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UNITED STATES

SECURITIES AND EXCHANGE

COMMISSION

WASHINGTON, D.C. 20549


FORM 10‑K


ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2016

Commission File No. 001‑16501

PICTURE 12


Global Power Equipment Group Inc.

(Exact name of registrant as specified in its charter)


Delaware
(State or other jurisdiction of
incorporation or organization)

73‑1541378
(I.R.S. Employer
Identification No.)

 

400 E. Las Colinas Blvd., Suite 400

Irving, TX 75039

(Address of registrant’s principal executive offices and zip code)

Registrant’s telephone number, including area code: (214) 574‑2700

 

Securities registered pursuant to Section 12(b) of the Act:

 

NONE

 

Securities registered pursuant to Section 12(g) of the Act:

Common Stock, par value $0.01 per share


Indicate by check mark if the registrant is a well‑known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐  No ☒

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐  No ☒

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐  No ☒

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S‑T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☐  No ☒

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S‑K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10‑K or any amendment to this Form 10‑K. ☐ 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non‑accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b‑2 of the Exchange Act:

 

 

 

 

 

 

Large accelerated filer

 

Accelerated filer

Non-accelerated filer

 

Smaller reporting company

(Do not check if a smaller reporting company)

 

Emerging growth company

 

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. 

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b‑2 of the Exchange Act). Yes ☐  No ☒

 

As of July 1, 2016, the last business day of our most recently completed second fiscal quarter, 10,999,968 shares of the registrant’s publicly traded common stock held by non-affiliates were outstanding with an aggregate market value of approximately $23,759,931 (based upon the closing price on July 1, 2016 of $2.16  per share).

 

As of September 5, 2017, there were 17,778,885 shares of common stock of Global Power Equipment Group Inc. outstanding.

 

 

 


 

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Explanatory Note  

1

Cautionary Note Regarding Forward-Looking Statements  

3

Part I  

5

Item 1.     Business .

5

Item 1A.  Risk Factors .

16

Item 1B. Unresolved Staff Comments .

37

Item 2. Properties .

38

Item 3. Legal Proceedings .

39

Item 4. Mine Safety Disclosures .

39

Part II  

40

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities .

40

Item 6. Selected Financial Data .

42

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.  

46

Item 7A. Quantitative and Qualitative Disclosures About Market Risk .

82

Item 8. Financial Statements and Supplementary Data .

83

Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure .

83

Item 9A. Controls and Procedures .

84

Item 9B. Other Information .

87

Part III  

88

Item 10. Directors, Executive Officers and Corporate Governance.  

88

Item 11. Executive Compensation.  

97

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.  

115

Item 13. Certain Relationships and Related Transactions, and Director Independence .

118

Item 14. Principal Accountant Fees and Services.  

118

Part IV  

119

Item 15. Exhibits and Financial Statement Schedules.  

119

Item 16. Form 10-K Summary.  

119

 

Statements we make in this Annual Report on Form 10-K where we express a belief, expectation or intention or otherwise are not limited to recounting historical facts are forward‑looking statements. These forward‑looking statements are subject to various risks, uncertainties and assumptions, including those noted under the headings “Cautionary Note Regarding Forward-Looking Statements” and “Part I—Item 1A—Risk Factors” in this Annual Report on Form 10-K.

 

 

 


 

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Explanatory Note

 

This Annual Report on Form 10-K (this “Form 10-K”) is a comprehensive filing for the fiscal year ended December 31, 2016, filed by Global Power Equipment Group Inc. (“Global Power,” the “Company,” “we,” “us” or “our,” unless the context indicates otherwise).

We experienced a significant delay in completing our Annual Report on Form 10-K for the year ended December 31, 2015 (the “2015 Report”), which included the restatement of certain prior period financial results. For additional information regarding this restatement and related matters, investors should refer to the 2015 Report. Because of the delay in filing our 2015 Report, we did not timely file our Quarterly Reports on Form 10-Q for the first three quarters of our 2016 fiscal year or this Form 10-K for the fiscal year ended December 31, 2016.

In order to provide stockholders a composite presentation of information, this filing includes more information than would routinely be included in an Annual Report on Form 10-K. This Form 10-K includes:

·

Audited balance sheets as of December 31, 2016 and 2015 and audited consolidated statements of operations, consolidated statements of comprehensive (loss) income, consolidated statements of stockholders’ equity and consolidated statements of cash flows for each of our fiscal years ended December 31, 2016, 2015 and 2014.

·

Selected Financial Data for our 2016, 2015, 2014, 2013 and 2012 fiscal years.

·

Management’s Discussion and Analysis for our fiscal years ended December 31, 2016 and 2015, including comparisons with the corresponding year-to-date periods in 2015 and 2014.

·

Management’s Discussion and Analysis for our fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, including comparisons with the corresponding quarterly periods in 2015.

·

Unaudited condensed financial information for our fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016.

We believe that presenting all of the information for the periods indicated above in this Form 10-K allows investors and others to review all pertinent data in a single presentation. We have not filed and do not intend to file Quarterly Reports on Form 10-Q for any of our 2016 fiscal quarters.

On December 22, 2016, we sold three of our manufacturing facilities in Franklin, Indiana, Auburn, Massachusetts and Houston, Texas for $14.8 million and immediately leased the facilities back (the “sale-leaseback”) for a term of ten years. The net proceeds of $12.2 million were used to pay down our debt. We expect a net increase in our rental expense in 2017 as a result of this transaction.

In July 2016, we sold the stock of our wholly owned subsidiaries TOG Holdings, Inc. and TOG Manufacturing Company, Inc. (collectively, “TOG”), for $6.0 million in cash to Doncasters Group, subject to traditional post-closing working capital adjustments, escrow withholdings and disposition expenses. Proceeds from the sale of TOG were used to reduce debt.

Subsequent Events

Subsequent to December 31, 2016, we undertook several initiatives designed to restructure our operations, lower our operating costs, enhance our liquidity and reduce indebtedness.

In June 2017, funds affiliated with Centre Lane Partners, LLC (“Centre Lane”) purchased the outstanding debt from our then-existing lenders under our revolving credit agreement. Centre Lane assumed the credit agreement prior to the completion of a new, multi-year credit agreement entered into by the Company and Centre Lane, which replaced our revolving credit facility. In August 2017, the Company and Centre Lane entered into the first amendment to the credit agreement, which provided the Company with further funds in the form of a first-out term loan, which matures in September 2018.

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In January 2017, we sold the stock of our wholly owned subsidiaries, Hetsco Holdings, Inc. and Hetsco, Inc. (collectively, “Hetsco”) for $23.2 million in cash, inclusive of working capital adjustments. After transaction costs and an escrow withholding of $1.5 million, the net proceeds of $20.2 million were used to reduce debt. Reported as part of our Services segment, Hetsco provided brazed aluminum heat exchanger repair and maintenance and safety services to the industrial gas, liquefied natural gas and petrochemical industries. Following the sale of Hetsco, we no longer engage in these services and no longer maintain intellectual property related to the Hetsco trade name or brand. Unless otherwise specified, information contained in this report is as of December 31, 2016 and does not reflect the sale of Hetsco. For the year ended December 31, 2016, Hetsco contributed $22.4 million in revenue, $7.2 million in gross profit and an operating loss of $7.6 million, which included a loss on assets and liabilities held for sale of $8.3 million.

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Cautionary Note Regarding Forward‑Looking Statements

 

This Form 10-K and its exhibits contain or incorporate by reference various forward-looking statements that express a belief, expectation or intention or are otherwise not statements of historical fact. Forward-looking statements generally use forward-looking words, such as “may,” “will,” “could,” “project,” “believe,” “anticipate,” “expect,” “estimate,” “continue,” “potential,” “plan,” “forecast” and other words that convey the uncertainty of future events or outcomes. These forward-looking statements are not guarantees of our future performance and involve risks, uncertainties, estimates and assumptions that are difficult to predict. Therefore, our actual outcomes and results may differ materially from those expressed in these forward-looking statements. Investors should not place undue reliance on any of these forward-looking statements. Except as required by law, we undertake no obligation to further update any such statements, or the risk factors described in “Part I—Item 1A. Risk Factors,” to reflect new information, the occurrence of future events or circumstances or otherwise.

The forward-looking statements in this filing do not constitute guarantees or promises of future performance. The following important factors could cause actual outcomes and results to differ materially from those expressed in our forward-looking statements:

·

our high level of indebtedness;

·

our ability to make interest and principal payments on our debt and satisfy the other covenants contained in the Centre Lane Facility (as defined below);

·

our ability to generate sufficient cash resources to continue funding operations;

·

our pending putative securities class action;

·

the United States (“U.S.”) Securities and Exchange Commission (the “SEC”) Division of Enforcement’s pending formal investigation into possible securities law violations by the Company;

·

our material weaknesses in internal control over financial reporting and our ability to maintain effective controls over financial reporting in the future;

·

changes in our senior management, financial reporting and accounting teams;

·

our ability to timely prepare and file our periodic reports;

·

our ability to comply with certain financial covenants of our debt obligations;

·

a failure to implement our business strategies;

·

a failure to realize operating and growth initiatives and opportunities;

·

our competitive position;

·

market outlook and trends in our industry;

·

the results of the bankruptcy filing of Westinghouse Electric Company LLC (“Westinghouse”) and the effects of such filing on the construction of Plant Vogtle Units 3 and 4 and V.C. Summer Units 2 and 3, including construction delays, abandonment, cost overruns and the advisability and feasibility of completing such units;

·

our contract backlog and related amounts to be recognized as revenue;

·

our expected financial condition;

·

our future cash flows;

·

our expected results of operations;

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·

future capital and other expenditures;

·

availability of raw materials and inventories;

·

the impact of Hurricane Harvey or other natural disasters;

·

plans and objectives of management;

·

future exposure to currency devaluations or exchange rate fluctuations;

·

future income tax payments and utilization of net operating loss (“NOL”) and foreign tax credit carryforwards;

·

future compliance with orders of and agreements with regulatory agencies;

·

expected outcomes of legal or regulatory proceedings and their expected effects on our results of operations; and

·

any other statements regarding future growth, future cash needs, future operations, business plans and future financial results.

These forward-looking statements represent our intentions, plans, expectations, assumptions and beliefs about future events and are subject to risks, uncertainties and other factors, including unpredictable or unanticipated factors that we have not discussed in this Form 10-K. Many of those factors are outside our control and could cause actual results to differ materially from the results expressed or implied by the forward-looking statements.

In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements might not occur or might occur to a different extent or at a different time than we have described. Investors should consider the areas of risk and uncertainty described above, as well as those discussed below under “Part I—Item 1A. Risk Factors.” Except as may be required by applicable law, we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, and we caution investors not to rely upon them unduly.

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Part  I

 

Item 1.  Busines s.

Overview

Global Power and its wholly owned subsidiaries are comprehensive providers of custom-engineered solutions and maintenance and modification services for customers in the energy and industrial markets. As of December 31, 2016, customers were located inside and outside the U.S., in both developed and emerging economies.

We design, engineer and manufacture a comprehensive range of gas and steam turbine products, control houses and generator enclosures primarily used to enhance the efficiency and facilitate the operation of power plants and other industrial, energy and power related applications. We believe our customer relationships built over many years, the reliability and performance of our solutions, our ability to deliver complex, engineered solutions, our advanced engineering and execution capabilities, our worldwide manufacturing base and our leading installed base of equipment throughout the world have supported key parts of our business.

We provide on-site maintenance and modification services, outage management and craft labor, facility upgrade services, specialty coatings and roofing, asbestos and lead abatement, specialty aluminum welding, repair and maintenance of brazed aluminum heat exchangers and other industrial and safety services to nuclear, fossil fuel, industrial gas and liquefied natural gas (“LNG”), petrochemical and other industrial operations in the U.S. Subsequent to December 31, 2016, we sold our Hetsco business, which engaged in certain of these services. See “Explanatory Note” for additional information. We have the capability to combine our resources to offer solutions for aftermarket repair applications for the North American gas turbine power generation, petrochemical and cogeneration markets.

Including our predecessor entities, we have over 50 years of experience providing custom-engineered products that are critical for the operation of power plants and more than 32 years of experience providing complex outage shutdown services to operators of nuclear power plants and other industrial maintenance services.

As of December 31, 2016, we used the Braden, Consolidated Fabricators, Hetsco, IBI Power, Koontz-Wagner and Williams trade names and the logos for each of those businesses and for Global Power. These trade names and logos are the property of Global Power. Product names and company programs appearing throughout this Form 10-K are trademarks of Global Power. This Form 10-K also may refer to brand names, trademarks, service marks and trade names of other companies and organizations, and those brand names, trademarks, service marks and trade names are the property of their respective owners. Subsequent to December 31, 2016, we sold Hetsco which maintained some of the intellectual property assets described. See “Explanatory Note” for additional information.

Segments

In determining our reportable segments in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 280—Segment Reporting (“ASC 280”), we concluded that we have three reportable segments: Mechanical Solutions, Electrical Solutions and Services.

Mechanical Solutions

As of December 31, 2016, this reportable segment was comprised of Braden Manufacturing, LLC (“Braden”), Braden Europe, B.V. (“Braden Europe”) and Consolidated Fabricators (“CFI”). TOG was included in this segment until we sold all of the stock of TOG in July 2016. See “Explanatory Note” and “Part II—Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity Outlook” for additional information. Our Mechanical Solutions segment designs, engineers, manufactures, installs, commissions and provides services for the worldwide power generation markets. Mechanical Solutions’ products and services include filter houses, inlet and exhaust systems, diverter dampers, selective catalytic reduction systems (commonly referred to as “SCR”), auxiliary control skids and enclosures, expansion joints, air filtration elements, retrofit and upgrade solutions for natural gas turbine power plants and other industrial, energy and power-related applications. We also provide replacement parts, filter elements and aftermarket retrofit equipment to both original equipment manufacturers (“OEMs”) and end users. Our solutions are custom-engineered to meet project and customer-specific requirements. Our principal customers are utility-scale gas turbine OEMs, engineering, procurement and contractor (“EPC”) firms and the owner/operators that buy OEM equipment, such as electric utilities and independent power producers.

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Our technical and engineering capabilities enable us to design and manufacture a broad range of power plant and other industrial equipment to meet each customer’s specific performance requirements. We provide the following comprehensive range of solutions critical to the operation of power plants.

·

Inlet Systems .  Inlet systems are comprised of filter houses and air intake ducts that condition the air entering a turbine or engine (pulse-type or barrier filtration, temperature and moisture control, flow distribution and pressure drop optimization) and provide acoustical treatment for noise generated by the gas turbine air flow.

·

Exhaust Systems .  Exhaust systems, including diffusers, plenums, ducts and stacks, expansion joints and diverter dampers, direct the hot exhaust from the turbine to the atmosphere in the case of simple cycle operation or into a heat recovery steam generator (“HRSG”) when the power plant is operated as a combined cycle facility.

