false000183617600018361762024-04-012024-04-01
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 2, 2024 (April 1, 2024)
FATHOM DIGITAL MANUFACTURING CORPORATION
(Exact name of registrant as specified in its charter)
|
|
|
|
|
|
|
|
|
|
Delaware |
|
001-39994 |
|
40-0023833 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
1050 Walnut Ridge Drive
Hartland, WI 53029
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (262) 367-8254
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|
|
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☒ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
|
|
|
|
|
|
|
|
|
|
Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange
on which registered |
Class A common stock, par value $0.0001 per share |
|
FATH |
|
NYSE |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
er next two years Expanded mid-volume production of existing program $1.7 million in 2021; expect $4-$8 million in 2022 orders Prototype with mid-volume production follow-on $4.5 million over three-month period New cross-sell of sheet metal low-volume production $450k in 2021; expect over $1.5 million in 2022 orders Prototype & low-volume production Global healthcare company Global semiconductor company Disruptive electric vehicle manufacturer Global leader in mobile robotics 1 2 3 4 5 6 Global leader in gas measurement instruments and technologies Leading subsea technology company $550K production order Expansion to higher volume production of existing program New Strategic Accounts Existing Strategic Accounts
Statement (preliminary unaudited) Repor
|
|
Item 1.01. |
Entry into a Material Definitive Agreement. |
Unsecured Promissory Note and Guarantee Agreement
On April 1, 2024, Fathom Manufacturing, LLC (the “Borrower”), an indirect wholly-owned subsidiary of Fathom Digital Manufacturing Corporation (the “Company”), entered into an Unsecured Promissory Note (the “Promissory Note”) in favor of CORE Industrial Partners Fund I, L.P. (the “Lender”), on behalf of CORE Industrial Partners Fund I, L.P. (“Main Fund”) and CORE Industrial Partners Fund I Parallel, L.P. (“Parallel Fund” and collectively with the Main Fund and the Lender, the “Lending Parties” and each, a “Lending Party”). Pursuant to the Promissory Note, the Borrower may incur, and the Lending Parties have collectively committed to provide, on an unsecured basis, up to $2.5 million of term loans that will mature on September 30, 2024 and will accrue interest, payable in kind, at the rate of 5% per annum. Term loans made under the Promissory Note are expected to be used for working capital purposes. The Borrower may prepay the Term Loans from time to time without any premium or penalty. The Lender is affiliated with CORE Industrial Partners, LLC. Affiliates of CORE Industrial Partners, LLC collectively hold approximately 63% of the voting power of the Company’s outstanding capital stock.
Concurrent with the execution of the Promissory Note, certain indirect wholly-owned subsidiaries of the Company (including the Borrower) (collectively, the “Guarantors” and each, a “Guarantor”) entered into a Guarantee Agreement dated as of April 1, 2024 (the “Guarantee Agreement”) pursuant to which the Guarantors have agreed to guarantee, on an unsecured basis, in full the payment and performance of the obligations of the Borrower under the Promissory Note.
Consistent with the Company’s Related Person Policy and Procedures, the foregoing transactions were approved by the Audit Committee of the Board of Directors of the Company. Additionally, the foregoing transactions were approved by the Special Committee established in connection with the Company’s previously announced and pending merger transaction involving affiliates of CORE Industrial Partners, LLC (the “Merger”).
The foregoing descriptions of the Promissory Note and the Guarantee Agreement do not purport to be complete and are subject to, and qualified in their entirety by, the full texts of the Promissory Note and the Guarantee Agreement, respectively, copies of which are attached hereto as Exhibits 10.1 and 10.2, respectively, and incorporated herein by reference.
|
|
Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The disclosure set forth above in Item 1.01 of this Current Report is incorporated herein by reference.
Important Information For Investors And Stockholders
Important Information and Where to Find It
The proposed Merger will be submitted to the stockholders of the Company for their consideration. In connection with the proposed Merger, the Company has filed with the Securities and Exchange Commission (“SEC”) a preliminary proxy statement with respect to a special meeting of the Company’s stockholders to approve the proposed Merger. The definitive proxy statement will be mailed to the Company’s stockholders when available. The Company and certain affiliates of CORE Industrial Partners, LLC have also jointly filed a transaction statement on Schedule 13E-3 (the “Schedule 13E-3”). STOCKHOLDERS OF THE COMPANY ARE URGED TO READ THE PROXY STATEMENT, THE SCHEDULE 13E-3 AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY AND THE PROPOSED MERGER. Investors and stockholders will be able to obtain free copies of the proxy statement, the Schedule 13E-3 and other documents containing important information about the proposed Merger through the website maintained by the SEC at http://www.sec.gov. Copies of the documents filed with the SEC by the Company are available free of charge on the Company’s website at https://investors.fathommfg.com/overview/default.aspx or by emailing investors@fathommfg.com.
Certain Information Regarding Participants
The Company and certain of its directors, executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed Merger. Information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, in the proposed Merger are contained in the proxy statement for the special meeting and other relevant materials filed with the SEC. These documents can be obtained free of charge from the sources indicated above.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
|
|
|
|
Exhibit
Number |
|
Description |
|
|
|
|
10.1 |
|
Unsecured Promissory Note, dated as of April 1, 2024, by and among Fathom Manufacturing, LLC, CORE Industrial Partners Fund I, L.P and CORE Industrial Partners Fund I Parallel, L.P. |
|
10.2 |
|
Guarantee Agreement, dated as of April 1, 2024, by and among certain indirect wholly-owned subsidiaries of Fathom Digital Manufacturing Corporation and CORE Industrial Partners Fund I, L.P. |
|
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
|
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
FATHOM DIGITAL MANUFACTURING CORPORATION |
|
|
By: |
|
/s/ Mark Frost |
Name: |
|
Mark Frost |
Title: |
|
Chief Financial Officer |
Date: April 2, 2024
UNSECURED PROMISSORY NOTE
$2,500,000.00 April 1, 2024
For value received, Fathom Manufacturing, LLC, a Delaware limited liability company (the “Borrower”), promises to pay to CORE Industrial Partners Fund I, L.P. (the “Lender”) on behalf of CORE Industrial Partners Fund I, L.P., a Delaware limited partnership (“Main Fund”) and CORE Industrial Partners Fund I Parallel, L.P., a Delaware limited partnership (“Parallel Fund” and together with the Main Fund, collectively, the “Lending Parties” and each, a “Lending Party”), on the Maturity Date (as defined herein), the amount of, and to pay interest on, the principal sum outstanding from time to time, as such amount may be increased by PIK Interest (as defined herein) (the “Outstanding Principal Amount”) under this unsecured promissory note, dated as of the Closing Date (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Note”) at the rates set forth in this Note.
