary in violation of, or in a manner that would be reasonably likely to give rise to liability under, any applicable Environmental Law.
(e)
No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Loan Parties, threatened, under any Environmental Law to which any Loan Party or any Subsidiary is or will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to any Loan Party, any Subsidiary, the Facilities or the Businesses.
(f)
There has been no release or threat of release of Hazardous Materials at or from the Facilities, or arising from or related to the operations (including, without limitation, disposal) of any Loan Party or any Subsidiary in connection with the Facilities or otherwise in connection with the Businesses, in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws.
6.10
Insurance..
(g)
The properties of the Loan Parties and their Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of such Persons, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or the applicable Subsidiary operates. The insurance coverage of the Loan Parties and their Subsidiaries as in effect on the Closing Date is outlined as to carrier, policy number, expiration date, type, amount and deductibles on
Schedule 6.10
.
(h)
The Borrower and its Subsidiaries maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that constitutes Collateral, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent.
6.11
Taxes..
The Loan Parties and their Subsidiaries have filed all federal, state and other tax returns and reports required to be filed, and have paid all federal, state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
6.12
ERISA Compliance..
(i)
Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state laws. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue 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 Internal Revenue 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 Internal Revenue Code or an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of the Loan Parties, nothing has occurred that would prevent, or cause the loss of, such tax-qualified status.
(j)
There are no pending or, to the best knowledge of the Loan Parties, 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. To the knowledge of the Loan Parties, 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.
(k)
(i) No ERISA Event has occurred and neither the Borrower 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) the Borrower and each ERISA Affiliate has met all material 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 Internal Revenue Code) is sixty percent (60%) or higher and neither the Borrower 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 sixty percent (60%) as of the most recent valuation date; (iv) neither the Borrower 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) neither the Borrower 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.
6.13
Subsidiaries..
Set forth on
Schedule 6.13
is a complete and accurate list as of the Closing Date of each Subsidiary of any Loan Party, together with (a) jurisdiction of formation, (b) number of shares of each class of Equity Interests outstanding, (c) number and percentage of outstanding shares of each class owned (directly or indirectly) by any Loan Party or any Subsidiary and (d) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights with respect thereto. The outstanding Equity Interests of each Subsidiary of any Loan Party are validly issued, fully paid and non-assessable.
6.14
Margin Regulations; Investment Company Act..
(l)
The Borrower is not engaged and will not 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. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of
Section 8.01
or
Section 8.05
or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of
Section 9.01(e)
will be margin stock.
(m)
None of any Loan Party, any Person Controlling any Loan Party, or 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 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 statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of any Loan Party 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, the Loan Parties represent 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 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 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 legal right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “
IP Rights
”) that are reasonably necessary for the operation of their respective businesses. Set forth on
Schedule 6.17
is a list of all IP Rights registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and owned by each Loan Party as of the Closing Date. Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning the use of any IP Rights or the validity or effectiveness of any IP Rights, nor does any Loan Party know of any such claim, and, to the knowledge of the Loan Parties, the use of any IP Rights by any Loan Party or any of its Subsidiaries or the granting of a right or a license in respect of any IP Rights from any Loan Party or any of its Subsidiaries does not infringe on the rights of any Person. As of the Closing Date, none of the IP Rights owned by any of the Loan Parties or any of its Subsidiaries is subject to any licensing agreement or similar arrangement except as set forth on
Schedule 6.17
.
6.18
Solvency..
The Loan Parties are Solvent on a consolidated basis.
6.19
Perfection of Security Interests in the Collateral..
The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are currently perfected security interests and Liens, prior to all other Liens other than Permitted Liens.
6.20
Business Locations..
Set forth on
Schedule 6.20(a)
is a list of all real property located in the United States that is owned or leased by the Loan Parties as of the Closing Date. Set forth on
Schedule 6.20(b)
is the tax payer identification number and organizational identification number of each Loan Party as of the Closing Date. The exact legal name and state of organization of (a) the Borrower is as set forth on the signature pages hereto and (b) each Guarantor is (i) as set forth on the signature pages hereto, (ii) as set forth on the signature pages to the Joinder Agreement pursuant to which such Guarantor became a party hereto or (iii) as may be otherwise disclosed by the Loan Parties to the Administrative Agent in accordance with
Section 8.13(c)
. Except as set forth on
Schedule 6.20(c)
, no Loan Party has during the five years preceding the Closing Date
(i) changed its legal name, (ii) changed its state of formation, or (iii) been party to a merger, consolidation or other change in structure.
6.21
Labor Matters..
There are no collective bargaining agreements (except as set forth on
Schedule 6.21
) or Multiemployer Plans covering the employees of any Loan Party or any Subsidiary as of the Closing Date and neither any Loan Party nor any Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five years.
6.22
OFAC..
Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity currently the subject of any Sanctions, nor is the Borrower or any Subsidiary located, organized or resident in a Designated Jurisdiction.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Loan Parties shall and shall cause each Subsidiary to:
7.01
Financial Statements..
Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(n)
upon the earlier of the date that is ninety (90) days after the end of each fiscal year of the Borrower and the date such information is filed with the SEC, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity 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, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and
(o)
upon the earlier of the date that is forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower and the date such information is filed with the SEC, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
7.02
Certificates; Other Information..
Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
(p)
concurrently with the delivery of the financial statements referred to in
Section 7.01(a)
, a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
(q)
concurrently with the delivery of the financial statements referred to in
Sections 7.01(a)
and
(b)
, a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower;
(r)
no more than sixty (60) days after the end of each fiscal year of the Borrower, beginning with the fiscal year ending October 31, 2013, an annual business plan and budget of the Borrower and its Subsidiaries containing, among other things, pro forma financial statements for each quarter of the next fiscal year;
(s)
promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(t)
promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(u)
promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to
Section 7.01
or any other clause of this
Section 7.02
;
(v)
promptly, and in any event within tent (10) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(w)
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 or any Lender may reasonably from time to time request; and
(x)
concurrently with the delivery of the financial statements referred to in
Sections 7.01(a)
and
(b)
, a certificate of a Responsible Officer of the Borrower (i) listing (A) all applications by any Loan Party, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (B) all issuances of registrations or letters on existing applications by any Loan Party for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (C) all Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered into by any Loan Party since the date of
the prior certificate (or, in the case of the first such certificate, the Closing Date), and (ii) attaching the insurance binder or other evidence of insurance for any insurance coverage of any Loan Party or any Subsidiary that was renewed, replaced or modified during the period covered by such financial statements.
Documents required to be delivered pursuant to
Section 7.01(a)
or
(b)
or
Section 7.02
(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 Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on
Schedule 11.02
; or (ii) on which such documents are posted on the Borrower’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
: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by facsimile or e-mail) of the posting of any such documents and provide to the Administrative Agent by e-mail electronic versions (
i.e.
, soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “
Borrower Materials
”) by posting the Borrower Materials on Debt Domain, IntraLinks, 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 Borrower or its 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 Person’s securities. The Borrower hereby agrees that (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,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower 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 as “Public Side Information;” and (z) the Administrative Agent and the Joint Lead 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 that is not designated as “Public Side Information.”
7.03
Notices..
(y)
Promptly (and in any event, within two (2) Business Days) notify the Administrative Agent and each Lender of the occurrence of any Default.
(z)
Promptly (and in any event, within five (5) Business Days) notify the Administrative Agent and each Lender of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(aa)
Promptly (and in any event, within five (5) Business Days) notify the Administrative Agent and each Lender of the occurrence of any ERISA Event.
(ab)
Promptly (and in any event, within five (5) Business Days) notify the Administrative Agent and each Lender of any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary, including any determination by the Borrower referred to in
Section 2.10(b)
.
(ac)
Promptly (and in any event, within three (3) Business Days) deliver to the Administrative Agent notice of entering into any customer supplier financing program (other than the JCI Supplier Financing Program and the Nissan Supplier Financing Program) and a copy of all agreements entered into by the Borrower or any Subsidiary in connection therewith.
(ad)
Upon the reasonable written request of the Administrative Agent following the occurrence of any event or the discovery of any condition which the Administrative Agent or the Required Lenders believe has caused (or could be reasonably expected to cause) the representations and warranties set forth in
Section 6.09
to be untrue in any material respect, furnish or cause to be furnished to the Administrative Agent, at the Loan Parties’ expense, a report of an environmental assessment of reasonable scope, form and depth, (including, where appropriate, invasive soil or groundwater sampling) by a consultant acceptable to the Administrative Agent as to the nature and extent of the presence of any Hazardous Materials on any real properties and as to the compliance by any Loan Party or any of its Subsidiaries with Environmental Laws at such real properties. If the Loan Parties fail to deliver such an environmental report within seventy-five (75) days after receipt of such written request then the Administrative Agent may arrange for the same, and the Loan Parties hereby grant to the Administrative Agent and its representatives access to the real properties to undertake such an assessment (including, where appropriate, invasive soil or groundwater sampling). The cost of any assessment arranged for by the Administrative Agent pursuant to this provision will be payable by the Loan Parties on demand and added to the obligations secured by the Collateral Documents.
Each notice pursuant to this
Section 7.03(a)
through
(f)
shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the applicable Loan Party has taken and proposes 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 contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Loan Party or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, 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..
(ae)
Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction permitted by
Section 8.04
or
8.05
.
(af)
Preserve, renew and maintain in full force and effect its good standing under the Laws of the jurisdiction of its organization, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(ag)
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 the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(ah)
Preserve or renew all of its material registered patents, copyrights, trademarks, trade names and service marks, the non-preservation or non-renewal of which could reasonably be expected to have a Material Adverse Effect.
7.06
Maintenance of Properties..
(ai)
Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted.
(aj)
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.
(ak)
Use the standard of care typical in the industry in the operation and maintenance of its facilities.
7.07
Maintenance of Insurance..
(al)
Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.
(am)
Without limiting the foregoing, (i) maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that constitutes Collateral, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent, (ii) furnish to the Administrative Agent evidence of the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof, and (iii) furnish to the Administrative Agent prompt written notice of any redesignation of any such improved real property into or out of a special flood hazard area.
(an)
Cause the Administrative Agent and its successors and/or assigns to be named as lender’s loss payee or mortgagee as its interest may appear, and/or additional insured with respect to any such insurance providing liability coverage or coverage in respect of any Collateral, and cause each provider of any such insurance to agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent thirty days (or such lesser amount as the Administrative Agent may agree) prior written notice before any such policy or policies shall be altered or canceled.
7.08
Compliance with Laws..
Comply with the requirements of all Laws 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 contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
7.09
Books and Records..
(ao)
Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Loan Party or such Subsidiary, as the case may be.
(ap)
Maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or such Subsidiary, as the case may be.
7.10
Inspection Rights..
Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours and as often as may be desired, upon reasonable advance notice to the Borrower;
provided
,
however
, that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.
7.11
Use of Proceeds..
Use the proceeds of the Credit Extensions (a) to refinance certain existing Indebtedness, (b) to finance working capital, capital expenditures and Permitted Acquisitions and (c) for other general corporate purposes,
provided
that in no event shall the proceeds of the Credit Extensions be used in contravention of any Law or of any Loan Document.