·

Selective Catalytic Reduction Systems .  SCR systems are used in simple cycle gas turbine facilities and are focused on removing oxides of nitrogen and carbon and other volatiles from exhaust gas.

·

Custom-Engineered Equipment Skids .  Custom-engineered, pre-packaged equipment skids, either enclosed or open to the elements, with or without HVAC, can be used for a wide variety of industrial equipment applications, allowing faster and lower cost equipment installation at a customer’s industrial site.

The contracts under which we sell our products are typically fixed-price contracts, most of which are “lump sum bid” contracts. Under lump sum bid contracts, we bid against other suppliers based on customer or project specifications. Many of our project destinations are outside the U.S.

Historically, Mechanical Solutions fabricated equipment through a combination of in-house manufacturing at our own facilities in the U.S. and Mexico and outsourced manufacturing in other countries around the world. However, beginning in 2016, all of our Mechanical Solutions businesses, except CFI, began exclusively using outsourced manufacturing facilities. Our network of high quality manufacturing partners, located in more than 20 countries, allows us to manufacture equipment worldwide and maintain a competitive cost structure. Outsourcing our gas turbine auxiliary product manufacturing enables us to meet increasing demand without internal manufacturing capacity limitations, to reduce our capital expenditure requirements and to respond to the particular sourcing initiatives of our customers, whether those initiatives call for global sourcing or for localized supply content. Our employees work closely with our international manufacturing partners to supervise the fabrication of our products at their facilities to ensure high levels of quality and workmanship. While we generally have proven, long-term relationships with our subcontractors, we also routinely search for additional subcontractors to enhance our ability to manufacture equipment at the lowest cost while maintaining high quality standards and on time delivery.

We maintain agreements with key third party fabricators, many of which require OEM approval. We conduct regular quality audits of our fabricators and, in some cases, maintain staff on-site. Subcontractors can sometimes take several years to qualify to meet our requirements and international standards, including OEM audit and approval.

Electrical Solutions

As of December 31, 2016, this reportable segment was comprised of Koontz-Wagner, the former operations of IBI Power following its merger with and into Koontz-Wagner and the portion of the Energy Packaged Power Solutions business that we acquired in the first quarter of 2015 from Siemens Industry, Inc. (“Siemens” and the “Siemens’ eHouse manufacturing operations”). Electrical Solutions focuses on custom engineering and manufacturing of integrated control house systems, engine generator packages and enclosures, industrial tanks and custom-engineered equipment skids for the energy, oil and gas, digital data storage and electrical industries. Our principal customers are turbine and reciprocating engine OEMs, switchgear and drive OEMs, backup and distributed power providers, EPC firms, electric utilities and owner/operators of independent electric power facilities, oil and gas midstream and downstream operations, information technology companies and other industrial companies. Our solutions are custom-engineered to meet customer-specific requirements.

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Our technical and engineering capabilities enable us to design and manufacture the following products:

·

Custom-Engineered Equipment Skids .  Custom-engineered, pre-packaged electrical equipment skids can be used for a wide variety of industrial equipment applications, allowing faster and lower cost equipment installation at a customer’s industrial site.

·

Packaged Control Houses (“PCH”) .   PCH are custom-engineered and designed, fully integrated fabricated metal buildings that house electrical power and control equipment, namely switchgear, motor control centers, variable frequency drives and utilities for the power generation, oil and gas processing and refining (midstream and downstream), industrial, utility and renewables market segments.

·

Generator Enclosure Packages and Sub-Base Tanks .  Custom-engineered and designed generator enclosure packages are fabricated metal buildings that are often sound attenuated and designed to meet site certification, visual, environmental, functional, size and sound requirements. The enclosure packages are used to house both prime and standby diesel/natural gas generators that range from 30 Kilowatts to 4,000 Kilowatts in a wide range of environments, from desert to arctic, in a fully integrated package, including all necessary systems for an operating generator package. We also offer sub-base and stand-alone tanks meeting the safety standards of UL LLC, an American safety consulting and certification company, including UL LLC listings UL 142, UL 2085 and ULC-S601.

The contracts under which we sell our products are fixed-price contracts, most of which are “lump sum bid” contracts. Our project destinations are primarily in the U.S.

Electrical Solutions continues to leverage its geographically broad North American manufacturing footprint to provide control houses, custom-engineered equipment skids and generator packages throughout the western hemisphere.

Services

As of December 31, 2016, this reportable segment was comprised of Williams Industrial Services Group, LLC (collectively with Williams Plant Services, LLC, Williams Specialty Services, LLC and Williams Industrial Services, LLC, the “Williams business”) and Hetsco. The Hetsco business was sold in January 2017. See “Explanatory Note” for additional information. Our Services segment provides a comprehensive range of maintenance, modification and construction support services for nuclear power plants and a wide range of utility and industrial customers in the fossil fuel, industrial gas, natural gas and petrochemical industries, as well as other industrial operations. We provide these services primarily on a direct hire basis, where we manage and perform the work ourselves. We can also act in a general contracting capacity where we manage multiple subcontractors and, in other cases, we are retained as a subcontractor on a project. We primarily operate in the U.S. The Hetsco business generated a portion of its revenue in 2016 from offshore repairs of installed aluminum heat exchangers, primarily in the Middle East, Africa and Asia. The services provided by our Services segment are designed to improve or sustain operating efficiencies and extend the useful lives of process equipment. We provide these services both on a constant presence basis and for discrete projects.

Our Services segment offerings include the following:

·

Nuclear Power Plant Maintenance, Modification and Construction .  We perform a full range of critical services for the nuclear facility market, including capital projects and facility upgrades, as well as routine maintenance and modification work.

·

Fossil Fuel, Industrial Gas, Natural Gas and Petrochemical Operations Modification and Construction .  We provide routine maintenance, repair and capital project services designed to extend plant life cycles.

·

Industrial Painting and Coatings .  We perform cleaning, surface preparation, coatings application, quality control and inspection testing on major coating projects for nuclear and fossil fuel power plants, industrial facilities and petrochemical plants.

·

Insulation .  We provide a variety of industrial insulation services, primarily in power generation installations.

·

Asbestos and Lead Abatement .  We provide abatement services for the removal of asbestos and heavy metal

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based coatings such as lead paint. We do not take ownership of hazardous materials and do not assume responsibility for the liability associated with the materials other than for our actions meeting applicable statutory and regulatory requirements.

·

Roofing Systems .  We replace, repair and upgrade industrial facility roofing systems, primarily at pulp and paper manufacturing facilities and nuclear power plant locations.

·

Specialty Welding Services .  Prior to the sale of the Hetsco business, we provided the following specialty services to manufacturers and users of aluminum heat exchangers:

o

Brazed Aluminum Heat Exchanger Repair, Maintenance and Safety Services . We routinely performed on-site repairs and associated mechanical and safety support services to users of aluminum heat exchangers used in air separation and gas or liquid processing applications.

o

Fabrication . We have the demonstrated capability to fabricate and assemble complete process systems into integrated solutions for the air and gas processing industries.

We provide these services throughout the U.S. with experienced craft laborers who are directed and managed by an experienced team of supervisors and project managers across our network. Our flexible staffing and equipment model enables us to meet seasonal and outage demand without being restricted by internal capacity limitations, thereby minimizing our fixed costs.

In 2016, our Services segment contracted for 72% of the services it provided on a cost-plus basis under contracts that provide for reimbursement of costs incurred plus an amount of profit. It contracted for 28% of the services it provided on a fixed-price basis.

We bid against other contractors based on customer specifications. Fixed-price contracts present certain inherent risks, including the possibility of ambiguities in the specifications received, problems with new technologies and economic and other changes that may occur over the contract period. Alternatively, because of efficiencies that may be realized during the contract term, fixed-price contracts may offer greater profit potential than cost-plus contracts.

For additional information about our segments, please refer to “Note 1—Business and Organization” and “Note 18—Segment Information” to our consolidated financial statements.

Market Overview

Gas Turbine Power Generation and Cogeneration Market .  All gas turbine power plants combine a gas turbine with a generator to produce electricity. In a simple cycle gas turbine plant, the hot exhaust coming out of the gas turbine is vented to the atmosphere through an exhaust stack. In a combined cycle plant, the hot exhaust coming out of the gas turbine is fed into a HRSG. The HRSG captures much of the heat from the gas turbine exhaust to generate steam, which in turn is used to power a steam turbine and generate more electricity before the exhaust is vented into the atmosphere. We manufacture products that are critical components of both simple cycle and combined cycle plants, including packaged control houses, cabinets and skids, or “balance of plant hardware,” filter houses, inlet and exhaust systems, SCRs and turbine and generator components. We also engineer and manufacture specialized diverter dampers that are used in some combined cycle plants between the gas turbine and the HRSG.

Utility-scale natural gas turbine power plants are built to meet growth in demand for electricity, replace aged power producing facilities or supplant less environmentally-friendly coal-fired power plants. According to Enerdata, a global energy intelligence organization, world electricity consumption stabilized in 2014 and 2015 after declining from the global recession. Demand began to rebound in 2016, but was still below historic growth trends.

We believe the driver for natural gas turbine facilities and related demand for our products and services are the advantages of natural gas turbine power generation plants versus other technologies, which include:

·

lower construction costs;

·

shorter construction periods;

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·

improved operating efficiency;

·

lower emissions (NOx, CO2 and other pollutants);

·

flexibility to expand plant capacity;

·

smaller geographical footprint; and

·

rapid start-up and shutdown time.

Oil and Gas Market .  The American Petroleum Institute defines the oil and gas industry as having three segments: Exploration and Production (“upstream”), Transportation (“midstream”) and Refining/Constituent Chemical Processing (“downstream”). We design, manufacture, integrate and package free standing metal interlocking panel buildings that house control systems, switch gear and generators. Our products are deployed globally into the upstream, midstream and downstream oil and gas markets. We produce specialty engineered products, such as flow control and customized skids. Our focus on lean manufacturing processes enables us to perform rapid, serial production of systems and solutions for large projects. We also provide installation, facility upgrade, repair and maintenance services for midstream and downstream operations such as pipeline terminals, compressor or pumping stations and storage operations, refineries and petrochemical processing facilities and LNG operations.

While the drivers for the three segments of the oil and gas industry can vary, we believe demand for certain of our products and services is driven by strength in the oil and gas production industry, which is subject to volatility in energy prices and demand.

The North American oil and gas market has benefited in recent years from advanced extraction methods such as hydraulic fracturing, which has led to pipeline expansions as well as the development of petrochemical facilities and gas separation and liquefaction projects. However, the price of oil began to decline in mid-2014 and dropped to a 14-year low in January 2016. Oil prices began to rise from that point, and the West Texas Intermediate price has been fluctuating around $40 to $50 per barrel since April 2016. The U.S. Energy Information Administration (“EIA”) reported as of July 25, 2017, that U.S. crude oil production is forecasted to average 9.3 million barrels per day for the year, up approximately 15% from 2016, and is expected to increase another 6.5% in 2018. Additionally, key members of the Organization of Petroleum Exporting Countries announced that they will continue the production cuts from the first half of 2017 into 2018. We believe these factors will continue to positively impact the U.S. oil production industry.

Power Generation Market and the Industrial Services Industry .   The U.S. industrial services industry is a multi-billion dollar industry, broadly defined as routine modification, maintenance and technical services provided to industrial facilities ranging from manufacturing facilities to power generation plants. The industry continues to benefit from a shift towards outsourcing as plant operators seek to alleviate financial constraints, reduce labor costs, increase labor utilization and productivity and eliminate operational redundancies.

We expect that power industry demand for these services will be driven by the following factors in the future:

·

Aging Power Generation Infrastructure Increases Demand for Plant Maintenance and Decommissioning Services .  According to the EIA, more than half of the electrical generating capacity in the U.S. was placed in service before 1990. Coupled with the relatively limited number of large-scale power generation facilities being constructed in the U.S., the efforts to maintain older plants of all types and to take advantage of newer and more efficient technologies at existing sites provide opportunities for companies providing services to plant operators. The low price of natural gas is driving demand for new and replacement generation capacity toward combined cycle gas powered plants, which are more economical to run. With natural gas pricing expected to remain low, this is also driving the conversions of simple cycle plants to combined cycle technology.

Further, approximately 90 nuclear reactors that have been in operation in the U.S. for more than 30 years require extensive ongoing engineering and maintenance services to support operations and improve performance. Nuclear power plants in the U.S. are subject to a rigorous program of U.S. Nuclear Regulatory Commission (“NRC”) oversight, inspection, preventive and corrective maintenance, equipment replacement and equipment testing. Nuclear power plants are required by the NRC to go offline to refuel at

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intervals of no more than 24 months and to perform condition monitoring and preventive maintenance during every refueling outage. Initially, commercial nuclear power plants in the U.S. were licensed to operate for 40 years, reflecting the amortization period generally used by electric utility companies for large capital investments. As of December 31, 2016, the NRC had extended the licenses of approximately 85 reactors. In all, about 90 reactors are expected to operate for up to 60 years, with owners undertaking an increase in modification, maintenance and construction capital projects to upgrade these facilities. Decommissioning work on retired nuclear reactors also provides future opportunities for growth.

·

International Natural Gas Turbine Power Generation Growth .  Our Mechanical Solutions segment has had demand for its products from the Middle East, Mexico, South Korea and Southeast Asia. Large, or jumbo, natural gas turbine power generation units represent approximately two-thirds of the new capacity demand. Small natural gas turbine units have also been in demand for portable power and remote/island power needs. The overall number of projects in the Middle East is continuing to rise, including plant upgrades and conversion from simple cycle to combined cycle technology. Among the factors driving this increase for natural gas turbines is operational flexibility, short construction time and the improvement in combined cycle gas turbine technology that has been developed by the major OEMs, which exceeds 60% efficiency.

·

North America Infrastructure Growth .  Record levels of natural gas production has driven transmission and distribution infrastructure development to reduce transportation bottlenecks and bring more natural gas to key markets. The value of low cost shale gas is transitioning from upstream to downstream users, including petrochemical facilities and power generation assets. Infrastructure growth provides opportunities for our Services segment to assist in the construction and maintenance of these facilities, while our Electrical Solutions segment can provide its products to the engineering and procurement contractors designing and building the plants as well as to the owner/operators.