The Lending Parties have agreed to make the Term Loan (as defined herein) available to the Borrower in consideration of the Borrower’s covenants and performance hereunder and the guarantee of the Borrower’s payment and performance hereunder by the Guarantors (as defined herein). The Note Parties (as defined herein) will derive substantial direct and indirect benefits from the Term Loan to the Borrower pursuant to this Note and are willing to have Borrower execute and deliver this Note in order to induce the Lending Parties to make the Term Loan.
1.The Term Loan Borrowing.
(a)Subject to the term and conditions set forth herein, the Lending Parties with a Term Loan Commitment (as defined herein) agree to make a term loan (the “Term Loan”) under this Note to the Borrower, on the Closing Date, in an aggregate amount not to exceed the amount of the Term Loan Commitments. Upon the funding of the Term Loans by each Lending Party on the Closing Date, the Term Loan Commitments shall immediately and automatically be terminated. Each Lending Party is entering into this Note and making the Term Loan hereunder for the benefit of the Borrower and its Subsidiaries and, for the avoidance of doubt, the Borrower may, subject to the notice requirements of this Section 1, repay, refinance or replace this Note and the outstanding Term Loan hereunder, in each case, without premium or penalty.
(b)The Borrowing shall be made in United States dollars following the Borrower’s irrevocable written notice to the Lender, which notice must be received by the Lender not later than 3:00 p.m. (New York City time) one (1) Business Day prior to Closing Date. Each such notice shall be signed by the chief executive officer, chief financial officer or treasurer of the Borrower and shall specify (i) the requested date of the Borrowing (which shall be a Business Day), (ii) the principal amount of Term Loan to be borrowed and (iii) the account of the Borrower to be credited with the proceeds of such Borrowing.
2.Interest. Interest on the unpaid Outstanding Principal Amount will accrue at the rate of 5.0% per annum. Interest will be due and payable in arrears on a quarterly basis on the last Business Day of each March, June, September and December of each year during the term of this Note beginning on June 30, 2024 (each an “Interest Payment Date”). With respect to interest due and payable on each Interest Payment Date, such interest shall be payable in kind by increasing the Outstanding Principal Amount of this Note by the amount of interest due on such date (the “PIK Interest”). Following an increase in the Outstanding Principal Amount of the Note as a result of payment of PIK Interest, interest on the unpaid Outstanding Principal Amount will accrue from and after the date of payment of such PIK Interest. All accrued and unpaid interest shall be due and payable on the Maturity Date. Upon the occurrence and during the continuance of an Event of Default (as defined herein), the Note Parties shall pay interest on the
principal amount of all overdue Obligations hereunder at an interest rate equal to the interest rate otherwise in effect hereunder plus 2.0% per annum. Accrued and unpaid interest on past due amounts (including, without limitation, interest on past due interest) shall be due and payable in cash upon written demand.
3.Payments of Principal and Interest. Borrower shall pay interest on, and repay the principal amount of, this Note as follows:
(a)Prepayments. Provided the Borrower shall have given written notice to the Lender and subject to the remaining provisions of this Section 3, the Borrower shall have the right to, and in the Borrower’s sole discretion may, voluntarily prepay any principal amount hereunder, in whole or in part, in a minimum amount of $250,000 (or the remaining unpaid principal, if less), not earlier than one (1) Business Day after such written notice to the Lender (such payment to be received prior to 3:00 p.m. (central standard time)) (or such shorter time period as consented to by the Lender) with accrued interest to the date of such prepayment on the amount to be prepaid. Any payments so made shall be without premium or penalty and shall be applied first to accrued but unpaid interest (including, without limitation, all interest accrued due to the occurrence of an Event of Default), second, to the payment of PIK Interest hereunder until all such PIK Interest is paid and third, to outstanding principal.
(b)Maturity Date. Borrower shall pay the entire remaining outstanding principal amount of this Note, together with all accrued and unpaid interest thereon (including, without limitation, all interest accrued due to the occurrence of an Event of Default), on September 30, 2024 (the “Maturity Date”).
(c)Method of Payment. Any payment to be made hereunder shall be made by wire transfer of immediately available funds to an account designated by the Lender.
4.Representations and Warranties. The Borrower represents and warrants to the Lending Parties at the time of each borrowing of funds pursuant to this Note that:
(a)Organization; Powers. Each Note Party (i) is duly organized, validly existing and (if applicable) in good standing under the laws of the jurisdiction of its organization except for such failures to be in good standing which could not reasonably be expected to have a Material Adverse Effect, (ii) has all requisite power and authority to own its property and assets and to carry on its business as now conducted, (iii) is qualified to do business in each jurisdiction where such qualification is required, except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect, and (iv) has the power and authority to execute, deliver and perform its obligations under each of the Note Documents and each other agreement or instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower, to borrow and otherwise obtain credit hereunder.
(b)Authorization. The execution, delivery and performance by each Note Party of each of the Note Documents to which it is a party, and the borrowings hereunder and the Transactions (i) have been duly authorized by all corporate, stockholder, limited liability company or partnership action required to be obtained by each Note Party and (ii) will not (A) violate (I) any provision of (x) law, statute, rule or regulation or (y) the certificate or articles of incorporation or other constitutive documents or by-laws of each Note Party, (II) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (III) any provision of any indenture, lease, agreement or other instrument to which Holdings, the Borrower or any such Subsidiary is a party or by which any of them or any of their respective property is or may be bound, (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, lease, agreement or other instrument, where any such conflict, violation, breach or default
referred to in clause (A) (other than subclause (I)(y) thereof) or (ii) of this Section 4, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c)Enforceability. This Note has been duly executed and delivered by the Borrower and constitutes, and each other Note Document when executed and delivered by each Note Party that is party thereto will constitute, a legal, valid and binding obligation of such Note Party enforceable against each such Note Party in accordance with its terms, subject to (i) the Debtor Relief Laws, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
(d)Governmental Approvals. No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions except for (i) such consents, authorizations, filings or other actions that have been made or obtained and are in full force and effect, (ii) filings with the Securities and Exchange Commission reporting the Transactions and (iii) such actions, consents and approvals the failure to be obtained or made which could not reasonably be expected to have a Material Adverse Effect.