7.12
Additional Subsidiaries..
(aq)
Within thirty (30) days after the acquisition or formation of any Subsidiary (it being understood that any of C&H Design or VCS Properties ceasing to be an Immaterial Subsidiary and contemporaneously therewith becoming a Material Subsidiary shall be deemed to be an acquisition of a Domestic Subsidiary for all purposes of this
Section 7.12
), notify the Administrative Agent thereof in writing, together with the (i) jurisdiction of formation, (ii) number of shares of each class of Equity Interests outstanding, (iii) number and percentage of outstanding shares of each class owned (directly or indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights with respect thereto; and
(ar)
Within thirty (30) days after the acquisition or formation of any Subsidiary (or such later date as the Administrative Agent may agree in its sole discretion), if such Subsidiary is a Domestic Subsidiary, cause such Person to (i) become a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate for such purpose, and (ii) deliver to the Administrative Agent documents of the types referred to in
Sections 5.01(f)
and
(g)
and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in
clause (i)
), all in form, content and scope satisfactory to the Administrative Agent.
7.13
ERISA Compliance..
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 Internal Revenue Code and other federal or state law; (b) cause each Plan that is qualified under Section 401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required contributions to any Plan subject to Section 412, Section 430 or Section 431 of the Internal Revenue Code.
7.14
Pledged Assets..
(as)
Equity Interests
. Cause (a) 100% of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than, C&H Design and VCS Properties, in each case, for so long as such Person is an Immaterial Subsidiary) and (b) 66% (or such greater percentage that, due to a change in an applicable Law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by a Loan Party or any Domestic Subsidiary to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the holders of the Obligations, pursuant to the terms and conditions of the Collateral Documents, together with opinions of counsel and any filings and deliveries necessary in connection therewith to perfect the security interests therein, all in form and substance satisfactory to the Administrative Agent.
(at)
Other Property
. Cause all property (other than Excluded Property) of each Loan Party to be subject at all times to first priority, perfected and, in the case of real property (whether leased or owned), title insured Liens in favor of the Administrative Agent to secure the Obligations pursuant to the Collateral Documents or, with respect to any such property acquired subsequent to the Closing Date, such other additional security documents as the Administrative Agent shall request (subject to Permitted Liens) and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may request including filings and deliveries necessary to perfect such Liens, Organization Documents, resolutions, Real Property Security Documents, landlord’s waivers and favorable opinions of counsel to such Person, all in form, content and scope reasonably satisfactory to the Administrative Agent.
.
7.15
Post-Closing Obligations
..
Deliver to the Administrative Agent, not later than ninety (90) days after the Closing Date (or such longer period as may be approved by the Administrative Agent in its sole discretion), each of the Real Property Security Documents and bailee waivers described on
Schedule 7.15
, in each case in form and substance satisfactory to the Administrative Agent.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:
8.01
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:
(a)
Liens pursuant to any Loan Document;
(b)
Liens existing on the date hereof and listed on
Schedule 8.01
and any renewals or extensions thereof,
provided
that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 8.03(b)
;
(c)
Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business,
provided
that such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;
(e)
pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f)
deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g)
easements, rights-of-way, restrictions and other similar encumbrances 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;
(h)
Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under
Section 9.01(h)
;
(i)
Liens securing Indebtedness permitted under
Section 8.03(e)
;
provided
that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost (negotiated on an arm’s length basis) of the property being acquired on the date of acquisition and (iii) such Liens attach to such property concurrently with or within ninety (90) days after the acquisition thereof;
(j)
leases or subleases granted to others not interfering in any material respect with the business of any Loan Party or any of its Subsidiaries;
(k)
any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(l)
normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(m)
Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection;
(n)
Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;
(o)
Liens on assets of Foreign Subsidiaries created or deemed to exist in connection with any Securitization Transaction permitted under
Section 8.03(f)
, but only to the extent that any such Lien relates to the applicable assets of Foreign Subsidiaries actually sold, contributed or otherwise conveyed pursuant to such Securitization Transaction;
(p)
Liens securing Indebtedness permitted by
Section 8.03(i)
, so long as such Liens (i) only attach to the insurance policies being financed, including any return premiums, dividend payments and loss payments that reduce unearned premiums and (ii) are expressly subject to the Administrative Agent’s rights as a loss payee and mortgagee in such insurance policies;
(q)
any Lien existing on fixed assets at the time of their acquisition by a Loan Party or existing on fixed assets of any Person at the time such Person is acquired by a Loan Party, in each case pursuant to a Permitted Acquisition, so long as (i) any such Lien only secures Indebtedness permitted by
Section 8.03(j)
, (ii) any such Lien was not created at the time of or in contemplation of such Acquisition and (iii) such Lien is released within one hundred and eighty (180) days of such Acquisition (unless (x) the Borrower shall have obtained the prior written consent of the Administrative Agent and the Required Lenders or (y) such Lien at such time would be permitted under another clause of this
Section 8.01
);
(r)
Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered pursuant to
Section 2.14(a)
;
(s)
Liens in favor of the PBGC securing Indebtedness permitted by
Section 8.03(l)
;
provided
,
that
, such Liens are subordinated to the Liens created pursuant to the Loan Documents on terms and conditions satisfactory to the Administrative Agent; and
(t)
other Liens securing Indebtedness or other obligations in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding.
.
.
8.02
Investments..