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Nuclear Power Plant Services and New Nuclear Reactor Construction .  We are one of a limited number of companies qualified to perform comprehensive services in U.S. nuclear power plants under rules issued by the NRC. We are one of the few contractors with a qualified and audited Nuclear Quality Assurance (“NQA-1”) Program, which is required to perform contract services at the new build reactors. Under these rules, owners of nuclear facilities must qualify contractors by requiring the contractors to demonstrate that they will comply with NRC regulations on quality assurance, reporting of safety issues, security and control of personnel access and conduct. On the majority of our maintenance and project work, we directly hire the labor and provide the management and supervision to perform the work directly for the owner. In some cases, we act as a general contractor and subcontract portions of the work or, alternatively, subcontract our services to full scope EPC firms or general contractor firms. We maintain good relationships with the utilities, the EPC firms, the general contractor firms and relevant engineering firms. Revenue associated with construction-related projects and other comprehensive service provided at nuclear power plants totaled $125.6 million in 2016 and $255.6 million in 2015.

As of December 31, 2016, there were four new nuclear reactors at two U.S. sites in various stages of construction and commissioning: two at Plant Vogtle in Georgia and two at V.C. Summer in South Carolina. In 2015 and 2016, and continuing through August 2017, our Services segment has participated in several construction-related projects at Plant Vogtle Units 3 and 4 and V.C. Summer Units 2 and 3.

Revenue associated with construction projects at Plant Vogtle Units 3 and 4 totaled $20.0 million and $15.0 million in 2016 and 2015, respectively. On August 30, 2017, the owners of Plant Vogtle Units 3 and 4, along with the other co-owners, filed their recommendation with Georgia’s Public Service Commission to continue construction of Plant Vogtle’s nuclear expansion. Our Services segment has served as a subcontractor for nuclear expansion work at the Plant Vogtle Units 3 and 4 since 2011, and based on this announcement, we believe we can continue to expand the scope of that work. We expect the final decision to be made by the Georgia Public Service Commission after it reviews the recommendations made by the co-owners. In the event construction is discontinued, our Services segment will be adversely affected.

Revenue associated with construction-related projects at V.C. Summer Units 2 and 3 totaled $3.1 million and $1.7 million in 2016 and 2015, respectively. The owners of V.C. Summer Units 2 and 3 filed a petition with the Public Service Commission of South Carolina seeking approval of an abandonment plan of such units, which they later voluntarily withdrew. The ultimate status of V.C. Summer Units 2 and 3 is currently unclear. In the event the V.C. Summer units are abandoned, our Services segment will be adversely

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affected, although the volume of our services provided at this site was not material to our business as a whole.

We also had a significant role in the recent completion of construction activities at Watts Bar Unit 2 in 2016. Revenue associated with construction-related projects at Watts Bar Unit 2 totaled $26.6 million in 2016 and $92.8 million in 2015. 

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Industrial Gas and Natural Gas Markets .  Industrial gases are used in a variety of end markets and frequently require aluminum-brazed heat exchangers to address cryogenic production capabilities. The global industrial gas market is projected to grow, driven by emerging markets and energy demand. In addition, natural gas demand is expected to grow, particularly from petrochemical manufacturers, LNG processors and other companies in the refining and industrial gas industries that use natural gas as a feedstock. Subsequent to December 31, 2016, we sold our Hetsco business. Following that sale, our penetration into the industrial gas industry for the repair and maintenance of cryogenic gas production was eliminated.

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Standby and Distributed Power Generation .  Unlike central station generation, standby and distributed power generation equipment can sit on either side of the utility meter and may be owned by a utility, a customer or a third party. Peak energy demand requirements and higher costs, as well as transmission and distribution infrastructure limits, are driving investment into this space. The growth in industries with high power demand and sensitivity to power supply instability, such as datacenters, medical centers, universities and remotely located industrial loads, are straining the traditional power infrastructure. The electric power needs for these markets have been served by small-scale utility-owned diesel or gas engine generators strategically located to support distributed system operations. The power supply is trending toward larger (greater than 1,000 Kilowatts) diesel engine generator systems and expanding into alternative energy assets. Our Electrical Services segment serves the large and growing datacenter industry with customized generator enclosures and fuel tanks. Our experience in this industry enables us to extend our offerings into adjacent markets through the relationships developed with engine OEMs.

Business Strategy

Beginning in 2015 and continuing in 2017, we initiated a strategy to sell assets, aggressively manage working capital and reduce costs in order to improve liquidity and reduce debt. Currently, we are evaluating strategic alternatives for our Mechanical Solutions segment as we believe this segment’s customers, employees and suppliers could benefit from increased capital and increased investments to allow the segment to compete more effectively and pursue greater growth. Our strategy is also to leverage the strength of our brands (Braden, Consolidated Fabricators, Koontz-Wagner and Williams), capitalize on our industry knowledge and customer relationships and safely provide reliable service and high quality products on time for our customers. As part of our annual planning process, each of our businesses develops growth, productivity improvement and cost reduction initiatives. Each unit has specific initiatives with associated targets for revenue and cash flow. To achieve these goals, our domestic Mechanical Solutions and Electrical Solutions businesses must improve their operational performance, drive operational excellence, improve customer and supplier relationships and expand their customer base. Our Services business must increase the number of customers it serves, increase the number of services it offers and leverage its capabilities across more industries.

We pursue revenue and margin enhancement opportunities, including streamlining and consolidating operations, utilizing estimating and engineering technologies, deploying rigorous project management techniques, initiating various process improvement projects and employing experienced industry-recognized sales professionals.

We are also focused on increasing our margins through the application of lean manufacturing processes and continuous improvement in our operations. We are committed to delivering quality products and services on time for our customers. In addition to pursuing better execution on the shop floor and at our project sites, we have streamlined our selling and administrative functions to better serve our customers. We have implemented lean manufacturing processes to be closer to our customers and adjust faster to changing market conditions.

While headcount continues to decline, positions that have been replaced have been upgraded to expand our range of expertise and depth of knowledge. Our objective is to foster a workplace that will attract top people, challenge them with meaningful projects, reward them for their performance and advance their careers.

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Customers, Marketing and Seasonality

Mechanical Solutions .  Our Mechanical Solutions segment customers are utility-scale gas turbine OEMs, owner/operators, electric utilities and EPC firms. The end users of most of our products sold to OEMs and EPC firms are owners and operators of power plants, including electric utilities. We market our products and services globally through a sales network consisting of employees and independent representatives in various geographic areas, including the Americas, Europe, Asia and the Middle East. Our Mechanical Solutions segment is not materially impacted by seasonality, but rather is more impacted by the growth rates and cyclicality of the U.S. and international economies that we serve.

Electrical Solutions .  Our Electrical Solutions segment customers are turbine and reciprocating engine OEMs, switchgear and drive OEMs, backup and distributed power providers, owner/operators (including industrial customers in the oil and gas midstream and downstream markets), electric utilities and EPC firms. The end users of most of our products sold to OEMs and EPC firms are owners and operators of power plants, process plants, refineries, pipelines, data centers and other industrial and commercial facilities such as wastewater treatment plants and hospitals. We focus our sales and marketing efforts on OEMs and EPC firms engaged by end users of our products, including the developers and operators of power plants, industrial and commercial facilities and data centers. Our Electrical Solutions segment is not materially impacted by seasonality, but rather is more impacted by the growth rates and cyclicality of the U.S. and international economies that we serve.

Services .  Our Services segment customers include major private and government-owned utilities throughout the U.S., as well as leaders in the U.S. pulp and paper and industrial sectors. We market our services using dedicated sales and marketing personnel as well as our experienced on-site operations personnel. We use our safety and service track record with long-term renewable contracts to expand our services and supplement existing contracts with small-to medium-sized capital projects. Our sales initiatives directly seek to apply operational strengths to specific facilities within our targeted industries and customers throughout the U.S. Our Services segment is materially impacted by seasonality, resulting in fluctuations in revenue and gross profit during our fiscal year. Generally, the second and fourth quarters are the peak periods for our Services segment, as those are periods of low electricity demand during which our customers schedule planned outages.

We depend on a relatively small number of customers for a significant portion of our revenue, and the loss of any of those customers would have a material adverse effect on our business. For a listing of our major customers, see “Note 16—Major Customers and Concentration of Credit Risk” to our consolidated financial statements.

Engineering, Design and Maintenance Capabilities

Mechanical Solutions and Electrical Solutions .  We provide original design, retrofit and upgrade engineering, installation, technical services and after sales maintenance and repair of our products. Our products are custom-designed and engineered to meet the specifications of our customers, including local, state, federal and international code requirements and certifications. Our engineers and designers use engineering and drafting programs such as AutoCAD®, Inventor® 3D modeling software, Solidworks® and other analytics applications.

Services .  Through our NQA-1 Program and other programs, we provide training, certifications and ongoing safety monitoring to all of our Services employees. We are one of a limited number of companies qualified to work anywhere in a U.S. nuclear facility and have been one of the leading providers of coatings at U.S. nuclear facilities for almost 40 years. In addition, we are one of a few contractors with the qualified and audited NQA-1 Program that is required to perform contract services at the new build reactors. For over 13 years, we have maintained a safety record in the top quartile of the industry, benefiting both us and our customers. We also maintain a broad range of professional certifications and memberships in national organizations relevant to the performance of many of the specialized services we provide.

Materials and Suppliers

The majority of materials we purchase are for our Mechanical Solutions and Electrical Solutions segments. The principal materials for our products are carbon steel plate, sheet steel, stainless steel products and other structural shapes, wire, cable and insulation. We obtain these materials from a number of U.S. and international suppliers. The markets for most of the materials we use are served by a large number of suppliers, and we believe that we can obtain required materials from more than one supplier. During 2016 and continuing into 2017, our relationships with certain suppliers to our domestic Mechanical Solutions and Electrical Solutions segments have been negatively impacted as we have delayed payments beyond contractual due dates due to liquidity constraints.

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Competition

Mechanical Solutions and Electrical Solutions .  We compete with a number of domestic and international companies. Some of our competitors are significantly larger than us and have significantly greater financial resources. Other competitors are small, typically privately held companies that are often less sensitive to project risk and onerous contract terms. The competitive landscape is defined not only by the specific product offering, but also by the geographic delivery footprint, total delivery cycle time (from order to title transfer), reputation, build quality, ability to design products to meet each customer’s unique specifications (including design elements and manufacturing methods impacting the total cost of ownership, designed ease of site installation and landed equipment footprint), and total project price. A project’s competitiveness can be influenced by any one or a number of these conditions.

Services .  Our competitors vary depending on plant geography and the scope of services to be rendered. Several national service providers, which are significantly larger and have significantly greater financial resources than we do, will often compete for larger maintenance and capital project opportunities that become available. These service providers include, among others, Day & Zimmermann and Chicago Bridge & Iron Company N.V. Additionally, smaller contractors that operate on a regional basis often compete for smaller opportunities associated with open shop labor sources. We believe that the key competitive factors in the services we offer are reputation, safety, price, service, quality, breadth of service capabilities and the ability to identify and retain qualified personnel. We believe our project management capabilities, including service diversity, long-term customer relationships, safety record and performance, differentiate us from our competitors. We also believe that the fact that we maintain a presence at several of our customers’ sites is a competitive advantage because it provides us with an intimate understanding of these facilities, which allows us to better identify our customers’ service needs. Specific to our customers that operate nuclear power plants, the barriers to entry include the requirement of NRC qualifications and safety standards.

Employees

As of December 31, 2016, we had 877 full- and part-time employees (excluding temporary staff and craft labor in our Services segment). The number of employees in our Services segment fluctuates greatly, depending on the timing and requirements for craft labor. Many of the craft labor employees for our Services segment are contracted through various union agreements. As of December 31, 2016, there were 732 craft labor employees for our Services segment, of which 443 were under collective bargaining agreements. At our Koontz-Wagner business, there are 44 employees who are covered under a collective bargaining agreement. We believe that our relationships with our employees, both full-time and temporary, are satisfactory. We are not aware of any circumstances related to our employees that are likely to result in a work stoppage at any of our facilities. In January 2017, we sold our Hetsco business, which resulted in a decrease in the number of our employees.

Insurance

We maintain insurance coverage for various aspects of our operations; however, we remain exposed to potential losses because we are subject to deductibles, coverage limits and self-insured retentions.

Typically, our contracts require us to indemnify our customers for third party injury, damage or loss arising from the performance of our services and provide for warranties for materials and workmanship. We may also be required to name the customer as an additional insured up to the limits of insurance available, or we may be required to purchase special insurance policies for specific customers or provide letters of credit in lieu of bonds to satisfy performance and financial guarantees on some projects.

We maintain performance and payment bonding lines to support our business. As of December 31, 2016, we maintained a revolving credit facility (as amended from time to time, the “Revolving Credit Facility”) that provided letters of credit. In June 2017, Centre Lane acquired the debt outstanding under the Revolving Credit Facility. We subsequently entered into the Centre Lane Facility and repaid the full balance outstanding under the Revolving Credit Facility. We require certain of our subcontractors to indemnify us and our customers and name us as an additional insured for activities arising out of such subcontractors’ work. We also require certain subcontractors to provide additional insurance policies, including surety bonds in favor of us, to secure such subcontractors’ work or as required by contract. It is possible that our insurance and the additional insurance coverage provided by our subcontractors will not fully protect us against a valid claim or loss under the contracts with our customers.

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Intellectual Property

We use a variety of trademarks, proprietary technologies and other intellectual property in the ordinary course of business in our segments. We rely upon our pending and issued patents, registered and unregistered trademark rights, nondisclosure and confidentiality agreements with our employees, subcontractors, customers and others and various other security measures to protect our intellectual property. Several patents related to exhaust systems will expire in 2017, a patent related to a filter element clip will expire in 2027, patents for an acoustic module enclosure door and an exhaust plenum for gas turbine will expire in 2032, a patent for an exhaust plenum for gas turbines will expire in 2033, and a patent for a method and apparatus for corrugating filter media will expire in 2034. We have patent applications pending for other products. We do not believe that any single patent or proprietary technology is material to our business, and we do not believe that our competitive position would be materially affected by competitors also using similar technologies and systems.

Compliance with Government Regulations

We are subject to certain federal, state and local environmental, occupational health, nuclear regulatory, export and product safety laws applicable in the countries in which we operate. We also purchase materials and equipment from third parties and engage subcontractors who are also subject to these laws and regulations. Below is a summary of certain laws and regulations applicable to our business.

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Environmental .  We are subject to extensive and changing environmental laws and regulations in the U.S. and in international jurisdictions where we do business. These laws and regulations relate primarily to air and water pollutants and the management and disposal of hazardous materials. We are exposed to potential liability for personal injury or property damage caused by any release, spill, exposure or other accident involving such pollutants, substances or hazardous materials.

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Health and Safety Regulations .   We are subject to the requirements of the U.S. Occupational Safety and Health Act and comparable state and international laws. Regulations promulgated by these agencies require employers and independent contractors who perform construction services, including electrical and repair and maintenance, to implement work practices, medical surveillance systems and personnel protection programs to protect employees from workplace hazards and exposure to hazardous chemicals and materials. In recognition of the potential for accidents within various scopes of work, these agencies have enacted very strict and comprehensive safety regulations.