(e)Investment Company Act. None of the Note Parties is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(f)Solvency. The Note Parties are Solvent (as defined herein). The Borrower does not intend to, and does not believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such subsidiary and the timing and amounts of cash to be payable on or in respect of its indebtedness or the indebtedness of any such Subsidiary.
5.Conditions Precedent to the Issuance of this Note. The obligation of the Lending Parties to provide the Term Loan to the Borrower hereunder on the Closing Date is subject to satisfaction or waiver by the Lender of the following conditions precedent:
(a)Note Documents. The Lender (or its counsel) shall have received from each Note Party a counterpart of the Note, the Guarantee Agreement and/or, as applicable, the other Note Documents signed on behalf of such Note Party.
(b)Resolutions. The Lender (or its counsel) shall have received with respect to each Note Party, resolutions or other action duly adopted by the board of directors (or other governing body) of such Note Party authorizing and approving the Transactions contemplated hereunder and the execution, delivery and performance of the Note and the other Note Documents to which it is a party.
6.Events of Default; Acceleration.
(a)Occurrence. An “Event of Default” shall be deemed to occur if (i) Borrower fails to pay any principal amount or interest hereunder when due, whether at the Maturity Date, by acceleration or otherwise, and such failure has continued for a period of three (3) Business Days, (ii) an “Event of Default” (as such term is used in the Credit Agreement) occurs under the Credit Agreement, (iii) an involuntary proceeding is commenced or an involuntary petition is filed in a court of competent jurisdiction seeking (A) relief in respect of the Borrower or any of the other Note Parties, or of a substantial part of the property or assets of the Borrower or any of the other Note Parties, under Title 11 of the United States Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of the other Note Parties or for a substantial part of the property or assets of the Borrower or any of the other Note Parties or (C) the
winding-up or liquidation of the Borrower or any other Note Party, and such proceeding or petition continues undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing in this clause (iii) is entered; (iv) the Borrower or any other Note Party (A) voluntarily commences any proceeding or files any petition seeking relief under Title 11 of the United States Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (B) consents to the institution of, or fails to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (iii) above, (C) applies for, requests or consents to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of the other Note Parties, or for a substantial part of the property or assets of the Borrower or any other Note Party (D) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) makes a general assignment for the benefit of creditors or (F) becomes unable, admit in writing its inability or fail generally to pay its debts as they become due; (v) any Note Party shall fail to observe or perform when due any covenant, condition or agreement contained in any Note Document, and such failure shall continue unremedied for a period of thirty (30) days (other than any “Event of Default” with a specified time periods in this Section 6(a)) after the earlier of knowledge of such default by any Note Party or notice thereof from the Lender to the Borrower; (vi) any representation or warranty made or deemed made by the Borrower or any other Note Party in any Note Document, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Note Document, shall prove to have been incorrect in any material respect when so made, deemed made or furnished by the Borrower or any other Note Party; and (vii) (A) any Note Document shall for any reason be asserted in writing by any Note Party not to be a legal, valid and binding obligation of any party thereto or (B) the guaranty pursuant to the Guarantee Agreement by any of the Note Parties of any of the Obligations shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by any of the Note Parties not to be in effect or not to be legal, valid and binding obligations.
(b)Rights and Remedies. If an Event of Default has occurred and is continuing, the Lender may declare all or any portion of the outstanding principal amount of this Note to be immediately due and payable and demand the immediate payment of all or any portion of such outstanding principal amount without presentment, demand, protest, notice of acceleration, notice of intent to accelerate or other notice of any kind, all of which are hereby expressly waived to the extent permissible under applicable law by the Note Parties; provided that upon the occurrence of an event described in (x) Section 6(a)(iii) or Section 6(a)(iv) or (y) Section 7.01(h) or Section 7.01(i) of the Credit Agreement with respect to any Note Party, in each case, the unpaid principal amount of the outstanding Term Loan and all interest and other amounts shall automatically become due and payable, in each case without further act of the Lender or any other Lending Party. If the Lender so demands immediate payment of all or any portion of this Note, Borrower immediately shall pay to the Lender the principal amount of this Note requested to be paid plus all accrued interest thereon. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the maturity of the Obligations shall have been accelerated pursuant hereto, the Lender may proceed to protect and enforce its rights and remedies under this Note or any of the other Note Documents by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Note and the other Note Documents or any instrument pursuant to which Obligations are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Lender or any other Lending Party. No remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law.
(a)Waivers. Borrower, or its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Note, and waives and renounces all rights to the benefits of any statute of limitations or any moratorium, appraisement,
exemption or homestead now provided or that may hereafter be provided by any federal or applicable state statute, including, without limitation, exemptions provided by or allowed under the United States Bankruptcy Code, both as to itself and as to all of its property, whether real or personal, against the enforcement and collection of the obligations evidenced by this Note and any and all extensions, renewals and modifications hereof, and expressly agrees that this Note, or any payment hereunder, may be extended from time to time and that the Lender may accept security for this Note or release security for this Note, all without in any way affecting the liability of Borrower hereunder. Borrower agrees that any delay on the part of the Lender in exercising any rights hereunder shall not operate as a waiver of such rights.
(b)Severability. In the event any one or more of the provisions of this Note shall for any reason be held to be invalid, illegal or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Note operate or would prospectively operate to invalidate this Note, then and in any such event, only such provision(s) shall be deemed null and void and shall not affect any other provision of this Note and the remaining provisions of this Note shall remain operative and in full force and effect and in no way shall be affected, prejudiced or disturbed thereby.