Make any Investments, except:
(a)
Investments held by the Borrower or such Subsidiary in the form of cash or Cash Equivalents;
(b)
Investments existing as of the Closing Date and set forth in
Schedule 8.02
;
(c)
Investments in any Person that is a Loan Party prior to giving effect to such Investment;
(d)
Investments by any Subsidiary of the Borrower that is not a Loan Party in any other Subsidiary of the Borrower that is not a Loan Party;
(e)
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 to the extent reasonably necessary in order to prevent or limit loss;
(f)
Guarantees permitted by
Section 8.03
;
(g)
Investments made with the portion, if any, of the Cumulative Credit on the date that the Borrower elects to apply all or a portion thereof to this
Section 8.02(g)
, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected
to be so applied;
provided
that (x) immediately before and immediately after giving Pro Forma Effect to any such Investment, no Default or Event of Default shall have occurred and be continuing and (y) such amount is Not Otherwise Applied;
(h)
promissory notes and other non-cash consideration received in connection with Dispositions permitted by
Section 8.05
;
(i)
Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or upon foreclosure or other transfer of title with respect to any secured investment, loan or advance permitted hereunder, in each case in the ordinary course of business; and
(j)
Permitted Acquisitions.
.
8.03
Indebtedness..
Create, incur, assume or suffer to exist any Indebtedness, except:
(a)
Indebtedness under the Loan Documents;
(b)
Indebtedness of the Borrower and its Subsidiaries set forth in
Schedule 8.03
;
(c)
intercompany Indebtedness permitted under
Section 8.02
;
(d)
obligations (contingent or otherwise) of the Borrower or any Subsidiary 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 associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, 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;
(e)
purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to
finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $30,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing;
(f)
non-recourse Indebtedness and obligations of Foreign Subsidiaries in connection with Securitization Transactions;
provided
that the outstanding principal amount for all such Securitization Transactions entered into by Foreign Subsidiaries shall not exceed $30,000,000 in the aggregate at any one time outstanding;
(g)
Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any one time outstanding for all such Persons taken together not to exceed $25,000,000;
(h)
Guarantees with respect to Indebtedness of any Loan Party permitted under this
Section 8.03
;
provided
that
if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guaranty on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(i)
Indebtedness consisting of the financing of insurance premiums (with an insurance premium financing company) in the ordinary course of business;
(j)
Indebtedness of any Loan Party that was initially Indebtedness of a target entity that was acquired pursuant to a Permitted Acquisition so long as (i) such Indebtedness was not incurred in contemplation of an Acquisition, (ii) the aggregate outstanding principal amount of all such Indebtedness shall not exceed $25,000,000 at any one time outstanding and (iii) the aggregate outstanding principal amount of all such Indebtedness that is secured shall not exceed $10,000,000 at any one time outstanding;
(k)
Mexican Pesos Obligations;
(l)
Indebtedness of the Borrower and its Subsidiaries owing to the PBGC, in an aggregate amount at any one time outstanding for all such Persons taken together not to exceed $10,000,000; and
(m)
other unsecured Indebtedness of the Borrower and its Subsidiaries in an aggregate principal amount at any one time outstanding for all such Persons taken together not to exceed $20,000,000.
8.04
Fundamental Changes..
Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person;
provided
that, notwithstanding the foregoing provisions of this
Section 8.04
but subject to the terms of
Sections 7.12
and
7.14
, (a) the Borrower may merge or consolidate with any of its Subsidiaries provided that the Borrower shall be the continuing or surviving corporation, (b) any Loan Party other than the Borrower may merge or consolidate with any other Loan Party other than the Borrower, (c) any Subsidiary that is not a Loan Party may be merged or consolidated with or into any Loan Party provided that such Loan Party shall be the continuing or surviving corporation, (d) any Subsidiary that is not a Loan Party may be merged or consolidated with or into any other Subsidiary that is not a Loan Party and (e) any Subsidiary that is not a Loan Party may be dissolved or liquidated so long as (i) such dissolution or liquidation, as applicable, could not reasonably be expected to have a Material Adverse Effect and (ii) the residual assets of such Subsidiary shall be transferred to a Loan Party.
8.05
Dispositions..
Make any Disposition unless (a) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with consummation of the transaction and shall be in an amount not less than the fair market value (as reasonably determined by the Borrower or the applicable Loan Party in good faith) of the property disposed of, (b) if such transaction is a Sale and Leaseback Transaction, such transaction is not prohibited by the terms of
Section 8.15
, (c) such transaction does not involve the sale or other disposition of a minority equity interest in any Subsidiary, (d) no Default or Event of Default has occurred and is continuing both immediately prior to and after giving effect to such Disposition, (e) such transaction does not involve a sale or other disposition of receivables other than receivables owned by or attributable to other property concurrently being disposed of in a transaction otherwise permitted under this
Section 8.05
, and (f) the aggregate net book value of all of the assets sold or otherwise disposed of by the Borrower and its Subsidiaries in all such transactions occurring during the term of this Agreement shall not exceed $5,000,000.
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:
(e)
each Subsidiary may make Restricted Payments to the Borrower or any Guarantor;
(f)
the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests of such Person; and
(g)
the Borrower may make additional Restricted Payments in an aggregate amount not to exceed an amount (which shall not be less than zero) equal to the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this
Section 8.06(c)
, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
provided
that (x) immediately before and immediately after giving Pro Forma Effect to any such Restricted Payment, no Default shall have occurred and be continuing and (y) such amount is Not Otherwise Applied.
.
8.07
Change in Nature of Business..
Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the Closing Date or any business substantially related or incidental thereto.
8.08
Transactions with Affiliates and Insiders..