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NRC .  Owners of nuclear power plants are licensed to build, operate and maintain those plants by the NRC. Their license requires that they qualify their suppliers and contractors to ensure that the suppliers and contractors comply with NRC regulations. Our Services segment must demonstrate to its customers that we will comply with NRC regulations related to quality assurance, reporting of safety issues, security and control of personnel access and conduct.

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Other Regulatory Matters .  To the extent we export technical services, data and products outside of the U.S., we are subject to U.S. and international laws and regulations governing international trade and exports. These include, but are not limited to, the Foreign Corrupt Practices Act and the Export Administration Regulations and trade sanctions against embargoed countries, which are administered by the Office of Foreign Assets Control within the U.S.

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Department of the Treasury .  A failure to comply with these laws and regulations could result in civil or criminal sanctions, including the imposition of fines, the denial of export privileges and suspension or debarment from participation in U.S. government contracts.

While we believe that we operate safely and prudently and in material compliance with all environmental, occupational health, nuclear regulatory, export and product safety laws, there can be no assurance that accidents will not occur or that we will not incur substantial liability in connection with the operation of our business. We do not anticipate any material capital expenditures or material adverse effect on earnings or cash flows as a result of complying with these laws.

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Financial Information about Geographic Areas

For a discussion of our financial information related to geographic areas, see “Part II—Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Note 18—Segment Information” to our consolidated financial statements.

Backlog

For a discussion of our backlog, see “Part II—Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Backlog” and “Item 1A. Risk Factors—Risk Factors Related to Our Operations.”

History

Global Power was incorporated in 2001 under the laws of the State of Delaware and became the successor to GEEG Holdings, LLC, which was formed as a Delaware limited liability company in 1998. We and all of our U.S. subsidiaries filed voluntary petitions for relief under Chapter 11 of Title 11 of the U.S. Bankruptcy Code on September 28, 2006 and successfully emerged from bankruptcy pursuant to an approved Plan of Reorganization on January 22, 2008. Upon emergence, we issued 5,266,885 shares of our new common stock to pre-petition equity holders in exchange for stock held before the bankruptcy. On that same date, pursuant to a rights offering, a private placement and related backstop and our Management Incentive Co-Investment Plan, we issued an additional 9,589,138 shares of our new common stock in exchange for $72.5 million in net proceeds. The applicable price of our common stock in the rights offering was $7.65 per share. As part of the plan, we also entered into a $150.0 million credit facility, which was terminated in 2012 in connection with our entry into the Revolving Credit Facility. In June 2011, we received a court order for final decree closing the Chapter 11 Filing.

Available Information

We file reports with the SEC, including our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished to the SEC pursuant to the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). However, we are not currently timely in our SEC reporting obligations. The general public may read and copy any materials that we file with the SEC at the SEC’s Public Reference Room located at 100 F Street N.E., Washington, DC 20549. The public may also obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site, www.sec.gov, which contains the Company’s reports, proxy and information statements and other information we have filed electronically with the SEC.

Copies of our annual reports are available at our website at www.globalpower.com under the heading “Investor Relations.” The information disclosed on our website is not incorporated by this reference and is not a part of this Form 10-K. We make available on our website, free of charge, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and any amendments to these reports as soon as reasonably practicable after we electronically file with or furnish the reports to the SEC. The following corporate governance related documents are also available free on our website:

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Code of Business Conduct and Ethics;

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Corporate Governance Guidelines;

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Related Party Transactions Policy;

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Charter of the Audit Committee;

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Charter of the Compensation Committee;

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Charter of the Nominating and Corporate Governance Committee; and

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Procedures for Reporting Complaints Regarding Accounting or Auditing Matters of Global Power Equipment Group Inc.

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Item 1A. Risk Factors

Our business, financial condition and results of operations may be impacted by one or more of the following factors, any of which could cause actual results to vary materially from historical and current results or anticipated future results.

Risk Factors Related to Our Liquidity and Capital Resources

If we do not timely pay amounts due and comply with the covenants under our credit facilities, our business, financial condition and ability to continue as a going concern would be materially and adversely impacted.

Our consolidated financial statements have been prepared assuming that we will continue as a going concern, which contemplates the realization of assets and satisfaction of liabilities in the normal course of business. We incurred net losses in 2016, 2015 and 2014 and expect to incur further net losses in the operation of our businesses. Prior to May 2015, we were dependent on borrowings under our Revolving Credit Facility as a source of funding our operations. However, coincident with our announcement in May 2015 that we would have to restate our previously filed Form 10-K for the year ended December 31, 2014 and would not be able to file our first quarter 2015 Form 10-Q in a timely manner, we were no longer in compliance with various covenants under our Revolving Credit Facility. As a result, we were unable to make incremental borrowings against the Revolving Credit Facility after that time and operated under a series of waivers of default under our Revolving Credit Facility. In addition, beginning on July 22, 2016, the administrative agent under our Revolving Credit Facility exercised rights that enabled it to control rights over certain of our accounts by implementing a cash dominion process to use receipts of collateral to directly pay down debt, while allowing us to borrow subject to certain restrictions. As of December 31, 2016, we had $2.8 million in cash and cash equivalents and $45.3 million due on our Revolving Credit Facility, with $6.5 million available borrowing capacity.

In June 2017, Centre Lane acquired the debt outstanding under the Revolving Credit Facility. We subsequently completed a refinancing process and entered into a 4.5-year senior secured term loan (the “Initial Centre Lane Facility”) with an affiliate of Centre Lane. We entered into a first amendment to the senior secured term loan (the “Centre Lane Amendment” and, together with the Initial Centre Lane Facility, the “Centre Lane Facility”) in August 2017, which provided for a first-out term loan, which matures in September 2018. We used the proceeds from the Initial Centre Lane Facility to repay the full balance outstanding under the Revolving Credit Facility. The terms of the Centre Lane Facility are less favorable to us than the terms of the Revolving Credit Facility, and, among other things, require higher interest payments and subject us to restrictive covenants that significantly limit our operating flexibility and encumber our assets. Any default on the Centre Lane Facility could result in the outstanding principal balance under such facility becoming immediately due and payable. We do not currently have sufficient cash on hand to repay the balance, and a failure to do so would constitute a default.

Upon a default under the Centre Lane Facility, our senior secured lenders would have the right to accelerate the then-outstanding amounts under such facility and to exercise their rights and remedies to collect such amounts, which would include foreclosing on collateral constituting substantially all of our assets and those of our subsidiaries. Accordingly, a default could have a material adverse effect on our business. If our lenders under the Centre Lane Facility exercise their rights and remedies to the extent permitted by such facility and applicable law, we would likely be forced to seek bankruptcy protection and our investors could lose the full value of their investment in our common stock.

Our inability to generate sufficient cash flow to satisfy our debt obligations, to meet the covenants of the Centre Lane Facility and/or to obtain alternative financing in such circumstances could materially and adversely affect our business, financial condition, results of operations and cash flows. For additional information, see “Part II—Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” and “Note 11—Debt” to our consolidated financial statements.

We may not generate sufficient cash resources to continue funding our operations.

In order to have sufficient cash to fund our operations and continue as a going concern, we will likely need to successfully implement one or more of the following initiatives: raise additional equity or debt capital; or sell assets outside the ordinary course of business. If we are unsuccessful in these liquidity generating initiatives and do not have sufficient cash resources to operate our business, we may be forced to significantly curtail or cease our operations or seek bankruptcy protection. For additional information, see “Part II—Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” and “Note 11—Debt” to our consolidated financial statements.

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Our independent registered public accounting firm may include an explanatory paragraph in its audit opinion that accompanies our financial statements for the year ended December 31, 2017 indicating that our debt maturity and liquidity position raises substantial doubt about our ability to continue as a going concern.

In June 2017, Centre Lane acquired the debt outstanding under the Revolving Credit Facility, and we repaid the full outstanding balance under the Revolving Credit Facility and entered into the Initial Centre Lane Facility, as amended in August 2017. If we are unable to pay amounts due under the Centre Lane Facility, fail to satisfy the restrictive covenants under the Centre Lane Facility or otherwise breach or fail to develop and implement plans sufficient to alleviate the adverse effects of the foregoing before the completion of the audit of our consolidated financial statements for the year ended December 31, 2017, our independent registered public accounting firm may include an explanatory paragraph in its audit opinion that accompanies our 2017 financial statements, indicating that the terms of our indebtedness and related liquidity position raise substantial doubt about our ability to continue as a going concern.

The presence of any such explanatory paragraph may, among other negative effects, make it difficult for us to continue to negotiate acceptable payment terms with our vendors and customers or may result in one or more of our suppliers making demand for adequate assurance, which could include a demand for payment in advance. If we are unable to negotiate acceptable payment terms with our customers, or if any of our material suppliers were to successfully demand payment in advance, and we were unable to internally generate or externally raise cash in sufficient amounts to cover our resulting reduced liquidity, it could have a material adverse effect on our liquidity and may force us to seek bankruptcy protection. Other effects of such an explanatory paragraph may include difficulty obtaining future financing and negative perceptions among our customers and employees.

If our independent registered public accounting firm fails to stand for reappointment, any resulting need to engage a new auditor could significantly delay the filing of our future annual and quarterly reports with the SEC and adversely impact our business.

Our independent registered public accounting firm goes through client reacceptance procedures annually to determine if they are willing to stand for reappointment. These procedures include, among other items, a risk assessment. Due to our risk profile, there is a chance we will not meet their minimum criteria for reacceptance. If we are unable to satisfy the requirements of those client reacceptance criteria, we may be required to change auditors, which could significantly delay the filing with the SEC of our 2017 annual and quarterly reports on Form 10-K or 10-Q, as applicable, and subsequent reports. Any such delay could result in a breach of the covenants in the Centre Lane Credit Agreement, reduce our trade credit based on our inability to deliver recent financial statements to our key vendors and delay our ability to become current in our SEC filings.

The limitations and covenants contained in the Centre Lane Facility constrain our ability to borrow additional money, sell assets and make acquisitions, which may impair our ability to fully implement elements of our business strategy and otherwise adversely affect our liquidity and financial condition.

The Centre Lane Facility contains a number of limitations and covenants that limit our ability and that of our subsidiaries to:

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borrow money or make capital expenditures;

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incur liens;

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pay dividends or make other restricted payments;

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merge or sell assets;

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enter into transactions with affiliates; and

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make acquisitions or investments.

The Centre Lane Facility provides for variable rates of interest. We will be liable for the greatest amount of interest permitted under such rates. Any increase in the London Interbank Offered Rate (“LIBOR”) may result in an increase in our interest rates on our outstanding debt and therefore negatively affect our cash flow and financial condition. Our obligations

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under the Centre Lane Facility are guaranteed by all of our wholly owned domestic subsidiaries, subject to customary exceptions. Our obligations are secured by first priority security interests on substantially all of our assets and those of our wholly-owned domestic subsidiaries. This includes 100% of the voting equity interests of our domestic subsidiaries and certain specified foreign subsidiaries and 65% of the voting equity interests of other directly owned foreign subsidiaries, subject to customary exceptions.

The Centre Lane Facility also includes additional restrictive covenants, including covenants that require us to maintain specified financial ratios beginning September 30, 2018. These restrictions could adversely affect our business because they include, among other things, limitations on our ability to take advantage of financings, mergers, acquisitions and other corporate opportunities that may be beneficial for our business. These restrictions also could have a material adverse effect on our ability to make capital expenditures and business acquisitions, restructure or refinance our indebtedness, accept certain business opportunities from customers or seek additional capital.

If we do not comply with the restrictive covenants, including failing to satisfy the required financial ratios, or obtain waivers as needed, our lenders could accelerate our debt and foreclose on our assets, and our shareholders may lose the full value of an investment in our common stock. Our ability to comply with the restrictive covenants in the Centre Lane Facility depends upon our ability to generate adequate earnings and operating cash flows or sell assets, which will be subject to our ability to successfully implement our business strategy, as well as other general economic and competition conditions and financial, business and other factors, many of which are beyond our control. We cannot assure investors that our business will generate sufficient cash flow from operations to fund our cash requirements and debt service obligations, and we may, in the future, face significant liquidity constraints. For additional information, see “Part II—Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” and “Note 11—Debt” to our consolidated financial statements .

If we become unable to obtain adequate surety bonding, it could reduce our ability to bid on new work, which could, in turn, have a material adverse effect on our future revenue and business prospects.

In line with industry practice, we are often required to provide performance and surety bonds to customers. These bonds provide credit support for the client if we fail to perform our obligations under the contract. If security is required for a particular project and we are unable to obtain a bond or letter of credit on terms commercially acceptable to us, we may not be able to pursue that project. In addition, bonding may be more difficult to obtain in the future or may only be available at significant additional cost. Our ability to obtain surety bonds is currently constrained, and any continued inability to obtain surety bonds on commercially reasonable terms could have a material adverse effect on our revenue and business prospects.

We are currently unable to obtain letters of credit, which could reduce our ability to bid on new work, which could have a material adverse effect on our future revenue and business prospects.

In line with industry practice, we are often required to provide letters of credit. These letters of credit provide credit support for the client if we fail to perform our obligations under the contract. The Centre Lane Facility does not provide letters of credit. If security is required for a particular project and we are unable to obtain a bond or letter of credit on terms commercially acceptable to us, we may not be able to pursue that project. Any continued inability to obtain surety bonds and letters of credit on commercially reasonable terms could have a material adverse effect on our revenue and business prospects.

We have recorded write-downs of our goodwill and other indefinite-lived assets. If we were required to write-down additional amounts, our results of operations and stockholders’ equity could be materially adversely affected.

We are required to review goodwill and indefinite-lived intangible assets for potential impairment at least annually in accordance with GAAP. As a result of our annual goodwill impairment analysis as of October 1, 2016, we determined that the fair value of our reporting units each exceeded their respective book values, and, accordingly, no impairment charge was necessary for the year ended December 31, 2016. During 2015, our common stock traded at a market price that was lower than its book value for a prolonged period. As a result of this impairment indicator, we recorded a non-cash charge of $47.2 million for the impairment of goodwill and trade names in the third quarter of 2015. We had $51.0 million of goodwill and trade names remaining on our consolidated balance sheet as of December 31, 2016. If we experience declines in revenue and gross profit or do not meet our current and forecasted operating budget, we may be subject to additional goodwill and/or other intangible asset impairments in the future. Because of the significance of our goodwill and intangible assets, and based on the magnitude of historical impairment charges, any future impairment of these assets could have a material adverse effect

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on our financial results. For additional information, see “Note 7—Goodwill and Other Intangible Assets” to our consolidated financial statements.

Changes to tax regulations, laws, accounting principles, future business operations or examinations by tax authorities can adversely impact our provision for income taxes and ability to use deferred tax assets.