(c)Successors and Assigns. This Note shall be freely assignable by any Lending Party in whole or in part, and shall inure to the benefit of such Lending Party’s successors and registered assigns. Borrower’s obligations hereunder shall be binding upon its successors and assigns; provided that no assignment (including, without limitation, by operation of law or otherwise) shall relieve the Borrower from its obligations hereunder, which shall remain the primary obligations of Borrower. Borrower shall maintain at its office a register for the recordation of the name and address of each Lending Party and any of its successors and registered assigns and remaining principal amount of the Note (the “Register”) and a copy of each and any assignment of this Note delivered to it by the Lending Parties. The Lender shall notify Borrower in writing prior to any assignment, transfer or other disposition of this Note (or any portion hereof) by any Lending Party, or of any Lending Party’s rights or interests hereunder, with such written notice to be delivered to Borrower not later than one (1) Business Day prior to any such assignment, transfer or disposition and which notice shall specify the principal amount hereunder that is the subject of such assignment, transfer or disposition. No assignment, transfer or other disposition of this Note (or any portion hereof) shall be effective except as set forth herein. The entries in the Register shall be conclusive absent manifest error, and Borrower may treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lending Party for all purposes of this Note, notwithstanding notice to the contrary. The Register shall be available for inspection by the Lender, at any reasonable time and from time to time upon reasonable notice. This Note is intended to be in “registered form” pursuant to Sections 163(f) and 103 of the Internal Revenue Code of 1986, as amended from time to time. Unless and until notified otherwise by all then registered Lending Parties, all notices hereunder from the Lending Parties to Borrower and actions, including, without limitation, approvals, modifications, waivers and consents, of the Lending Parties hereunder shall be from the Lender alone, and the Borrower may rely on such as the notices and/or actions of all Lending Parties.
(d)Destroyed; Lost Notes. Upon receipt of evidence reasonably satisfactory to Borrower of the mutilation, destruction, loss or theft of this Note, and, in the case of any such mutilation, upon surrender and cancellation of this Note, Borrower shall, upon the written request of the Lender, execute and deliver to the Lender in replacement thereof a new Note in the same form, in the same original principal amount and dated the same date as the Note so mutilated, destroyed, lost or stolen, and such Note so mutilated, destroyed, lost or stolen shall then be deemed no longer outstanding hereunder.
(e)Time of Payment. If any payment is due, or any time period for giving notice or taking action expires, on a day which is not a Business Day, the payment shall be due and payable on, and the time period shall automatically extend to, the next Business Day immediately following, and interest shall continue to accrue at the required rate hereunder until any such payment is made.
(f)Cancellation. After all principal, accrued interest (including, without limitation, all interest accrued due to the occurrence of an Event of Default) and all other amounts at any time owned or unpaid on this Note have been paid in full in cash, this Note shall be surrendered to the Borrower for cancellation.
(g)Counterparts; Electronic Signatures. This Note and each other Note Document may be executed in one or more counterparts (and by different parties hereto in different counterparts), each of which shall be deemed an original, but all of which together shall constitute a single contract. This Note shall become effective when it shall have been executed by the Lender and when the Lender shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Any signature to this Note may be delivered by facsimile, electronic mail (including, without limitation, .pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Note. The Lender may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.
(i)General. Simultaneously with the delivery thereof to the Senior Agent, the Borrower shall deliver to the Lender copies of any notices, financial statements, certificates, instruments or other documentation delivered or otherwise provided to the Administrative Agent under Section 6.04 of the Credit Agreement. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or any other Note Document shall be in writing (including, without limitation, by facsimile transmission). All such written notices shall be delivered by personal delivery or recognized overnight courier service, signature required, or (subject to Section 7(h)(iii)) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: if to the Borrower, or any other Note Party, or the Lender, to the address, electronic mail address or telephone number specified for such person on Schedule 1 or to such other address, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties. All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; and (B) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 7(h)(iii)), when delivered; provided that notices and other communications to the Lender pursuant to Section 1 shall not be effective until actually received by such person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder. Notices and other communications delivered through electronic communications to the extent provided in subsection (ii) below, shall be effective as provided in such subsection (ii).
(ii)Electronic Communications. The Lender 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 Lender otherwise prescribes, notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended
recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that, if such notice, 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.
(iii)Effectiveness of Facsimile Documents and Signatures. Note Documents may be transmitted and/or signed by facsimile or other electronic transmission (e.g., portable document format (“pdf”)). The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as manually signed originals and shall be binding on all Note Parties and the Lender and the Lending Parties. The Lender may also require that any such document and signatures be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.
(iv)Change of Address, Etc. The Borrower and the Lender may change its address or telephone number for notices and other communications hereunder by notice to the other parties hereto, and Schedule 1 shall be revised in accordance therewith.
(v)Reliance by Lender and Lending Parties. The Lender and the Lending Parties shall be entitled to rely and act upon any notices (including, without limitation, electronic notices of borrowing) purportedly given by or on behalf of the Borrower 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. All telephonic notices to and other telephonic communications with the Lender may be recorded by the Lender, and each of the parties hereto hereby consents to such recording.
(i)Integration. This Note, together with the other Note Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Note and those of any other Note Document (other than any intercreditor agreement), the provisions of this Note shall control; provided that the inclusion of supplemental rights or remedies in favor of the Lender or the Lending Parties in any other Note Document shall not be deemed a conflict with this Note. Each Note Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
(j)Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Note 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 Lender and each Lending Party, regardless of any investigation made by the Lender or any Lending Party or on its behalf and notwithstanding that the Lender or any Lending Party may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as the Term Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
(k) Service of Process. Each party to this Note irrevocably consents to service of process in the manner provided for notices in Section 7(h). Such service may be made by mailing or delivering a copy of such process to such Note Party at the address set forth in Section 7(h). Nothing in this Section 7(k) shall affect the right of any Lending Party or the Lender to serve legal process in any other
manner permitted by applicable law or affect the right of any Lending Party or the Lender to bring any suit, action or proceeding against each Note Party or its property in the courts of other jurisdictions.
(i)THIS NOTE AND EACH OTHER NOTE DOCUMENT 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 NOTE OR ANY OTHER NOTE DOCUMENTATION (EXCEPT, AS TO ANY OTHER NOTE DOCUMENT, AS EXPRESSLY SET FORTH HEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK.