Enter into or permit to exist any transaction or series of transactions with any officer, director or Affiliate of such Person other than (a) advances of working capital to any Loan Party, (b) transfers of cash and assets to any Loan Party, (c) intercompany transactions expressly permitted by
Section 8.02
,
Section 8.03
,
Section 8.04
,
Section 8.05
or
Section 8.06
, (d) normal and reasonable compensation and reimbursement of expenses of officers and directors in the ordinary course of business and (e) except as otherwise specifically limited in this Agreement, other transactions which are entered into in the ordinary course of such Person’s business on terms and conditions substantially as favorable to such Person as would be obtainable by it in a comparabl
e arms-length transaction with a Person other than an officer, director or Affiliate.
8.09
Burdensome Agreements..
Enter into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts the ability of any such Person to (i) make Restricted Payments to any Loan Party, (ii) pay any Indebtedness or other obligations owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in clauses (i)‑(v) above) for (1) this Agreement and the other Loan Documents, (2) any document or instrument governing Indebtedness incurred pursuant to
Section 8.03(e)
,
provided
that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith, (3) any Permitted Lien or any document or instrument governing any Permitted Lien,
provided
that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien or (4) customary restrictions and conditions contained in any agreement relating to the sale of any property
permitted under
Section 8.05
pending the consummation of such sale, or (b) requires the grant of any security for any obligation if such property is given as security for the Obligations.
8.10
Use of Proceeds..
Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
8.11
Financial Covenants..
(a)
Consolidated Leverage Ratio
. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than 3
.
00
to 1.0;
provided
,
that
, as of the end of each of the two (2) consecutive fiscal quarters immediately following the consummation of a Material Acquisition, the preceding ratio shall increase to 3.25 to 1.0 (“
Leverage Increase Period
”);
provided
,
further
,
that
, for at least one full fiscal quarter immediately following each Leverage Increase Period, the Consolidated Leverage Ratio as of the end of each such fiscal quarter shall be not greater than 3.00 to 1.0 before the permitted Consolidated Leverage Ratio may again increase to 3.25 to 1.0 pursuant to the immediately preceding proviso.
(b)
Consolidated Interest Coverage Ratio
. Permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 4.00 to 1.0.
.
8.12
Prepayment of Other Indebtedness, Etc..
Make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or redemption or acquisition for value of (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Indebtedness of any Loan Party or any Subsidiary (other than (x) Indebtedness arising under the Loan Documents and (y) Indebtedness permitted by
Section 8.03(e)
(so long as immediately after such transaction the underlying asset becomes subject to a first priority Lien in favor of the Administrative Agent pursuant to the terms of the Collateral Documents)).
8.13
Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity..
(a)
Amend, modify or change its Organization Documents in a manner adverse to the Lenders.
(b)
Change its fiscal year.
(c)
Without providing ten (10) days prior written notice to the Administrative Agent, change its name, state of formation or form of organization.
.
8.14
Ownership of Subsidiaries..
Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person (other than any Loan Party or any Wholly Owned Subsidiary of the Borrower) to own any Equity Interests of any Subsidiary of any Loan Party, except to qualify directors where required by applicable law or to satisfy other requirements of applicable law with respect to the ownership of Equity Interests of Foreign Subsidiaries, (b) permit any Loan Party or any Subsidiary of any Loan Party to issue or have outstanding any shares of preferred Equity Interests or (c) create, incur, assume or suffer to exist any Lien on any Equity Interests of any Subsidiary of any Loan Party, except for Permitted Liens.
8.15
Sale Leasebacks..
Enter into any Sale and Leaseback Transaction.
8.16
Sanctions..
Directly or indirectly, use the proceeds or any Loan, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities or business with any individual or entity, or in any Designated Jurisdiction that, at the time of such funding, is the subject of any Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Lead Arranger, Administrative Agent, L/C Issuer, Swing Line Lender or otherwise) of Sanctions.
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
. The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within three (3) Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five (5) Business Days after the same becomes due, 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 in any of
Section 7.01
,
7.02
,
7.03
,
7.05
,
7.10
,
7.11
,
7.12
or
7.14
or
Article VIII
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 thirty (30) days; or
(d)
Representations and Warranties
. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party 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; or
(e)
Cross-Default
. (i) Any Loan Party or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of 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, 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, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) 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 the Borrower 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 the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f)
Insolvency Proceedings, Etc.
Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or
(g)
Inability to Pay Debts; Attachment
. (i) Any Loan Party or any of its Subsidiaries becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
(h)
Judgments
. There is entered against any Loan Party or any Subsidiary (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 independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of ten (10) 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 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) the Borrower 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, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party 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
(k)
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 shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(k)
declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(l)
declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts 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 Borrower;
(m)
require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(n)
exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;
provided
,
however
, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C 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 Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
9.03
Application of Funds..
After the exercise of remedies provided for in
Section 9.02
(or after the Loans have automatically become immediately due and payable and the L/C 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 be applied by the Administrative Agent in the following order:
First
, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under
Article III
) payable to the Administrative Agent in its capacity as such;
Second
, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer) arising under the Loan Documents and amounts payable under
Article III
, ratably among them in proportion to the respective amounts described in this clause
Second
payable to them;
Third
, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic payments, and any interest accrued thereon, due under any Secured Swap Agreement, ratably among the Lenders, the Swap Banks and the L/C Issuer in proportion to the respective amounts described in this clause
Third
held by them;
Fourth
, to (a) payment of that portion of the Obligations constituting accrued and unpaid principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and any interest accrued thereon, due under any Secured Swap Agreement, (c) payments of amounts due under any Secured Treasury Management Agreement or any Mexican Pesos Agreement and (d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among the Lenders, Swap Banks, Treasury Management Banks and the L/C Issuer in proportion to the respective amounts described in this clause
Fourth
held by them; and
Last
, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to
Sections 2.03(c)
and
2.14
, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause
Fourth
above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or such Guarantor’s assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.