Our ability to use our deferred tax assets is subject to volatility and could be adversely affected by earnings differing materially from our projections, changes in the valuation of our deferred tax assets and liabilities, expiration of or lapses in tax credits, changes in ownership as defined by Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”), and outcomes as a result of tax examinations or changes in tax laws, regulations and accounting principles. As a result, our income tax provisions are also subject to volatility from these changes, as well as changes in accounting for uncertain tax positions, or interpretations thereof.

For instance, on December 31, 2014, we recorded $44.9 million of non-cash valuation allowances on our deferred tax assets recorded in 2014 and prior years. We also recorded $16.9 million and $21.9 million of additional valuation allowances on substantially all U.S. and certain foreign deferred tax assets recorded during the years ended December 31, 2016 and 2015, respectively. These deferred tax assets remain available for use in future periods and will reduce our current tax expense in the year in which taxable income is generated to the extent that the deferred tax assets are not eliminated or limited under Code Sections 382 and 383.

Significant judgment is required in determining the recognition and measurement attributes prescribed in GAAP related to accounting for income taxes. In addition, GAAP applies to all income tax positions, including the potential recovery of previously paid taxes, which, if settled unfavorably, could adversely impact our provision for income taxes or additional paid in capital. We could also be subject to examinations of our income tax returns by the Internal Revenue Service and other tax authorities. We assess the likelihood of adverse outcomes resulting from these examinations in determining the adequacy of our provision for income taxes. There may be exposure that the outcomes from these examinations will have an adverse effect on our operating results and financial condition.

Our ability to use NOL carryforwards or other tax attributes may be subject to limitations under Sections 382 and 383 of the Code.

As of December 31, 2016, we have U.S. federal tax NOL carryforwards, foreign tax credits and general business tax credits of $157.9 million, $9.6 million and $0.4 million respectively. Generally, NOL, foreign tax credit and general business credit carryforwards may be used to offset future taxable income and thereby reduce or eliminate U.S. federal income tax liabilities. Section 382 of the Code limits a corporation’s ability to utilize NOL carryforwards to reduce tax liabilities if the corporation undergoes an “ownership change.” For these purposes, an ownership change is deemed to occur if there has been a change of more than 50% in the ownership of shareholders owning 5% or greater of the value of a corporation’s stock over a three year period. Code Section 383 applies the same limitations to foreign tax credit, general business credit and capital loss carryforwards after an ownership change.

Based upon our review of the issue, we have not experienced an ownership change as defined under Code Section 382 as of December 31, 2016. If additional equity is issued in the future, an ownership change pursuant to Code Section 382 may occur. In addition, an ownership change under Code Section 382 could be caused by circumstances beyond the Company’s control, such as market purchases or sales by certain 5% or greater shareholders of our stock. There is also a risk that, due to regulatory changes, such as suspensions on the use of NOLs or other unforeseen reasons, our existing NOLs could expire or otherwise be unavailable to offset future income tax liabilities. Thus, there can be no assurance that the Company will not experience an ownership change which would significantly limit the utilization of the Company’s NOL, foreign tax credit or general business credit carryforwards in calculating future federal tax liabilities.

We have incurred losses from operations in recent fiscal years, expect to incur further losses in the next several years and may not be able to achieve or maintain our profitability.

We incurred net losses in 2016, 2015 and 2014, and we expect to incur further net losses in the operation of our business. We incurred significant expenses during 2016 and 2015 related to, among other things, legal and accounting costs associated with the restatement of certain prior financial results. We have incurred, and are likely to continue to incur, additional costs for legal proceedings associated with the restatement. In addition, during 2014, we entered into an agreement to fulfill a project with a partner, whereby we were jointly and severally liable for the entire project. The project had certain liquidated damage clauses, including a clause that allows the customer the right to be made whole should the product not

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meet certain criteria. This can include a complete rebuild of the project. Although there is a wide range of potential liability, we accrued $4.4 million for the year ended December 31, 2016. See “Note 15—Commitments and Contingencies” to our consolidated financial statements. Investors should not consider our historical operating results as indicative of future operating results.

In addition, our Electrical Solutions segment may incur losses resulting from Hurricane Harvey in August 2017. The hurricane significantly impacted production at our Koontz-Wagner facility in Houston, Texas, which was almost completely shut down for nearly one week. Although work has resumed at that facility, we could incur substantial losses due to production delays, which are described in more detail below.

In addition, to become and remain profitable, we must successfully generate revenue, which requires us to, among other things, increase our cash flows from operations. A lack of capital resulting from any inability to generate sufficient cash flows from operations to fund our business and service our indebtedness would negatively impact our ability to achieve or maintain profitability.

If our profits do not increase to offset these increases in costs, our operating results will be adversely affected. We cannot provide assurance that we will be able to achieve or maintain profitability in the future.

Any inability to finance our business or repay the Centre Lane Facility, including due to deterioration of the credit markets, could adversely affect our business.

We intend to finance our existing operations and initiatives with existing cash and cash equivalents, investments, cash flows from operations and the Centre Lane Facility. In June 2017, we repaid the balance due under the Revolving Credit Facility; however, the Centre Lane Facility contains high interest rate payments, a number of restrictive covenants and other terms that limit our operating flexibility, including our ability to enter other investments or new lines of business. In addition, deterioration in the credit markets could adversely affect the ability of many of our customers to pay us on time and the ability of many of our suppliers to meet our needs on a competitive basis. Any inability to pay amounts due under the Centre Lane Facility or access necessary additional funds on acceptable terms or at all may negatively impact our business or operations.

We are exposed to market risks from changes in interest rates and foreign currency exchange rates.

We are subject to market risk exposure related to changes in interest rates and fluctuations in foreign currency exchange rates. Portions of our operations are located in foreign jurisdictions and a portion of our billings is paid in foreign currencies. Changes in foreign currency exchange rates or weak economic conditions in foreign markets could therefore cause fluctuations in revenue derived from foreign operations. For example, many foreign currencies have decreased in value against the U.S. dollar. Our receipt of such devalued foreign currencies for a project as to which a significant portion of our costs are incurred in U.S. dollars would adversely affect our revenue, as expressed in U.S. dollars, and our profit from that project. In addition, sales of products and services are affected by the value of the U.S. dollar relative to other currencies. Changes in foreign currency rates can also affect the costs of our products purchased or manufactured outside the U.S. Changes in interest rates or foreign currency exchange rates could have a material adverse effect on our results of operations and financial position.

Risk Factors Related to the Restatement of Prior Period Financial Statements and Our Internal Control over Financial Reporting

Audit, investigation, legal and expert services regarding the restatement and audit of our historical financial results, as well as recent legal proceedings, have required substantial attention from the Board of Directors (the “Board of Directors” or “Board”), have diverted financial resources away from the Company and management’s attention away from our usual business operations and may continue to adversely affect customer relationships and overall business, results of operations and financial condition.

Our Board, Audit Committee and members of management have devoted and expect to continue to devote substantial internal and external resources to legal matters resulting from the restatement and remediation efforts, the preparation and filing of this Form 10-K and the preparation and filing of future periodic reports. As a result of these efforts, we have incurred and expect that we will continue to incur significant incremental fees and expenses for additional audit services, financial and other consulting services and legal services, as well as the implementation and maintenance of systems and processes that will need to be updated, supplemented or replaced. These expenses, as well as the substantial time devoted

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by our Board and management toward identifying, addressing and remediating any internal weaknesses and legal costs related to our internal investigation and the ongoing SEC investigation, pending litigation and other actions related to the restatement, have had and could continue to have a material adverse effect on our business, results of operations and financial condition. Any future inquiries from legal proceedings or other actions by the SEC as a result of the restatement of our historical financial statements will, regardless of the outcome, likely consume a significant amount of our resources in addition to those resources already consumed in connection with the restatement itself and ongoing litigation matters. In addition, the restatement of our historical financial statements, delisting of our common stock from the New York Stock Exchange (“NYSE”) and constrained liquidity have hindered our ability to attract new customers and strained relationships with certain existing customers, making it challenging to increase the volume and scope of our work.

A pending putative securities class action, as well as an ongoing SEC investigation, could divert management’s focus, result in substantial expenses and have an adverse impact on our reputation, financial condition and results of operations.

The matters that led to our internal investigation and the restatement of our historical financial results expose us to greater than typical risks associated with litigation, regulatory proceedings and government enforcement actions. For instance, a putative shareholder class action is pending in the U.S. District Court for the Northern District of Texas alleging violations of the federal securities laws in connection with matters related to the restatement of our financial results. The second consolidated amended complaint filed by the lead plaintiff names the Company and three of our former officers as defendants. Please see “Item 3. Legal Proceedings” and “Note 15—Commitments and Contingencies” to our consolidated financial statements. We cannot predict the outcome of the lawsuit, the magnitude of any potential losses or the effect such litigation may have on us or our operations. Regardless of the outcome, lawsuits and investigations involving us, or our current or former officers and directors, could result in significant expenses and divert attention and resources of our management and other key employees. We could be required to pay damages or other penalties or have injunctions or other equitable remedies imposed against us or our current or former directors and officers. In addition, we are generally obligated to indemnify our current and former directors and officers in connection with lawsuits, governmental investigations and related litigation or settlement amounts. Such amounts could exceed the coverage provided under our insurance policies. Any of these factors could harm our reputation, business, financial condition, results of operations or cash flows.

In addition, the Division of Enforcement of the SEC is conducting a formal investigation into possible securities law violations by us relating to our disclosures concerning certain financial information, including our cost of sales and revenue recognition, as well as related accounting issues. We are cooperating with the SEC in its investigation. Please see “Item 3. Legal Proceedings.” At this time, we cannot predict the outcome or the duration of the SEC investigation or any other legal proceedings or any enforcement actions or other remedies that may be imposed on us as a result of the SEC investigation. Any action by the SEC could result in sanctions against us and certain of our current and former officers and directors. A protracted investigation could impose substantial additional costs and distractions, regardless of its outcome. Furthermore, publicity surrounding the foregoing or any enforcement actions resulting from the SEC’s investigation, even if ultimately resolved favorably for us, could have a material adverse impact on our reputation, business, financial condition and results of operations.

Our failure to maintain effective internal control over financial reporting and disclosure controls and procedures could have a material adverse effect on our business.

We are required to maintain internal control over financial reporting and disclosure controls and procedures in order to provide reasonable assurance regarding the reliability of financial reporting and the preparation of our consolidated financial statements for external purposes in accordance with U.S. generally accepted accounting principles (“GAAP”). In connection with our internal investigation and the restatement, we determined that we had material weaknesses in our internal control environment and internal control activities. As of December 31, 2016, these material weaknesses continued to exist. We therefore concluded that, as of the end of the period covered by this report, our internal control over financial reporting and our disclosure controls and procedures were not effective. Until we fully remediate these deficiencies, it may be more difficult for us to report results accurately and on time. While we are working to address the internal control over financial reporting and other issues raised by our restatement process, we cannot be certain that our efforts will be successful or that we will be able to maintain adequate controls over our financial processes and reporting in the future. As of the date of this filing, the remediation process is ongoing. See “Part II—Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure” and “Part II—Item 9A. Controls and Procedures.”

Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur undetected, and it is possible that additional significant deficiencies or material weaknesses in our internal control over financial reporting may be identified in the future. Any failure of our internal controls could result in additional material

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misstatements in our consolidated financial statements, significant deficiencies, material weaknesses, costs, failure to timely meet our periodic reporting obligations and a loss of investor confidence. It would also adversely affect the results of periodic management evaluations and could have a material adverse effect on our business, financial condition, results of operations or cash flow. If our internal controls are deemed inadequate in the future, our current external auditors could resign, and the process of retaining new auditors could limit our access to capital for an extended period of time.

Our failure to implement new accounting standards during the required time periods could result in our inability to file future periodic reports in a timely manner and lead to additional material weaknesses in internal control over financial reporting, beyond those disclosed in this report.

The FASB has issued new accounting guidance on revenue recognition that will change both the way revenue is accounted for and disclosed and will result in changes in internal controls. These changes in internal controls will reach beyond finance and accounting and will have an impact on other areas of our business, such as information technology and operations. Due to the delay in filing our 2015 Report and this Form 10-K, we have recently begun assessing the standard and its impact on our financial statement reporting and operations. Although we have begun initial discussions with external resources to assist us in our implementation, at this time, we are unable to determine how long the assessment and implementation will take to complete.

Our business operations depend upon our new senior management team and the ability of our other employees to successfully perform their roles.

We have experienced significant turnover in our senior management in recent years. In March 2015, we announced the departure of our former President and Chief Executive Officer (“CEO”) and the appointment of Terence J. Cryan as our new President and CEO. In September 2015, we announced the departure of our former Chief Financial Officer and the appointment of Craig E. Holmes as Senior Vice President of Finance. In March 2017, we announced the retirement of Timothy M. Howsman, who served as our Principal Financial Officer, the subsequent appointment of Mr. Holmes as the Company’s Chief Financial Officer and Principal Financial Officer and the appointment of Mark F. Jolly, who had been serving as Vice President Finance, as the Company’s Chief Accounting Officer and Principal Accounting Officer. In July 2017, we announced the resignation of Mr. Cryan as our President and CEO and the appointment of Mr. Holmes and Tracy D. Pagliara, formerly our Senior Vice President, Chief Administrative Officer, General Counsel and Secretary, as Co-Presidents and Co-CEOs. Charles E. Wheelock was simultaneously appointed Vice President, Administration, General Counsel and Secretary. In August 2017, we announced the cessation of Mr. Jolly’s employment as our Chief Accounting Officer and Principal Accounting Officer and the appointment of Erin Gonzalez as our Chief Financial Officer and Principal Financial and Accounting Officer. In addition, we have had significant turnover of management and other personnel in our domestic Mechanical Solutions and Electrical Solutions segments.

We have made significant changes to our business in a short interval of time, which can be disruptive to our employees and business, and may add to the risk of control failures, including a failure in the effective operation of our internal controls over financial reporting or our disclosure controls and procedures. Changes to company strategy can create uncertainty, may negatively impact our ability to execute quickly and effectively, and may ultimately be unsuccessful.

As new employees gain experience in their roles, we could experience inefficiencies or a lack of business continuity due to loss of historical knowledge and a lack of familiarity of those employees with business processes, operating requirements, policies and procedures (some of which are new) and key information technologies and related infrastructure used in our day-to-day operations and financial reporting. It is important to our success that these key employees quickly adapt to, and excel in, their new roles. Their failure to do so could result in operational and administrative inefficiencies and added costs that could adversely impact our results of operations, our stock price and our customer relationships and may make recruiting for future management positions more difficult. In addition, if we were to lose the services of any one or more key employees, whether due to death, disability or termination of employment, our ability to successfully implement our business strategy, financial plans and other objectives could be significantly impaired. Any of the above factors could also impede our ability to remediate the material weaknesses in our internal controls. See “Part II—Item 9A. Controls and Procedures.” If we do not effectively manage our business through these management transitions, our business and results of operations could be adversely affected.