(ii)THE BORROWER AND EACH OTHER NOTE 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 LENDER, ANY LENDING PARTY, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS NOTE OR ANY OTHER NOTE DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR 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 EXCLUSIVE 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, LITIGATION 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 NOTE OR IN ANY OTHER NOTE DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER OR ANY LENDING PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS NOTE OR ANY OTHER NOTE DOCUMENT AGAINST THE BORROWER OR ANY OTHER NOTE PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(iii)EACH PARTY HERETO 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 NOTE OR ANY OTHER NOTE DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (ii) OF THIS SECTION 7(l). EACH PARTY 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.
(m)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 NOTE OR ANY OTHER NOTE 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 NOTE AND THE OTHER NOTE DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.
(n)Tax Treatment. The Lender, the Lending Parties and Borrower intend to treat this Note as debt for U.S. federal, state and other income tax purposes, and the parties agree to not take any position inconsistent with such treatment.
(o)Amendments; Waivers. Neither this Note nor any other Note Document may be amended, restated, amended and restated, supplemented, waived or otherwise modified except by written agreement signed by the Borrower and the Lender. The waiver of any term hereof or the breach thereof in any instance shall not be deemed to be a waiver of such term or breach in any other instance or of any other term or breach.
(p)Additional Subsidiaries. To the extent any Subsidiary of the Borrower becomes a Subsidiary Loan Party (as defined in the Credit Agreement) and becomes subject to the provisions of Section 5.10 of the Credit Agreement subsequent to the date of this Note, upon the request of the Lender, such Subsidiary shall execute any and all further documents, agreements and instruments, and take all such further actions, that may be required under any applicable law, or which the Lender may reasonably request, to cause such Subsidiary to become a Note Party for purposes of the Note.
8.Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Note and are not to affect the construction of, or to be taken into consideration in interpreting, this Note.
9.Definitions. As used in this Note, the following terms shall have the meanings set forth below:
“Administrative Agent” means the “Administrative Agent” as such term is defined in the Credit Agreement.
“Affiliate” means, with respect to any 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; provided that portfolio companies of the Lender or any Lending Party that are not Subsidiaries of Holdings shall be deemed not to be Affiliates of any Note Party.
“Borrower” has the meaning in the preliminary statements to this Note.
“Borrowing” means a borrowing consisting of Term Loans made by the Lending Parties.
“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, when used in relation to the Note Parties, New York.
“Closing Date” means the first date all the conditions precedent in Section 5 are satisfied or waived by the Lender as set forth therein, which date is April 1, 2024.
“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. “Controlled” has a meaning correlative thereto.
“Credit Agreement” means that certain Credit Agreement, dated as of December 23, 2021, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, by and among the Note Parties from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent and the lenders from time to time party thereto.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that upon notice, the lapse of grace period, or both, would constitute an Event of Default.
“Event of Default” has the meaning set forth in Section 6.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state, local, or otherwise, 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.
“Guarantee Agreement” means the Guarantee Agreement, dated as of the Closing Date, as amended, restated, amended and restated, supplemented, reaffirmed or otherwise modified from time to time, made by the Guarantors in favor of the Lender, together with each other guarantee agreement and guarantee agreement supplement of any Subsidiary in respect of the Obligations of the Borrower delivered pursuant to Section 7(p).
“Guarantors” means, collectively, Fathom Guarantor, LLC, a Delaware limited liability company and the Subsidiaries set forth on the signature pages to the Guarantee Agreement that, as of the Closing Date, have guaranteed the Obligations of the Borrower (in its capacity as the Borrower under the Note Documents) pursuant to the Guarantee Agreement and each other Subsidiary that has become a Guarantor pursuant to Section 7(p). For avoidance of doubt, the Borrower in its sole discretion may cause any Subsidiary that is not otherwise required to become a Guarantor to guarantee the Obligations by causing such Subsidiary to become a party to the Guarantee Agreement required by Section 7(p).
“Interest Payment Date” has the meaning set forth in Section 2.
“Laws” means, collectively, all international, foreign, federal, state and local laws (including, without limitation, common law), statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, including, without limitation, 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.
“Lender” has the meaning in the preliminary statements to this Note.
“Lending Party” has the meaning in the preliminary statements to this Note.
“Main Fund” has the meaning in the preliminary statements to this Note.
“Material Adverse Effect” means any event, development or circumstance that has had or could reasonably be expected to have a material adverse effect on (a) the business, operations, assets or financial condition of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of the Note Parties, taken as a whole, to perform their payment obligations under the Note Documents, or (c) the rights of or benefits available to the Lender or the Lending Parties under the Note Documents.
“Maturity Date” has the meaning set forth in Section 3(b).
“Note” has the meaning in the preliminary statements to this Note.
“Note Documents” means, collectively, (a) this Note, (b) the Guarantee Agreement and (c) any other document, agreement or instrument designated in writing as a “Note Document” by the applicable Note Party, applicable Lending Party and the Lender.
“Note Parties” means, collectively, the Borrower and each Guarantor.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Note Party arising under any Note Document with respect to the Term Loan, in each case, whether direct or indirect (including, without limitation, those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including, without limitation, interest and fees that accrue after the commencement by or against any Note Party 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. Without limiting the generality of the foregoing, the Obligations of the Note Parties under the Note Documents include the obligation to pay principal and interest and other amounts payable by any Note Party under any Note Document.
“Parallel Fund” has the meaning in the preliminary statements to this Note.
“Person” means any natural person, corporation, business trust, joint ventures, associations, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof or other entity.
“PIK Interest” has the meaning set forth in Section 2.
“Register” has the meaning set forth in Section 7.
“Solvent” and “Solvency” mean, immediately after giving effect to the Transactions, (a) the fair value of the assets of the Borrower and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a consolidated basis, respectively; (b) the present fair saleable value of the property of the Borrower and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Borrower and its Subsidiaries on a consolidated basis, respectively, on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) the Borrower and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) the Borrower and its Subsidiaries on a consolidated basis will not conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.
“Subsidiary” and “Subsidiaries” have the meanings ascribed to them in the Credit Agreement.
“Term Loan” has the meaning set forth in Section 1.