Notwithstanding the foregoing, Obligations arising under Secured Treasury Management Agreements and Secured Swap Agreements shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Treasury Management Bank or Swap Bank, as the case may be. Each Treasury Management Bank or Swap Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of
Article X
for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE X
ADMINISTRATIVE AGENT
10.01
Appointment and Authority..
(o)
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America 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 incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
(p)
The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable),
potential Swap Banks and potential Treasury Management Banks) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 10.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this
Article X
and
Article XI
(including
Section 11.04(c)
, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
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 deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party 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, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(q)
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(r)
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, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may affect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(s)
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.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) 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
) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or the L/C 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 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 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, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C 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 Loan Parties), 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 Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
10.06
Resignation of Administrative Agent..
(t)
The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, 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 appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “
Resignation Effective Date
”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(u)
If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable Law by notice in writing to the Borrower and such Person remove such Person as the Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “
Removal Effective Date
”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(v)
With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed 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 security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, 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 L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in
Section 3.01(g)
and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed 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 Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal 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 or removed 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 Administrative Agent.
Any resignation by or removal of Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation or removal as L/C Issuer and Swing Line Lender. If Bank of America
resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C 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 Bank of America 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 by the Borrower of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable (b) the retiring L/C 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 L/C 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 Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
10.07
Non-Reliance on Administrative Agent and Other Lenders..
Each Lender and the L/C 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 L/C 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, documentation agents or co-agents shall have any 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 or the L/C Issuer hereunder.
10.09
Administrative Agent May File Proofs of Claim..
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C 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:
(w)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than obligations under Swap Contracts, Treasury Management Agreements or Mexican Pesos Agreements to which the Administrative Agent is not a party) 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 L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(h)
and
(i)
,
2.09
and
11.04
) allowed in such judicial proceeding; and
(x)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C 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 L/C 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
11.04
.
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 L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
10.10
Collateral and Guaranty Matters..
Each Lender (including in its capacities as a potential Treasury Management Bank and a potential Swap Bank) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,
(y)
to release any Lien on any Collateral granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Revolving Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other Disposition permitted hereunder or under any other Loan Document or any Involuntary Disposition, or (iii) as approved in accordance with
Section 11.01
;
(z)
to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by
Section 8.01(i)
;
(aa)
to execute and deliver one or more lien priority agreements in connection with the Borrower’s or a Subsidiary’s participation in a customer’s supplier financing program permitted hereunder; and
(ab)
to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.
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 Guarantor from its obligations under the Guaranty, pursuant to this
Section 10.10
.
The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral,
the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
10.11
Treasury Management Banks and Swap Banks..
No
Treasury Management Bank or Swap Bank that obtains the benefit of
Section 9.03
, the Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender 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, Obligations arising under Secured Treasury Management Agreements, Secured Swap Agreements and Mexican Pesos Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Obligations (or, with respect to Mexican Pesos Obligations, copies of all Mexican Pesos Agreements with respect thereto), together with such supporting documentation as the Administrative Agent may request, from the applicable Lender, Treasury Management Bank or Swap Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Treasury Management Agreements, Secured Swap Agreements and Mexican Pesos Obligations.
ARTICLE XI
MISCELLANEOUS
11.01
Amendments, Etc..
No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, 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
,
further
, that
(ac)
no such amendment, waiver or consent shall:
(i)
extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to
Section 9.02
) without the written consent of such Lender whose Commitment is being extended or increased (it being understood and agreed that a waiver of any condition precedent set forth in
Section 5.02
or of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
(ii)
postpone any date fixed by this Agreement or any other Loan Document for any payment of principal (excluding mandatory prepayments), interest, fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Commitments hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment or whose Commitments are to be reduced;
(iii)
reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this
Section 11.01
) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment of principal, interest, fees or other amounts;
provided
,
however
, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;
(iv)
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;
(v)
change any provision of this
Section 11.01(a)
or the definition of “Required Lenders” without the written consent of each Lender directly affected thereby;
(vi)
except in connection with a Disposition permitted under
Section 8.05
, release all or substantially all of the Collateral without the written consent of each Lender directly affected thereby;
(vii)
release the Borrower or, except in connection with a merger or consolidation permitted under
Section 8.04
or a Disposition permitted under
Section 8.05
, all or substantially all of the Guarantors without the written consent of each Lender directly affected thereby, except to the extent the release of any Guarantor is permitted pursuant to
Section 10.10
(in which case such release may be made by the Administrative Agent acting alone); or
(viii)
amend
Section 1.08
or the definition of “Alternative Currency” without the written consent of each Lender;
(ad)
unless also signed by the L/C Issuer, no amendment, waiver or consent shall affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it;
(ae)
unless also signed by the Swing Line Lender, no amendment, waiver or consent shall affect the rights or duties of the Swing Line Lender under this Agreement; and
(af)
unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
provided
,
however
, that notwithstanding anything to the contrary herein, (i) the Fee Letter and any Auto Borrow Agreement may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii) 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 (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender, (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (iv) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders.
(ag)
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower and the other Loan Parties (i) to add one or more additional credit facilities to this Agreement, to
permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (ii) to change, modify or alter
Section 2.13
or
Section 9.03
or any other provision hereof relating to the pro rata sharing of payments among the Lenders to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in clause (e)(i) and/or clause (f) below.
(ah)
Notwithstanding anything to the contrary contained herein, in order to implement any additional Commitments in accordance with
Section 2.02(f)
, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with
Section 2.02(f)
) by the Borrower, the other Loan Parties, the Administrative Agent and the relevant Lenders providing such additional Commitments.