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As a result of our inability to prepare and timely file periodic reports, we face limitations in our ability to issue securities and engage in certain transactions, which could adversely affect our business.

We are required to comply with Section 13 of the Exchange Act. We did not file any Quarterly Reports on Form 10-Q or any Annual Report on Form 10-K from the May 2015 announcement of our intention to restate our financial results until March 15, 2017, when we filed the 2015 Report, which restated our prior period financial statements and provided our 2015 financial information. Even after the filing of this Form 10-K, we will remain delinquent in our SEC reporting obligations because we have not filed any of our periodic reports for our 2017 quarterly periods. We will not be eligible to use “short form” registration statements that would allow us to incorporate by reference our SEC reports into our registration statements, or to use “shelf” registration statements, until we have filed all of our periodic reports in a timely manner for a period of 12 months. After we become current in our SEC filing obligations, we may use Form S-1 to register a sale of our stock to raise capital. However, such registration statement cannot be used until we are current in our disclosure obligations, and even then, would likely increase transaction costs and be time consuming, which may adversely affect our ability to raise capital in a timely manner. Our failure to remain current in our SEC reporting obligations has resulted in our inability to permit use of our existing registration statement on Form S-8 or file a new registration statement on Form S-8, which would be used to register the issuance and sales of securities under our equity incentive plans. As a result, our ability to grant awards to adequately incentivize and retain skilled employees, including key employees needed to complete the remediation of the material weaknesses in our internal controls, could be adversely affected. See “Part II—Item 9A. Controls and Procedures.” In addition, delays in filing our periodic reports may impact our ability to solicit shareholder consent for certain potential capital-raising transactions. These restrictions could increase the costs of selling securities publicly, significantly delay such sales or transactions and adversely affect our business.

We have not held an annual meeting of our shareholders since May 2015. As a result, our shareholders have not had the opportunity to elect directors since May 2015, and we cannot assure investors when such an opportunity will arise.

Our bylaws and the Delaware General Corporation Law state that we must hold an annual meeting of our shareholders for the election of directors and other business as may be properly brought before the meeting. However, because of our delayed periodic report filings, we have not held an annual meeting of our shareholders since May 2015. Therefore, our shareholders have not had the opportunity to vote in an election of our directors since that time. We plan to hold an annual shareholders’ meeting after we become current in our SEC reporting obligations; however, if we do not become current in our SEC reporting obligations, or if we otherwise fail to hold annual shareholders’ meetings in the future, it may be more challenging for our shareholders to vote on the election of our directors.

Risk Factors Related to Our Operations

A substantial portion of the revenue from our Services segment is related to services performed at nuclear power plants, and reduced investment in or increased regulation related to nuclear power plants would have a material adverse effect on our business and prospects.

The demand for the services provided at nuclear power plants by our Services segment is directly tied to the number of nuclear power facilities that utilize our Services segment. Additionally, U.S. nuclear capacity and electricity generation are expected to decline due to continuing low natural gas prices and the rapid expansion of low cost renewable energy and new technologies in the U.S., displacing more traditional sources of power, including nuclear power. Public support for nuclear power has also softened because of pricing, environmental and safety concerns. Declining demand for U.S. nuclear power generation and related construction and maintenance budgets would have a material adverse effect on our business, operations and cash flow.

Very few new nuclear reactors are under construction in the U.S., and several nuclear reactors are undergoing decommissioning. Pricing pressure has resulted in a decrease in the maintenance budgets for existing nuclear plants. Other new construction projects are being discontinued or reevaluated. For example, in July 2017, the owners of V.C. Summer Units 2 and 3 filed a petition with the Public Service Commission of South Carolina seeking approval of an abandonment plan of such units. Although they later voluntarily withdrew the petition, they expressed uncertainty as to whether they could recover their costs for the new units, and the ultimate fate of the project is unclear.

In addition, decreases in state and federal government subsidies and increased regulation would also negatively impact the demand for nuclear power and the services we provide. For instance, the NRC has broad authority under federal law to impose safety-related and other licensing requirements for the operation of nuclear generation facilities, and events at

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nuclear facilities or other events impacting the industry generally could lead to additional requirements and regulations on all nuclear generation facilities and could negatively impact the demand for nuclear power and the services we provide.

If our costs exceed the estimates we use to set the fixed-prices of our contracts, our earnings will be reduced.

The contracts under which we sell our products are generally fixed-price contracts, most of which are “lump sum bid” contracts. Fixed-price contracts present certain inherent risks, including the possibility of ambiguities in the specifications received, erroneous or incomplete cost estimates, problems with new technologies and economic and other changes that may occur over the contract period.

In addition, we have a limited ability to recover any cost overruns. Contract prices are established based in part on our projected costs, which are subject to a number of assumptions. The costs that we incur in connection with each contract can vary, sometimes substantially, from our original projections. Because of the large scale and complexity of our contracts, unanticipated changes may occur, such as customer budget decisions, design changes, delays in receiving permits and cost increases, as well as delays of drawings and equipment in delivery of our products. Unanticipated cost increases or delays may occur as a result of several factors, including:

·

increases in the cost of commodities (primarily steel plate), labor or freight;

·

unanticipated technical problems (for example, difficulties in designing products that integrate well with new generations of gas turbines);

·

suppliers’ or subcontractors’ failure to perform (for example, substandard welding by a subcontractor), requiring modified execution plans or re-work; and

·

decreases in labor efficiency realized.

We often are contractually subject to liquidated damages or late delivery fees in the event that we fail to perform our obligations in a timely manner. Such damages or fees can be significant and may have a negative impact on our profit margins and financial results.

Cost increases or overruns that we cannot pass on to our customers or our payment of liquidated damages or other penalties under our contracts will lower our earnings. In addition, increases in commodity prices may adversely affect our gross margins.

If we are unable to control the quality or timely production of products manufactured or services provided because of internal operational issues or poor subcontractor performances, our reputation could be adversely affected, and we could lose customers. In the event of subcontractor insolvency, if we are unable to recover any advance progress payments made to subcontractors, our profitability could be adversely affected.

We rely on subcontractors to manufacture and assemble a substantial portion of our products and services. Our subcontractors account for a significant percentage of our manufacturing and service costs. The quality and performance of our subcontractors is not entirely under our control. Our subcontractors may not always meet the requisite level of quality control or our delivery schedules. The failure of our subcontractors to produce quality products or perform quality services in a timely manner could adversely affect our reputation and result in the cancellation of orders for our products, significant warranty and repair costs and the loss of customers. In addition, our contracts with customers may contain liquidated damages or late delivery fees, and triggering such provisions could result in significant financial penalties, or, even if not triggered, could affect our ability to recognize revenue in a given period. Due to on going operational adjustments, we currently have several projects in the Electrical Solutions segment that may result in significant claims under such provisions.

Other potential consequences of the failure of our subcontractors to meet our standards include a potential need to move subcontract manufacturing to other vendors in different locations, resulting in increased costs. We also make advance progress payments to subcontractors in anticipation of their completion of our orders and may be unable to recover those advances if a subcontractor fails to complete an order. The occurrence of any of the above may adversely affect our profitability and cash flow.

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We operate our business in regions subject to natural disasters, including hurricanes, and other severe catastrophic events, such as acts of war and terrorism, and any disruption to our business resulting from natural disasters will adversely affect our revenue and results of operations.

We operate our business in regions subject to natural disasters and other severe catastrophic events. Any disaster could adversely affect our ability to conduct business and provide products and services to our customers, and the insurance we maintain may not be adequate to cover our losses resulting from any business interruption resulting from a natural disaster or other catastrophic events.

Most recently, our Koontz-Wagner operations in Houston, Texas were impacted by Hurricane Harvey in August 2017. The severe weather conditions directly affected production at that facility, which was largely shut down for nearly one week. Although work has resumed at that facility, the hurricane resulted in significant production delays, and we are currently assessing the impact this will have on our contractual obligations to certain customers. Should the impact result in delivery delays, this could result in liquidated damages to be assessed or the potential loss of customers. In addition, many of our employees have been displaced by the hurricane or have departed to assist with the hurricane recovery efforts. At this time, we do not know when we will have a full staff.

We may declare the existence of a force majeure event under our contracts with certain customers, but we could incur liabilities for failure to meet the requirements of those agreements, especially if the counterparties dispute our invocation of the force majeure provisions of those agreements.

It will be several weeks or months before we are able to fully assess the extent of the damage and the implications to our business. Currently, there is uncertainty as to the magnitude of the losses associated with this event and whether such losses would have a material effect on our consolidated financial statements.

These and any future disruptions to our operations, including acts of war, terrorism or other force majeure, could have a material adverse impact on our liquidity, financial condition and results of operations.

We may not be able to compete successfully against current and future competitors.

The industry in which we operate is highly competitive. Some of our competitors and potential competitors are less leveraged than we are, have greater financial or other resources than we have and may be better able to withstand adverse market conditions within the industry. Our competitors typically compete aggressively on the basis of pricing, and such competition may continue to impact our ability to attract and retain customers or maintain the rates we charge. To the extent that we choose to match our competitors’ prices, it would result in lower margins and, as a result, could harm our results of operations. Should we choose not to match, or remain within a reasonable competitive distance from, our competitors’ pricing, we may face a loss of sales volume and, as a result, such decision could harm our results of operations. In addition, our future growth will depend on our ability to gauge the direction of the commercial and technological progress in our markets that may be adopted by our competitors, as well as our ability to fund and successfully develop, manufacture and market new and improved products in a changing environment. However, any such developments would likely require additional financing, and we may not be able to obtain the necessary financing on acceptable terms, if at all. A failure to keep pace with our competitors or the technological innovations in the markets we serve could have a material adverse impact on our business.

Our profitability and financial condition may be adversely affected by risks associated with the energy and power generation industries, such as price and supply and demand fluctuations for oil and natural gas.

Our Mechanical Solutions and Electrical Solutions segments are exposed to risks associated with the use of natural gas and oil as energy sources. These risks, which are not subject to our control, include the volatility of natural gas and oil prices, the lower demand for power generation from natural gas, a slowdown in the construction of oil and gas infrastructure, a general softening of the downstream industry and a slowdown in the discovery or development of natural gas and/or oil reserves. While higher natural gas and oil prices generally result in increased infrastructure spending by customers in our Mechanical Solutions and Electrical Solutions segments, sustained high energy prices could be an impediment to economic growth and could result in reduced infrastructure spending by such customers. Higher prices could also decrease spending on power generation equipment and related infrastructure, an important component to the success of our Mechanical Solutions and Electrical Solutions segments. Further, if the discovery or development of natural gas and/or oil reserves slows or stops, customers would likely reduce capital spending on mainline pipe, gas gathering and compressor systems and other related infrastructure, resulting in less demand for the portfolio of products of our Mechanical Solutions and Electrical Solutions

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segments. If the profitability of those segments were to decline, our overall profitability, results of operations and cash flows could also be adversely affected. The significant increase in the North American supply of natural gas due to ongoing development of unconventional shale formations has also resulted in low natural gas prices for the past several years. Lower natural gas and oil prices sometimes result in decreased spending by certain customers in our Mechanical Solutions and Electrical Solutions segments, which could likewise adversely affect our overall profitability, results of operations and cash flows. Our Services segment is also sensitive to the price of natural gas. Low natural gas prices mean gas-fired power generation is more competitive with coal and nuclear power generation, resulting in reduced spending by those customers.

Our future revenue and operating results may vary significantly from reporting period to reporting period.

Our quarterly and annual revenue and earnings have varied in the past and are likely to vary in the future. Our product sales contracts contain customer-specific delivery terms that, coupled with other factors beyond our control, may result in uneven recognition of revenue and earnings over time. Customer-imposed delays and changes to billing terms can significantly impact the timing of revenue recognition and lengthen our cash conversion cycle. Due to our relatively large average contract size, our product sales volume during any given period may be concentrated in relatively few orders, intensifying the magnitude of these fluctuations. Furthermore, some of our operating costs are fixed. As a result, we may have limited ability to reduce our operating costs in response to unanticipated decreases in our revenue or the demand for our products in any given reporting period. Therefore, our operating results in any reporting period may not be indicative of our future performance. Because we must make significant estimates related to potential costs when we recognize revenue on a percentage-of-completion basis, these costs may change significantly from reporting period to reporting period based on new project information. In addition, most of our product revenue is based on fixed-price contracts, and the relative profitability can vary significantly between contracts. As a result, our profitability can vary from reporting period to reporting period based on the specific contract mix.

We may not be able to maintain or expand our business outside of the U.S. due to numerous factors outside our control.

Our international operations are subject to a number of risks inherent in doing business outside the U.S., including:

·

labor unrest;

·

regional economic uncertainty;

·

political instability, including unrest in the Middle East;

·

relations between the U.S., China and Russia;

·

restrictions on the transfer of funds into or out of a country;

·

currency exchange rate fluctuations;

·

export duties and quotas;

·

expropriations;

·

U.S. and international customs, tariffs and other regulations;

·

current and changing regulatory environments;

·

potentially adverse tax consequences;

·

availability of financing;

·

unfavorable commercial terms and conditions; and

·

potential for adverse dispute resolution outcomes.

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These factors may impact our ability to meet product delivery commitments in foreign countries that could result in a decline in revenue or profitability and could adversely affect our ability to maintain or expand our business outside the U.S.

We conduct our operations on a worldwide basis and are subject to risks associated with doing business outside the U.S.

We have manufacturing subcontractors in many areas outside of the U.S., including China, South Korea, Indonesia, Poland, the Middle East and Mexico, and increasing our manufacturing footprint to localize in emerging markets is an important element of our strategy. There are a number of risks associated with doing business internationally, including, but not limited to, the following:

·

exposure to local economic and political conditions;

·

the impact of social unrest, such as risks of terrorism or other hostilities;

·

currency exchange rate fluctuations and currency controls;

·

export and import restrictions; and

·

the potential for shortages of trained labor.

In particular, there has been social unrest in the Middle East and Mexico, and any increased violence in or around our subcontractors’ manufacturing facilities could impact our business by disrupting our supply chain and the delivery of products to customers.

In addition, the increased violence in or around our subcontractors’ manufacturing facilities could present several risks to employees who may be directly affected by the violence, and such violence may result in a decision by them to relocate from the area or may make it difficult for us or our subcontractors, to recruit or retain talented employees. The likelihood of such occurrences and their potential effects are unpredictable and vary from country to country. Any such occurrences could be harmful to our business and our financial results.