“Term Loan Commitment” means each Lending Party’s commitment to make the Term Loan in an aggregate principal and/or face amount at any time outstanding not to exceed $2,500,000 or in any agreement pursuant to which any other person becomes a party hereto holding a Term Loan Commitment, as such commitment may be changed from time to time pursuant to the terms hereof. The aggregate Term Loan Commitment shall be $2,500,000 on the Closing Date (which (i) 73.8687% of such Term Loan Commitment shall be allocated to the Main Fund and (ii) 26.1313% of such Term Loan Commitment shall be allocated to the Parallel Fund).
“Transactions” means, collectively, (a) the issuance of this Note and (b) the entry into and delivery of the other Note Documents.
* * * * * *
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.
FATHOM MANUFACTURING, LLC,
as the Borrower
By: /s/ Mark T. Frost
Name: Mark T. Frost
Title: Chief Financial Officer
[Signature Page to Unsecured Promissory Note]
ACCEPTED AND AGREED:
CORE INDUSTRIAL PARTNERS FUND I, L.P.,
as the Lender and as a Lending Party
By: CORE Industrial Partners GP I, LLC
Its: General Partner
By: /s/ John May
Name: John May
Title: Managing Partner
CORE INDUSTRIAL PARTNERS FUND I PARALLEL, L.P., as a Lending Party
By: CORE Industrial Partners GP I, LLC
Its: General Partner
By: /s/ John May
Name: John May
Title: Managing Partner
[Signature Page to Unsecured Promissory Note]
Schedule 1
Addresses for Notices
|
|
Borrower: Mark Frost Fathom Manufacturing, LLC 1050 Walnut Ridge Drive Hartland, WI 53029 Attention: Mark Frost mark.frost@fathommfg.com 262-563-5541 |
Lender: CORE Industrial Partners, LLC 150 N. Riverside Plaza, Suite 2020 Chicago, Illinois 60606 Attention: John May, Matthew Puglisi john@coreipfund.com, matt@coreipfund.com 312-566-4880 |
GUARANTEE AGREEMENT dated as of April 1, 2024 (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, this “Agreement”), among the Guarantors (as defined below) from time to time party hereto and CORE Industrial Partners Fund I, L.P., a Delaware limited partnership (for the benefit of the Lending Parties, together with its successors and assigns, the “Lender”).
WHEREAS, reference is made to the Unsecured Promissory Note, dated as of the date hereof (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, the “Note”), among Fathom Manufacturing, LLC, a Delaware limited liability company (the “Borrower”), the Lender and the Lending Parties.
WHEREAS, the Lending Parties have agreed to make the Term Loan to the Borrower subject to the terms and conditions set forth in the Note;
WHEREAS, the obligations of the Lending Parties to make the Term Loan are conditioned upon, among other things, the execution and delivery of this Agreement; and
WHEREAS, Guarantors (other than the Borrower) are affiliates of the Borrower, will derive substantial benefits from the making of the Term Loan to the Borrower pursuant to the Note, and Holdings, the Borrower and the other Guarantors are willing to execute and deliver this Agreement in order to induce the Lending Parties to make such a Term Loan.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article I
DEFINITIONS
SECTION 1.01Unsecured Promissory Note.
(a)Capitalized terms used in this Agreement (including in the introductory paragraph hereto) and not otherwise defined herein have the meanings specified in the Note.
SECTION 1.02Other Defined Terms.
As used in this Agreement, the following terms have the meanings specified below:
“Agreement” has the meaning assigned to such term in the introductory paragraph to this Agreement.
“Borrower” has the meaning assigned to such term in the introductory paragraph to this Agreement.
“Borrower Representative” has the meaning assigned to such term in Section 5.13.
“Claiming Party” has the meaning assigned to such term in Section 3.02.
“Contributing Party” has the meaning assigned to such term in Section 3.02.
“Guarantors” means (a) the Borrower (except with respect to its own obligations), (b) each other Person signatory hereto as of the date hereof and (c) each other Subsidiary of the Borrower that becomes a party to this Agreement as a “Guarantor” on or after the date hereof pursuant to Section 5.11.
“Lender” has the meaning assigned to such term in the introductory paragraph to this Agreement. For the avoidance of doubt, the Lender enters into this Agreement for the benefit of each of the Lending Parties.
“Note” has the meaning assigned to such term in the introductory paragraph to this Agreement.
“Supplement” means an instrument in the form of Exhibit A hereto, or any other form approved by the Lender in its reasonable discretion.
ARTICLE II
THE GUARANTEES
SECTION 2.01 Guarantee. Each Guarantor irrevocably and unconditionally guarantees, as a primary obligor and not as a surety to the Lender and its permitted successors and permitted assigns, jointly with the other Guarantors and severally, the due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) payment and performance in full in cash of the Obligations. Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, or amended or modified, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal, or amendment or modification, of any of the Obligations. To the fullest extent permitted by applicable law, each Guarantor waives diligence, presentment to, demand of payment from and protest to and notice of protest to the Borrower or any other Note Party of any of the Obligations, and also waives all notices whatsoever, including notice acceptance of its guarantee and notice of protest for nonpayment. Notwithstanding anything to the contrary contained herein, the obligations of each Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable provisions of any other applicable law.
SECTION 2.02 Guarantee of Payment; Continuing Guarantee. Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual of collection of any of the Obligations or operated as a discharge thereof) and not merely of collection. Each Guarantor agrees that its guarantee hereunder is continuing in nature and applies to all of the Obligations, whether currently existing or hereafter incurred.
SECTION 2.03 No Limitations.