(g)
Notwithstanding anything to the contrary herein, if following the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an inconsistency, obvious error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Loan Parties shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within ten (10) Business Days following receipt of notice thereof.
11.02
Notices and Other Communications; Facsimile Copies..
(ai)
Notices Generally
. Except in the case of notices and other communications expressly permitted to be given by telephone (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 facsimile 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 the Borrower or any other Loan Party, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, e-mail address or telephone number specified for such Person on
Schedule 11.02
; and
(ii)
if to any other Lender, to the address, facsimile number, e-mail address or telephone number specified in its Administrative Questionnaire (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 Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile or e-mail transmission 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 and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(aj)
Electronic Communications
. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail address 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 L/C Issuer pursuant to
Article II
if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent
that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, the Swing Line Lender, the L/C Issuer or the Borrower may each, 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), 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;
provided
that
, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(ak)
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 the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or any other Information through the Internet or any telecommunications, electronic or other information transmission systems.
(al)
Change of Address, Etc
. Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number or e-mail address for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C 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, facsimile number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.
(am)
Reliance by Administrative Agent, L/C Issuer and Lenders
.
The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly given by or on behalf of any Loan Party 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 Loan Parties shall indemnify the Administrative Agent, the L/C 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 a Loan Party;
provided
that such indemnity shall not, as to any such Person, 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 Person, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. 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; Enforcement..
No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document 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, and provided under each other Loan Document, 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 Loan Parties or any of them 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 10.01
for the benefit of all the Lenders and the L/C Issuer;
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 L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) 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 2.13
), 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 Loan Party under any Debtor Relief Law; 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 10.01
and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13
, 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; and Damage Waiver..
(an)
Costs and Expenses
. The Loan Parties shall pay (i) all reasonable out‑of‑pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out‑of‑pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out‑of‑pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out‑of‑pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(ao)
Indemnification by the Loan Parties
. The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “
Indemnitee
”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower 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 or 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, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C 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 a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of its Subsidiaries, or (iv) 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 Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee;
provided
that such indemnity shall not, 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, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Without limiting the provisions of
Section 3.01(c)
, this
Section
11.04(b)
shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(ap)
Reimbursement by Lenders
. To the extent that 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 them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing Line Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentages (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought),
provided, further
that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swing Line Lender 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), the L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d)
.
(aq)
Waiver of Consequential Damages, Etc.
To the fullest extent permitted by applicable law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, 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. 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.
(ar)
Payments
. All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor.
(as)
Survival
. The agreements in this Section and the indemnity provisions of
Section 11.02(e)
shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
.
11.05
Payments Set Aside..
To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender 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 the Administrative Agent, the L/C Issuer or such Lender 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 L/C 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 from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
11.06
Successors and Assigns..
(a)
Successors and Assigns Generally
. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder 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 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 (e) 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 Administrative Agent, the L/C Issuer and the Lenders) 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 and the other Loan Documents (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and Swing Line Loans) at the time owing to it);
provided
that any such assignment shall be subject to the following conditions:
(i)
Minimum Amounts
.
(A)
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B)
in any case not described in subsection (b)(i)(A) of this Section, 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 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);
(ii)
Proportionate Amounts
. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s Loans and Commitments, and rights and obligations with respect thereto assigned, except that this clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations in
respect of its Revolving Commitment (and the related Revolving Loans thereunder) on a non-pro rata basis;
(iii)
Required Consents
. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A)
the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided
,
that
, the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
(B)
the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
(C)
the consent of the L/C Issuer and the Swing Line Lender shall be required for any assignment.
(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. 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 Borrower or any of the 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 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, the L/C Issuer 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.
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 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; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. 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 subsection (d) of this Section.
(c)
Register
. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “
Register
”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall 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. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d)
Participations
. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Borrower or any of the Borrower’s 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 Commitment and/or the Loans (including such Lender’s participations in L/C 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 Borrower, the Administrative Agent, the other Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under
Section 11.04(c)
without regard to the existence of any participation.
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 clauses (i) through (vii) of
Section 11.01(a)
that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01
,
3.04
and
3.05
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood
that the documentation required under
Section 3.01(e)
shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of
Sections 3.06
and
11.13
as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under
Sections 3.01
or
3.04
, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of
Section 3.06
with respect to any Participant. 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
as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “
Participant Register
”);
provided
that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)
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.
(f)
Resignation as L/C Issuer or Swing Line Lender after Assignment
. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty (30) days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided
,
however
, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C 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 Bank of America 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 L/C Issuer and/or Swing Line Lender, (1) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (2) the successor L/C 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 Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
11.07
Treatment of Certain Information; Confidentiality..
(g)
Treatment of Confidential Information
. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (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 required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (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 and obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to a Loan Party and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) 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 Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. For purposes of this Section, “
Information
” means all information received from a Loan Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or any Subsidiary,
provided
that, in the case of information received from a Loan Party or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as 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.
(h)
Non-Public Information
. Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrower 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 United States Federal and state securities Laws.
11.08
Set-off..
If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, 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 L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender or the L/C Issuer different from the branch office or Affiliate holding such deposit or obligated on such indebtedness;
provided
,
that
, in the event that any Defaulting Lender 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 2.15
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C 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 L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower 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 Borrower. 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 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, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, 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. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
.
11.11
Survival of Representations and Warranties..