A material portion of our revenue is from sales of equipment for gas turbine power plants. During periods of declining construction of new gas turbine power plants, the market for our products is significantly diminished.

The demand for our products depends on the continued construction of gas turbine power generation plants. The power generation equipment industry has experienced cyclical periods of slow growth or decline. During periods of decreased demand for new gas turbine power plants, our customers may be more likely to decrease expenditures on the types of products and systems that we supply and, as a result, our future revenue may decrease. These projects typically require funding from a healthy credit market as well. If credit markets are tight, funding could be difficult to obtain, therefore delaying or even cancelling these types of projects entirely. Because our growth strategy includes focusing on the natural gas growth trend, a rise in the price or a shortage in the supply of natural gas could affect the profitability, or operations, of gas turbine power plants, which could adversely affect our future revenue. These and other factors may temper demand for our products. If prices of natural gas in a particular geographic area are so high, or the supply of natural gas is so limited, as to make the construction of new gas turbine power plants or oil and gas infrastructure uneconomical in that geographic area, we may not derive any future revenue from projects in that geographic region unless and until those factors are reversed.

Environmental laws and regulations have played a part in the increased use of gas turbine technology in various jurisdictions. These laws and regulations may change, or other jurisdictions may adopt similar laws and regulations. Changes in existing laws and regulations could result in a reduction in the building and refurbishment of gas turbine power plants or oil and gas infrastructures. In addition, stricter environmental regulation could result in our customers seeking new ways of generating electricity that do not require the use of our products. Policymakers continue to focus on emissions from gas turbine power plants, and attempts to reduce or regulate emissions could increase the cost of gas turbine power plants and result in our customers switching to alternative sources of power.

Other current power technologies, improvements to these technologies and new alternative power technologies that compete or may compete in the future with gas turbine power plants could affect our sales and profitability. Any change in the power generation industry that results in a decline in the construction of new power plants or a decline in the upgrading of existing power plants could materially adversely affect our sales.

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A small number of major customers account for a significant portion of our revenue, and the loss of any of these customers could negatively impact our business.

We depend on a relatively small number of customers for a significant portion of our revenue. In 2016, three customers accounted for 43.0% of our consolidated revenue. In 2015, four customers accounted for 61.6% of our consolidated revenue. In 2014, four customers accounted for 58.4% of our consolidated revenue. For a listing of our major customers, see “Note 16—Major Customers and Concentration of Credit Risk” to our consolidated financial statements. We expect to continue to depend upon a relatively small number of customers for a significant percentage of our revenue. Because our major customers represent a large part of our business, the loss of any of our major customers could negatively impact our business and results of operations. Several of our customers have the ability to internally source some of the products we manufacture. Any increase in this activity could reduce our sales. Our business volume with each of our largest customers is highly dependent on power generation capacity additions for our Mechanical Solutions and Electrical Solutions segments and on operations and maintenance budgets for U.S. utilities for our Services segment. Fluctuations in any of these factors could materially adversely impact our performance results.

We are subject to potential insolvency or financial distress of third parties, including our customers and suppliers.

We are exposed to the risk that third parties to various arrangements who owe us money or goods, or who purchase products and services from us, will be unable to perform their obligations or continue to place orders due to insolvency or financial distress. If such third parties fail to perform their obligations under arrangements with us, we may be forced to replace the underlying commitment at current or above market prices or on other terms that are less favorable to us, or we may have to write off receivables in the case of a customer failing to pay.

If a customer becomes insolvent or files for bankruptcy, our ability to recover accounts receivable from that customer would be adversely affected and any payment we received during the preference period prior to a bankruptcy filing may be potentially recoverable by the bankruptcy estate. Any of the foregoing could adversely impact our results of operations, financial position and liquidity.

In March 2017, Westinghouse, a subsidiary of Toshiba Corporation, filed a voluntary petition to reorganize under Chapter 11 of the U.S. Bankruptcy Code. As of December 31, 2016, our accounts receivable from Westinghouse was $4.7 million. As of the bankruptcy filing date, we had $8.7 million of accounts receivable from Westinghouse, none of which has been collected. Westinghouse has stated that it intends to continue normal business operations. However, a number of uncertainties surround the Westinghouse Chapter 11 proceedings. We could be adversely affected if the owner of Plant Vogtle Units 3 and 4 decides to discontinue construction of this plant resulting from construction delays or cost overruns resulting from the Westinghouse bankruptcy filing. The owners of V.C. Summer Units 2 and 3 initially filed an abandonment plan to cease construction of such units; however, the owners later voluntarily withdrew this petition.

The dollar amount of our backlog, as stated at any time, is not necessarily indicative of our future revenue.

Our backlog consists of firm orders or blanket authorizations from our customers. Backlog may vary significantly from reporting period to reporting period due to the timing of customer commitments. The time between receipt of an order and actual completion, or delivery, of our products varies from a few weeks, in the case of inventoried precision parts, to a year or more, in the case of custom-designed gas turbine products, SCR systems and other major plant components. However, backlog may not be indicative of future operating results, and projects in our backlog may be cancelled, modified or otherwise altered by our customers. To the extent projects are delayed, the timing of our revenue could be affected. If a customer cancels an order, we may be reimbursed for the costs we have incurred. Typically, however, we have no contractual right to the full amount of the revenue reflected in our backlog contracts in the event of cancellation. In addition, projects may remain in our backlog for extended periods of time. Furthermore, a portion of our backlog for multi-year service maintenance contracts is based on what we expect to perform in the next twelve months of work and is therefore not necessarily supported by a firm purchase order. If that work does not materialize, then our backlog would be negatively impacted, as that work would be considered a “cancellation.” Revenue recognition occurs over extended periods of time and is subject to unanticipated delays. Fluctuations in our reported backlog levels also result from the fact that we may receive a small number of relatively large orders in any given reporting period that may be included in our backlog. Because of these large orders, our backlog in that reporting period may reach levels that may not be sustained in subsequent reporting periods. Our backlog, therefore, is not necessarily indicative of our future revenue or of long-term industry trends.

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The success of our Services segment is partially dependent upon maintaining our safety record, and an injury to or death of one of our employees could result in material liabilities to our company.

The activities we conduct at our and our customers’ facilities present a risk of injury or death to our employees, customers or visitors to our operations, notwithstanding our efforts to comply with safety regulations. We may be unable to avoid material liabilities for an injury or death, and our workers’ compensation and other insurance policies may not be adequate or may not continue to be available on terms acceptable to us, or at all, which could result in material liabilities to us. In addition, our ability to obtain new business and retain our current business, particularly in our Services segment, is partially dependent on our continuing ability to maintain a safety record that exceeds the industry average. If we fail to maintain superior safety performance, or if serious accidents occur in spite of our safety procedures, our revenue and results of operations could be materially and adversely affected.

Changes in our credit profile and market conditions can affect our relationships with suppliers, vendors and subcontractors, which could have a material adverse effect on our liquidity and our business, reputation and results of operations.

We rely significantly on third-party suppliers and vendors to obtain necessary materials, and on subcontractors to perform certain manufacturing and services. Although we are not dependent on any single supplier, vendor or subcontractor, any substantial limitation on the availability of or deterioration in our relationship with required suppliers or subcontractors would negatively impact our operations.

Changes in our credit profile can affect the way such third parties view our ability to make payments and may induce them to shorten the payment terms of their invoices or require credit enhancement. For instance, as a result of delays in our payments, certain suppliers and subcontractors have imposed less favorable payment terms on us, including requirements to provide them with additional security in the form of prepayments, surety bonds or letters of credit. The imposition of burdensome payment terms or collateral requirements could have a material adverse impact on our liquidity and our ability to make payments to other parties. This in turn could cause us to be unable to operate our business at the desired productivity levels, which might adversely affect our profitability and cash flow. In other cases, our relationships with certain third parties have been terminated, requiring us to rely on new firms for certain products and services, which may cost more and be of inferior quality.

In addition, changes in market and economic conditions could increase the risk of a lack of available suppliers or subcontractors. If any supplier or subcontractor upon which we rely is unable or unwilling to meet its obligations under present or future agreements with us, we may be forced to pay higher prices to obtain necessary products or services and may suffer an interruption in our ability to provide our services and products to customers.

To the extent we cannot engage quality subcontractors or acquire equipment or materials on acceptable terms, we would not be able to meet the full demands of our customers, which would have a material adverse effect on our business, reputation and results of operations.

Our former operating unit has been named as a defendant in asbestos personal injury lawsuits.

As discussed in “Note 15—Commitments and Contingencies” to our consolidated financial statements, our former operating unit has been named as a defendant in a limited number of asbestos personal injury lawsuits. Neither we, nor our predecessors, ever mined, manufactured, produced or distributed asbestos fiber, the material that allegedly caused the injury underlying these actions. The bankruptcy court’s discharge order issued upon our emergence from bankruptcy extinguished the claims made by all plaintiffs who had filed asbestos claims against us before that time. We believe the bankruptcy court’s discharge order should serve as a bar against any later claim filed against us, including any of our subsidiaries, based on alleged injury from asbestos at any time before our emergence from bankruptcy. In all of the asbestos cases finalized post-bankruptcy, we have been successful in having such claims dismissed without liability. Moreover, during 2012, we secured insurance coverage that will help to reimburse the defense costs and potential indemnity obligations of our former operating unit relating to these claims. Nonetheless, findings of liability on our part in any of these cases that were filed against us after we emerged from bankruptcy that remain unresolved could have an adverse effect on our financial position, results of operations or liquidity.

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Compliance with environmental, health, safety and other related laws and regulations is costly, and our ongoing operations may expose us to related liabilities.

Our operations are subject to laws and regulations governing the discharge of materials into the environment or otherwise related to the protection of the environment or human health and safety. We are subject to various U.S. federal statutes and the regulations implementing them, as well as similar laws and regulations at the state and local levels and in other countries in which we operate. If we fail to comply with environmental laws or regulations, we may be subject to significant liabilities for fines, penalties or damages, or lose or be denied significant operating permits.

In addition, we may be subject to product liability allegations involving claims of personal injury or property damage. The sale and servicing of complex, large-scale equipment used in a variety of locations and climates and integrating a variety of manufactured and purchased components entails an inherent risk of disputes and liabilities related to the operation and performance of the equipment and the health and safety of the workers who operate and come into contact with the machinery. Because our products are used primarily in power plants, claims could arise in different contexts, including fires, explosions and power surges, which can result in significant property damage or personal injury, and equipment failure, which can result in personal injury or damage to other equipment in the power plant.

The insurance policies we maintain to cover claims of this nature are subject to deductibles and recovery limitations as well as limitations on contingencies covered, and we may, therefore, suffer losses from these claims for which no insurance recovery is available. Such losses could have a material adverse effect on our business.

The effects of providing warranties for our products could result in significant unanticipated costs and could adversely affect our financial condition.

We generally provide warranties for terms of three years or less on our products. These warranties require us to repair or replace faulty products. The need to repair or replace products with design or manufacturing defects could temporarily delay the sale of new products and adversely affect our reputation. Any substantial payments made or costs incurred under our warranty program could have a material adverse effect on our business, financial condition, results of operations and cash flow.

Expiration of the Price-Anderson Act’s indemnification authority could have adverse consequences for our Services segment.

We provide services to the nuclear industry through our Services segment. The Price-Anderson Act promotes the nuclear industry by offering broad indemnification to commercial nuclear power plant operators and the U.S. Department of Energy (“DOE”) for liabilities arising out of nuclear incidents at power plants licensed by the NRC and at DOE nuclear facilities. That indemnification protects not only the NRC licensee or DOE prime contractor, but also others like us who may be doing work under contract or subcontract for a licensed power plant or under a DOE prime contract. The Energy Policy Act of 2005 extended the period of coverage to include all nuclear power reactors issued construction permits through December 31, 2025. If the Price-Anderson Act’s indemnification authority expires, a problem related to our provision of services at a nuclear facility could lead to a damage claim against us for which we might not be entitled to indemnification. In addition, any well-publicized problem with those services, whether actual or perceived, could adversely affect our reputation and reduce demand for our services.

Our revenue could be adversely affected if our patents and other intellectual property rights are unable to protect our proprietary products.

Our success depends significantly on our ability to protect our intellectual property rights to the technologies and know-how used in our proprietary products and software programs. We rely on patent protection, as well as a combination of trade secret, unfair competition and similar laws and nondisclosure, confidentiality and other contractual restrictions to protect our proprietary rights. However, these legal means afford only limited protection and may not adequately protect our rights or permit us to gain or keep any competitive advantage. We also rely on unpatented proprietary technology. We cannot provide assurance that we can meaningfully protect all of our rights in our unpatented proprietary technology, or that others will not independently develop substantially equivalent proprietary products or processes or otherwise gain access to our unpatented proprietary technology.

If we were required to commence legal actions to enforce our intellectual property or proprietary rights or to defend ourselves against claims that we are infringing on the intellectual property or proprietary rights of others, we could incur

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substantial losses and/or costs and divert management’s attention from operations. Any such losses or diverted attention could have a material adverse effect on our business, results of operations or cash flow.

Our failure to attract and retain qualified personnel, including engineers, skilled workers and key officers, could have an adverse effect on us.

Our ability to attract and retain qualified professional and/or skilled personnel in accordance with our needs, either through direct hiring, subcontracting or acquisition of other firms employing such professionals, is an important factor in determining our future success. The market for these professionals is competitive, and there can be no assurance that we will be successful in our efforts to attract and retain needed personnel. Our ability to successfully execute our business strategy depends, in part, on our ability to attract and retain highly qualified, experienced mechanical, design, structural and software engineers, service technicians and marketing and sales personnel in our Mechanical Solutions, Electrical Solutions and Services segments. Demand for these workers can, at times, be high and the supply extremely limited. Our success is also highly dependent upon the continued services of our key officers, and we do not maintain key employee insurance on any of our executive officers.

The restatement of our historical financial results and the poor financial performance of our domestic Mechanical Solutions and Electrical Solutions segments have caused significant employee turnover and made it more challenging to recruit and retain qualified personnel. If we are unable to retain qualified personnel, the roles and responsibilities of those employees will need to be filled, which may require that we devote time and resources to identifying, hiring and integrating new employees. In addition, the failure to attract and retain key employees, including officers, could impair our ability to sustain or expand our operations, provide services to our customers and conduct our business effectively.

Demand for our products and services is cyclical and vulnerable to economic slowdowns and reductions in private industry and government spending. In times of general economic contraction, our revenue, profits and financial condition may be adversely affected and will not necessarily rise in tandem with general economic expansion.

The industries we serve historically have been, and will likely continue to be, cyclical in nature and vulnerable to general slowdowns in the U.S. and international economies. Consequently, our results of operations have fluctuated and may continue to fluctuate depending on the level of demand for products and services from these industries.