(a)Except for the termination or release of a Guarantor’s obligations hereunder as expressly provided in Section 5.10(b) or the Borrower’s payment or performance in full in cash of the Obligations, the obligations of each Guarantor, to the fullest extent permitted by applicable law, are absolute, irrevocable and unconditional, joint and several hereunder and shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense (other than the defense of payment in full in cash of the Obligations). Without limiting the generality of the foregoing, except for the termination or release of its obligations hereunder as expressly provided in Section
5.10 or the Borrower’s payment or performance in full in cash of the Obligations, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by: (i) the failure of the Lender or any other Person to assert any claim or demand or to enforce any right or remedy under the provisions of any Note Document or otherwise; (ii) any rescission, waiver, amendment, restatement or modification of, or any release from any of the terms or provisions of, any Note Document or any other agreement, including with respect to any other Guarantor under this Agreement; (iii) any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (iv) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the payment in full in cash of the Obligations); (v) any illegality, genuineness, lack of validity or lack of enforceability of any of the Obligations; (vi) any change in the corporate existence, structure or ownership of any Note Party, including by way of merger or amalgamation, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Note Party or its assets or any resulting release or discharge of any of the Obligations; (vii) the existence of any claim, setoff or other rights that any Guarantor may have at any time against the Borrower, the Lender or any other Person, whether in connection with the Note, this Agreement or any unrelated transaction; (viii) this Agreement having been determined (on whatsoever grounds) to be invalid, non-binding or unenforceable against any other Guarantor ab initio or at any time after the date hereof; (ix) the fact that any Person that, pursuant to the Note Documents, was required to become a party hereto may not have executed or is not effectually bound by this Agreement, whether or not this fact is known to the Lender; (x) the maturity of any of the Obligations shall be accelerated; (xi) any action permitted or authorized hereunder or the other Note Documents, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted (including incurring any increase or decrease in the principal amount of the Obligations or the rate of interest or the fees thereon); or (xii) any other circumstance, or any existence of or reliance on any representation by the Lender or any other Person, that might otherwise constitute a defense to, or a legal or equitable discharge of, the Borrower, any Guarantor or any other guarantor or surety. Each Guarantor expressly authorizes the Lender to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.
(b)To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrower or any other Note Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Note Party (other than the defense of payment in full in cash of the Obligations). The Lender may, at its sole election and in accordance with the terms of the Note Documents, compromise or adjust any part of the Obligations, make any other accommodation with the Borrower or any other Note Party or exercise any other right or remedy available to them against the Borrower or any other Note Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Borrower has paid or performed in full of the Obligations. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrower or any other Note Party, as the case may be.
SECTION 2.04 Reinstatement. Each Guarantor agrees that, unless released pursuant to Section 5.10(b), its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligations is rescinded or must otherwise be restored or returned by the Lender upon the insolvency, bankruptcy or reorganization (or any analogous proceeding in any jurisdiction) of the Borrower, any other Note Party or otherwise all as though such payment had not been made. Subject to any applicable Debtor Relief Laws, if acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such
amounts otherwise subject to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the other Guarantors forthwith on written demand by the Lender.
SECTION 2.05 Agreement to Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Lender has at applicable law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other Note Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Lender in cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to the Lender as provided above, all rights of such Guarantor against the Borrower or any other Note Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article III.
SECTION 2.06 Information. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s and each other Note Party’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that the Lender will not have any duty to advise such Guarantor of information known to it regarding such circumstances or risks.
SECTION 2.07 Payments Free of Taxes. Any and all payments by or on account of any obligation of any Guarantor hereunder or under any other Note Document shall be made free and clear of and without deduction for any taxes on the same terms and to the same extent that payments by the Note Parties are required to be so made pursuant to the terms of the Note.
ARTICLE III
INDEMNITY, SUBROGATION AND SUBORDINATION
SECTION 3.01 Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 3.03) in respect of any payment hereunder, the Borrower agrees that in the event a payment in respect of any obligation of the Borrower shall be made by any Guarantor under this Agreement, the Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment.
SECTION 3.02 Contribution and Subrogation. Each Guarantor (a “Contributing Party”) agrees (subject to Section 3.03) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligations and such other Guarantor (the “Claiming Party”) shall not have been fully indemnified as provided in Section 3.01, the Contributing Party shall indemnify the Claiming Party in an amount equal to the amount of such payment multiplied by a fraction of which the numerator shall be the net worth of the Contributing Party on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 6.13, the date of the Supplement executed and delivered by such Guarantor) and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.11, such other date). Any Contributing Party making any payment to a Claiming Party pursuant to this Section 3.02 shall be subrogated to the rights of such Claiming Party under Section 3.01 to the extent of such payment.
SECTION 3.03 Subordination. Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 3.01 and 3.02 and all other rights of the Guarantors of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to the
payment in full in cash of all the Obligations. No failure on the part of the Borrower or any Guarantor to make the payments required by Sections 3.01 and 3.02 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder. Each Guarantor hereby agrees that upon the occurrence and during the continuance of an Event of Default and after written notice from the Lender (provided that no such notice shall be required to be given in the case of any Event of Default arising under Section 6 of the Note), all other monetary obligations owed by it to, or to it by, any other Guarantor or any other Subsidiary of the Borrower shall be fully subordinated to the payment in full in cash of all the Obligations.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
On the date hereof, and thereafter solely to the extent required in accordance with the terms of the Note Documents, each Guarantor represents and warrants, as to itself, to the Lender that (a) this Agreement has been duly authorized, executed and delivered by such Guarantor and constitutes a legal, valid and binding obligation of such Guarantor, enforceable against it in accordance with its terms, subject to (i) the Debtor Relief Laws, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing, and (b) all representations and warranties set forth in Section 4 of the Note as to such Guarantor are true and correct in all material respects; provided that, to the extent such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language is true and correct in all respects after giving effect to such qualification.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be given as provided in Section 10(h) of the Note.
SECTION 5.02 Waivers; Amendment. No failure or delay by the Lender in exercising any right or power hereunder or any other Note Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Lender hereunder and under the other Note Documents are cumulative and are not exclusive of any rights or remedies that the Lender would otherwise have. Without limiting the generality of the foregoing, the making of the Term Loan shall not be construed as a waiver of any default or Event of Default, regardless of whether the Lender may have had notice or knowledge of such default or Event of Default at the time. No notice or demand on any Note Party in any case shall entitle any Note Party to any other or further notice or demand in similar or other circumstances. Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Lender and the Guarantor or Guarantors with respect to which such waiver, amendment or modification is to apply The waiver of any term hereof or the breach thereof in any instance shall not be deemed to be a waiver of such term or breach in any other instance or
of any other term or breach and such waiver or consent shall be effective only in the specific instance and for the purpose for which given.
SECTION 5.03 Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and permitted assigns of such party; and all covenants, promises and agreements by or on behalf of any Guarantor or the Lender that are contained in this Agreement shall bind and inure to the benefit of their respective permitted successors and permitted assigns; provided that no assignment of the obligations of the Guarantors shall be permitted and any such assignment completed in contravention hereof shall be deemed null and void.