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 Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender 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 Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
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 L/C 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 the Borrower is entitled to replace a Lender pursuant to the provisions of
Section 3.06
, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower 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 (other than its existing rights to payments pursuant to
Sections 3.01
and
3.04
) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided
that:
(a)
the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in
Section 11.06(b)
;
(b)
such Lender shall have received payment of an amount equal to one hundred percent (100%) of the outstanding principal of its Loans and L/C 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 (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)
such assignment does not conflict with applicable Laws
;
and
(e)
in the case of any such assignment resulting from a Non-Consenting Lender’s failure to consent to a proposed change, waiver, discharge or termination with respect to any Loan Document, the applicable replacement bank, financial institution or Fund consents to the proposed change, waiver, discharge or termination;
provided
that the failure by such Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C Obligations and Swing Line Loans pursuant to this
Section 11.13
shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment and Assumption.
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 Borrower to require such assignment and delegation cease to apply.
.
Governing Law; Jurisdiction; Etc.11.14
Governing Law; Jurisdiction; Etc..
(a)
GOVERNING LAW
. This Agreement and the other Loan Documents (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of NEW yORK.
(b)
SUBMISSION TO JURISDICTION
. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY OTHER FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK 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 AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)
WAIVER OF VENUE
. THE BORROWER AND EACH OTHER LOAN 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.
(d)
SERVICE OF PROCESS
. 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 Right to Trial by Jury..
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 “execute,” “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, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, 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..
Each Lender
that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “
Act
”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
11.18
No Advisory or Fiduciary Relationship..
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), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Joint Lead Arrangers, and the Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Joint Lead Arrangers and the Lenders on the other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent, each Joint Lead Arranger and each Lender 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 the Borrower or any of Affiliates or any other Person and (ii) neither the Administrative Agent, nor any Joint Lead Arranger or Lender has any obligation to the Borrower 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; and (c) the Administrative Agent, the Joint Lead Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent, nor any Joint Lead Arranger or Lender has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases, any claims that it may have against the Administrative Agent, any Joint Lead Arranger or any Lender 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
Judgment Currency..
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Loan Party in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “
Judgment Currency
”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “
Agreement Currency
”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally
due to the Administrative Agent or any Lender from such Loan Party in the Agreement Currency, the Loan Parties agree, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to such Loan Party (or to any other Person who may be entitled thereto under applicable law).
[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:
|
SHILOH INDUSTRIES, INC.,
|
a Delaware corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Vice President Finance and Treasurer
|
GUARANTORS:
SHILOH CORPORATION,
an Ohio corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
GREENFIELD DIE & MANUFACTURING CORP.,
a Michigan corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
JEFFERSON BLANKING INC.,
an Georgia corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
SHILOH AUTOMOTIVE, INC.,
an Ohio corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
SHILOH INDUSTRIES, INC. DICKSON
MANUFACTURING DIVISION,
a Tennessee corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
LIVERPOOL COIL PROCESSING, INCORPORATED,
an Ohio corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
MEDINA BLANKING, INC.,
an Ohio corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
THE SECTIONAL DIE COMPANY,
an Ohio corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
SECTIONAL STAMPING, INC.,
an Ohio corporation
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
SHILOH DIE CAST LLC,
an Ohio limited liability company
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
ALBANY-CHICAGO COMPANY LLC,
a Wisconsin limited liability company
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
SHILOH DIE CAST MIDWEST LLC,
an Ohio limited liability company
|
|
|
|
|
|
By:
|
/s/ Thomas. M. Dugan
|
|
Name:
|
Thomas M. Dugan
|
|
Title:
|
Treasurer
|
ADMINISTRATIVE
|
|
|
|
AGENT:
|
bank of america, n.a.,
|
as Administrative Agent
|
|
|
|
|
|
By:
|
/s/ Rosanne Parsill
|
|
Name:
|
Rosanne Parsill
|
|
Title:
|
Vice President
|
|
|
|
|
LENDERS:
|
bank of america, n.a.,
|
as a Lender, Swing Line Lender and L/C Issuer
|
|
|
|
|
|
By:
|
/s/ Matthew Buzzelli
|
|
Name:
|
Matthew Buzzelli
|
|
Title:
|
Senior Vice President
|
JPMORGAN CHASE BANK N.A.
as a lender
|
|
|
|
|
|
By:
|
/s/ Jessalynn Nagy
|
|
Name:
|
Jessalynn Nagy
|
|
Title:
|
Authorized Agent
|
RBS Citizens
, N.A.
as a lender
|
|
|
|
|
|
By:
|
/s/ Nicoleta Bortan
|
|
Name:
|
Nicoleta Bortan
|
|
Title:
|
Authorized Agent
|
The Privatebank and Trust Company
as a lender
|
|
|
|
|
|
By:
|
/s/ Tricia L. Balser
|
|
Name:
|
Tricia L. Balser
|
|
Title:
|
Managing Director
|
Associated Bank, N.A.
as a lender
|
|
|
|
|
|
By:
|
/s/ Viktor Gottlieb
|
|
Name:
|
Viktor Gottlieb
|
|
Title:
|
Vice President
|
Compass Bank, N.A.
as a lender
|
|
|
|
|
|
By:
|
/s/ John Stacy
|
|
Name:
|
John Stacy
|
|
Title:
|
Senior Vice President
|
The Huntington National Bank
as a lender
|
|
|
|
|
|
By:
|
/s/ Brian H. Gallagher
|
|
Name:
|
Brian H. Gallagher
|
|
Title:
|
Senior Vice President
|
Firstmerit Bank, N.A.
as a lender
|
|
|
|
|
|
By:
|
/s/ Robert G. Morlan
|
|
Name:
|
Robert G. Morlan
|
|
Title:
|
Senior Vice President
|