SECTION 5.04 Survival of Agreement. All covenants, agreements, representations and warranties made by the Note Parties in this Agreement and the other Note Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement and the other Note Documents shall be considered to have been relied upon by the Lender and shall survive the execution and delivery of the Note Documents and the making of the Term Loan, regardless of any investigation made by or on behalf of the Lender and notwithstanding that Lender may have had notice or knowledge of any default, Event of Default or incorrect representation or warranty at the time the Term Loan is made under the Note or any other Note Document, and shall continue in full force and effect until the Borrower’s payment in full in cash of the Obligations.
SECTION 5.05 Counterparts; Effectiveness; Several Agreement. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Any signature to this Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Agreement. This Agreement shall become effective as to any Guarantor when a counterpart hereof executed on behalf of such Guarantor shall have been delivered to the Lender and a counterpart hereof shall have been executed on behalf of the Lender, and thereafter shall be binding upon such Guarantor and the Lender, and shall inure to the benefit of such Guarantor, the Lender and their respective permitted successors and permitted assigns, except that no Guarantor shall have the right to assign or transfer its rights or obligations hereunder or any interest herein (and any such assignment or transfer shall be void) except as expressly provided in this Agreement. This Agreement shall be construed as a separate agreement with respect to each Guarantor and may be amended, restated, amended and restated, modified, supplemented, waived or released with respect to any Guarantor without the approval of any other Guarantor and without affecting the obligations of any other Guarantor hereunder.
SECTION 5.06 Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Agreement operate or would prospectively operate to invalidate this Agreement, then and in any such event, only such provision(s) shall be deemed null and void and shall not affect any other provision of this Agreement and the remaining provisions of this Agreement shall remain operative and in full force and effect and in no way shall be affected, prejudiced or disturbed thereby.
SECTION 5.07 Governing Law; Jurisdiction; Consent to Service of Process
(a)THIS AGREEMENT 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 AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY 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 LENDER OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER NOTE DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR 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 EXCLUSIVE 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, LITIGATION 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 NOTE DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER OR ANY LENDING PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER NOTE DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(b)Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in this Section 5.07. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c)Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 5.01. Nothing in this Agreement will affect the right of any party to this Agreement or any other Note Document to serve process in any other manner permitted by law.
(d)Each Guarantor hereby, to the extent legally permissible, irrevocably designates, appoints and empowers the Borrower as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents that may be served in any such action or proceeding and the Borrower hereby accepts such designation and appointment.
SECTION 5.08 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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, ANY OTHER NOTE 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.08.
SECTION 5.09 Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 5.10 Termination or Release
(e)Subject to Section 2.04, this Agreement and the Guarantees made herein shall terminate irrevocably, immediately and automatically upon the Borrower’s payment or performance in full in cash of the Obligations.
(f)The guarantees made herein shall also terminate and be released at the time or times and in the manner expressly set forth in the Note.
(g)In connection with any termination or release pursuant to paragraph (a) or (b) of this Section 5.10, the Lender shall promptly execute and deliver to any Note Party, at such Note Party’s expense, all documents that such Note Party shall reasonably request to evidence such termination or release (and the Lender may rely conclusively on a certificate to that effect provided to it by any Note Party upon its reasonable request without further inquiry, it being understood that no other documentation or information shall be required to be provided by any Borrower or any Restricted Subsidiary). Any execution and delivery of documents by the Lender pursuant to this Section 6.10 shall be without recourse to, and without representation or warranty by the Lender.
SECTION 5.11 Additional Guarantors. Additional Subsidiaries may become Guarantors after the date hereof as contemplated by the Note. Upon execution and delivery by the Lender and such Subsidiary of a Supplement, such Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally named as such herein. The execution and delivery of any such instrument shall not require the consent of any other Person. The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any Person as a party to this Agreement.
SECTION 5.12 General Limitations on Guarantee Obligations. In any action or proceeding involving any state corporate, limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Guarantor under Article II would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Article II, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, any Note Party or any other Person, be automatically limited and reduced to the highest amount (after giving effect to the liability under this Agreement and the right of contribution established in Section 3.02, but before giving effect to any other guarantee) that is valid and enforceable under such applicable laws and not subordinated to the claims of other creditors as determined in such action or proceeding.
SECTION 5.13 Borrower as Representative. Each Guarantor, to the extent legally permissible, irrevocably appoints the Borrower as the borrowing agent and attorney-in-fact for each Guarantor (together with its successors and assigns, the “Borrower Representative”), which appointment shall remain in full force and effect unless and until the Lender shall have received prior written notice signed by each applicable Guarantor that such appointment has been revoked. Each Guarantor hereby, to the extent legally permissible, irrevocably appoints and authorizes the Borrower Representative (i) to
provide to the Lender and receive from the Lender all notices with respect to the Term Loan and all other notices and instructions under this Agreement and the other Note Documents, (ii) to execute and deliver on behalf of any Guarantor all notices, amendments, consents, certificates, Note Documents and any other documents or writings related thereto any of the foregoing and (iii) to take such action as the Borrower Representative deems appropriate on its behalf to obtain the Term Loan and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement, and the other Note Documents.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
GUARANTORS:
FATHOM GUARANTOR, LLC
FATHOM MANUFACTURING, LLC
CENTEX MACHINE AND WELDING LLC
INCODEMA BUYER LLC
INCODEMA HOLDINGS LLC
LASER MANUFACTURING, LLC
ICO MOLD, LLC
KEMEERA LLC
MIDWEST COMPOSITE TECHNOLOGIES, LLC
MCT GROUP HOLDINGS, LLC
MCT REAL ESTATE, LLC
SUMMIT PLASTICS, LLC
SUMMIT TOOLING, LLC
DAHLQUIST MACHINE, LLC
INCODEMA, LLC
MAJESTIC METALS, LLC
NEWCHEM, LLC
PRECISION PROCESS LLC
SURESHOT PRECISION, LLC
By: /s/ Mark T. Frost
Name: Mark T. Frost
Title: Chief Financial Officer
AGREED AND ACCEPTED:
LENDER:
CORE INDUSTRIAL PARTNERS FUND I, L.P.
By: CORE Industrial Partners GP I, LLC
Its: General Partner
By: /s/ John May
Name: John May
Title: Managing Partner