Orders for new electrical power generation capacity are placed by our customers and have long lead times. Consequently, our bookings and revenue may rise or fall sharply as total industry orders tend to follow pronounced cycles of general expansion and contraction. During a contraction phase, limited investment in new projects, deferrals of planned projects and project cancellations may significantly reduce our potential recognition of revenue and profits. At the end of an expansion phase, any existence of excess capacity will negatively affect power prices, which will result in a reduction in new orders. In addition to being cyclical in nature, our revenue does not correlate precisely with changes in actual or forecasted new capacity due to timing differences in revenue recognition.

During periods of declining demand for power, many of our customers may face budget shortfalls or may delay capital expenditures, which could result in a decrease in the overall demand for our products and services. Our customers may find it more difficult to obtain project financing due to limitations on the availability of credit and other uncertainties in the global credit markets. In addition, our customers may demand better pricing terms and their ability to timely pay our invoices may be affected in times of economic slowdown. Any such reduction in private industry or government spending could have a material adverse effect on our revenue, net income or overall financial condition.

Information technology vulnerabilities and cyberattacks on our networks could have a material adverse impact on our business.

We rely upon information technology to manage and conduct business, both internally and with our customers, suppliers and other third parties. Internet transactions involve the transmission and storage of data, including, in certain instances, customer and supplier business information. Accordingly, maintaining the security of our computers and other electronic devices, computer networks and data storage resources is a critical issue for us and our customers and suppliers because security breaches could result in reduced or lost ability to carry on our business and loss of and/or unauthorized access to confidential information. We have limited personnel and other resources to address information technology reliability and security of our computer networks and respond to known security incidents to minimize potential adverse impact. Information security risks have generally increased in recent years because of the proliferation of new technologies and the increased sophistication and activities of perpetrators of cyber-attacks. Experienced hackers, cybercriminals and

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perpetrators of threats may be able to penetrate our network security and misappropriate or compromise our confidential information or that of third parties, create system disruptions or cause shutdowns. These perpetrators of cyberattacks also may be able to develop and deploy viruses, worms, malware and other malicious software programs that attack our information and networks or otherwise exploit any security vulnerabilities of our information and networks. Techniques used to obtain unauthorized access to or sabotage systems change frequently and often are not recognized until long after being launched against a target, so we may be unable to anticipate these techniques or to implement adequate preventative measures. A breach of our information technology systems and security measures as a result of third party action, malware, employee error, malfeasance or otherwise could materially adversely impact our business and results of operations and expose us to customer, supplier and other third party liabilities. Any damage, security breach, delay or loss of critical data associated with our systems may delay or prevent certain operations and may have a material adverse effect on our financial condition, results of operations and cash flows. As cyber threats continue to evolve, we may be required to expend additional significant resources to continue to enhance our information security measures and/or to investigate and remediate any information security vulnerabilities.

Our failure to comply with applicable governmental privacy laws and regulations in the U.S. and internationally could substantially impact our business, operations, financial position and cash flows.

We are subject to extensive and evolving federal, state and foreign privacy laws and regulations. Changes in privacy and data security laws or regulations or new interpretations of existing laws or regulations could have a negative effect on our operating methods and costs. Failure to comply with such regulations could result in the termination or loss of contracts, the imposition of contractual damages, private and government civil litigation, civil sanctions, damage to our reputation or, in certain circumstances, criminal penalties, any of which could have a material adverse effect on our results of operations, financial position, cash flows, business and prospects. Determining compliance with such regulations is complicated by the fact that many of these laws and regulations have not been fully interpreted by governing regulatory authorities or the courts, and many of the provisions of such laws and regulations are open to a range of interpretations. There can be no assurance that we are, or have been, in compliance with all applicable existing laws and regulations or that we will be able to comply with new laws or regulations.

With respect to trans-border data flows from the European Economic Area (the “EEA”), we have historically relied on the U.S. European Union (“E.U.”) and the U.S.-Swiss Safe Harbor Frameworks, as agreed to by the U.S. Department of Commerce and the E.U. and Switzerland, respectively, as a means to legally transfer European personal information from Europe to the U.S. and to process that information in the U.S. However, on October 6, 2015, the European Court of Justice (“ECJ”) invalidated the legal basis for the U.S.-E.U. Safe Harbor framework, and the Swiss data protection authorities later invalidated the U.S.-Swiss Safe Harbor framework. As a result, we have begun to undertake efforts to conform transfers of personal information from the EEA based on current regulatory obligations, the guidance of data protection authorities and evolving best practices. Despite these efforts, we may be unsuccessful in establishing conforming means of transferring such data from the EEA. The legitimacy of these alternate means is subject to differing interpretations among various European jurisdictions and, as a result, we may experience hesitancy, reluctance or refusal by European or multi-national clients to use our services due to the potential risk exposure they may face as a result of the ECJ ruling and the current data protection obligations imposed on them by certain data protection authorities. Furthermore, the ECJ’s decision may result in different European data protection regulators applying differing standards for the transfer of personal data, which could result in increased regulation, cost of compliance and limitations on data transfers for us and our clients. These developments could harm our business, financial condition and results of operations. The current and future status of the data protection laws, policies and enforcement within the United Kingdom are now increasingly uncertain in light of the vote to leave the E.U., exacerbating the potential impact of regulatory uncertainty.

On July 12, 2016, the European Commission and U.S. Department of Commerce announced that the E.U.-U.S. Privacy Shield Framework had been accepted. We adopted a Privacy Shield Policy that is compliant with that framework on September 23, 2016 and received confirmation from the Commerce Department that our self-certification had been finalized and became effective January 26, 2017. We have begun training our human resources and information technology teams on the Privacy Shield Policy and our obligations. While we believe our efforts will allow us to comply with the requirements of the E.U.-U.S. Privacy Shield Framework, noncompliance or alleged noncompliance with European privacy laws could result in fines and other penalties and could have a negative effect on our existing business and on our ability to attract and retain new customers.

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The supply and cost of materials we use in manufacturing our products fluctuate and could increase our operating costs.

Steel is a significant portion of the raw materials used in our products. Local shortages of steel plate sometimes arise, and it is possible that an adequate supply of steel will not continue to be available in all locations on terms acceptable to us. The materials we use in our products are subject to price fluctuations that we cannot control. Changes in the cost of raw materials can have a significant effect on our gross margins. Rapid increases in material prices are difficult to pass through to customers. An inability to pass on these higher costs could negatively impact our results of operations or financial condition.

Our participation in multiemployer pension plans could adversely impact our liquidity and results of operations.

During 2016, we contributed to approximately 60 multiemployer pension plans throughout the U.S. and historically, we have contributed to over 150 multiemployer pension plans in which we still have withdrawal liabilities. We believe that our responsibility for potential withdrawal liabilities associated with participating in multiemployer pension plans is limited because the building and construction trades exemption pursuant to the Employee Retirement Income Security Act of 1974 should apply to the substantial majority of our plan contributions. However, pursuant to the Pension Protection Act of 2006 and other applicable laws, we are exposed to other potential liabilities associated with plans that are underfunded. As of December 31, 2016, we had been notified that certain pension plans were in critical funding status. Currently, certain plans are developing, or have developed, a rehabilitation plan that may call for a reduction in participant benefits or an increase in future employer contributions. Therefore, in the future, we could be responsible for potential surcharges, excise taxes and/or additional contributions related to these plans, which could impact our liquidity and results of operations. While we continue to actively monitor, assess and take steps to limit our potential exposure to any surcharges, excise taxes, additional contributions and/or withdrawal liabilities, any market conditions or the number of participating employers remaining in each plan may result in a reorganization, insolvency or mass withdrawal that could have a material adverse effect on the funded status of the multiemployer plans and our potential withdrawal liability.

Foreign exchange risks may affect our ability to realize a profit from certain projects or to obtain projects.

We generally attempt to denominate our contracts in U.S. dollars or in the currencies of our expenditures. However, we do enter into contracts that subject us to foreign exchange risks, particularly to the extent contract revenue is denominated in a currency different than the contract costs. We may seek to minimize our exposure from foreign exchange risks by limiting foreign currency contracts to those currencies where we have ongoing operating expenditures or entering into hedge contracts if there are limited ongoing expenditures in the same currencies. However, these actions may not always eliminate all foreign exchange risks, and such risks have the potential to have an adverse effect on our business, financial condition, cash flow or profit.

Extensive government legislation and regulatory initiatives could increase costs and impose burdensome operating restrictions that may cause operational delays.

Members of the U.S. Congress and the U.S. Environmental Protection Agency (“EPA”) may implement more stringent regulations for hydraulic fracturing, the process of injecting water, sand and chemicals at high pressure underground, which releases natural gas. Currently, Congress and the EPA are studying environmental contamination related to hydraulic fracturing and the impact of fracturing on public health. In March 2015, Congress introduced legislation to regulate hydraulic fracturing and require disclosure of the chemicals used in the hydraulic fracturing process. Additionally, some states have adopted, and others are considering, regulations that could restrict hydraulic fracturing. In March 2015, the Bureau of Land Management issued a final rule to regulate hydraulic fracturing on federal and Indian land. In June 2016, a federal judge held that the Bureau of Land Management had no authority to issue such regulations, and the decision was appealed to the Tenth Circuit Court of Appeals. However, the current administration has indicated it does not intend to contest the decision and has proposed a repeal of the standards altogether. The ultimate status of such regulation is currently unknown.

Additionally, the EPA has focused its energy on more rulemaking to curb emissions of methane, smog forming volatile organic compounds and toxic air pollutants from oil and gas sources. Through the New Source Performance Standards, EPA has finalized and plans to finalize in 2016 rules that clarify definitions and implement more stringent emission controls on associated equipment like tanks and compressors used to process and transport natural gas. In August 2015, the EPA finalized rules that clarified the definitions of “low pressure wells” and “storage vessel,” which may affect plant construction. Any new laws, rules, regulations or permitting requirements regarding the oil and natural gas industries could lead to delays in the construction of new gas turbine power plants and/or increased operating costs for existing gas turbine power plants, which could negatively impact demand for our products.

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A change in our product mix could adversely affect our results of operations.

Our results may be affected by a change in our product mix on which our gross margin depends. Changes in our product mix may result from marketing activities to existing customers and needs communicated to us from existing and prospective customers. Our outlook, budgeting and strategic planning assume a certain product mix of sales. If actual results vary from this projected mix or products and services, our financial results could be negatively impacted.

We are subject to anti-bribery laws in the countries in which we operate. Failure to comply with these laws could result in our becoming subject to penalties and the disruption of our business activities.

Many of the countries in which we transact business have laws that restrict the offer or payment of anything of value to government officials or other persons with the intent of gaining business or favorable government action. We are subject to these laws, as well as being governed by the U.S. Foreign Corrupt Practices Act restricting these types of activities. In addition to prohibiting certain bribery-related activity with foreign officials and other persons, these laws provide for recordkeeping and reporting obligations. Any failure by us, our subcontractors, agents or others who work for us on our behalf to comply with these legal and regulatory obligations could impact us in a variety of ways that include, but are not limited to, significant criminal, civil and administrative penalties. The failure to comply with these legal and regulatory obligations could also result in the disruption of our business activities and have a material adverse effect on our business and results of operations.

A change in tax laws, treaties or regulations, or their interpretation, of any country in which we operate could increase our tax burden and otherwise adversely affect our financial condition, results of operations and cash flows.

A change in tax laws, treaties or regulations, or their interpretation, of any country in which we operate could result in a higher tax rate on our earnings, which could result in a significant negative impact on our earnings and cash flows from operations. We continue to assess the impact of various legislative proposals, including U.S. federal and state proposals, and modifications to existing tax treaties that could result in a material increase in our taxes. We cannot predict whether any specific legislation will be enacted or the terms of any such legislation. However, if such proposals were to be enacted, or if modifications were to be made to certain existing treaties, the consequences could have a material adverse impact on us, including increasing our tax burden, increasing costs of our tax compliance or otherwise adversely affecting our financial condition, results of operations and cash flows.

Work disruptions resulting from the expiration of our collective bargaining agreements or otherwise could result in increased operating costs and adversely affect our operating performance.

Certain of our temporary Services segment craft employees are represented by labor unions with which we have collective bargaining agreements. There can be no assurance that we will not experience labor disruptions associated with a lengthy strike or the expiration or renegotiation of collective bargaining agreements or other work stoppage at our facilities or customer locations, which could adversely affect our operating performance and may result in additional expenses and possible loss of revenue.

Risk Factors Related to Our Common Stock

The market price for our common stock is volatile, and our stockholders may not be able to resell their shares of common stock at or above the purchase price paid.

The market price of our common stock fluctuates significantly and may be affected by numerous factors (some of which are beyond our control), including:

·

The risk factors described in this Item 1A;

·

Actual or anticipated fluctuations in our operating results and financial condition;

·

Changes in laws or regulations and court rulings and trends in our industry;

·

The significant concentration of ownership of our common stock in the hands of a small number of investors;

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·

Changes in supply and demand of components and materials;

·

Changes in tax or accounting standards affecting our industry;

·

A shortfall in operating revenue or net income from that expected by securities analysts and investors;

·

Changes in securities analysts’ estimates of our financial performance or the financial performance of our competitors or companies in our industry;

·

General conditions in our customers’ industries; and

·

The degree of trading liquidity in our common stock and general market conditions.

From December 31, 2012 to September 5, 2017 the closing price of our common stock ranged from $20.86 to $1.62 per share. Continued declines in the price of our common stock could impede our ability to obtain additional capital, attract and retain qualified employees and reduce the liquidity of our common stock. In addition, the reduced stock price also increases the cost to us, in terms of dilution, of using our equity for employee compensation.

The stock market has from time to time experienced significant price and volume fluctuations that have particularly affected the market prices for the common stock of similarly situated companies. These broad market fluctuations may adversely affect the market price of our common stock.

We are currently subject to securities class action lawsuits filed against us. If additional suits were to be filed against us, regardless of the outcome, it could result in substantial costs and a diversion of our management’s attention and resources, which could also negatively impact the market price of our stock.

Delisting of our common stock from the NYSE and subsequent quotation on the OTC Pink® Marketplace—Limited Information Tier (“OTC”) operated by the OTC Markets Group Inc. may continue to decrease the value of our common stock and prevent certain investors from investing or achieving a meaningful degree of liquidity.

On March 30, 2016, we announced that we expected the NYSE to initiate procedures to delist our common stock, including the issuance of a delisting notice, and that we planned to disclose the receipt of such notice in a subsequent Current Report on Form 8-K. We subsequently received that notice, and the NYSE suspended trading in our common stock, effective March 30, 2016, and our common stock was subsequently delisted. As a result, our common stock is now quoted on the OTC. We cannot assure investors that our common stock will be listed on a national exchange such as the NASDAQ Stock Market, the NYSE or another securities exchange once we become current in our filing obligations with the SEC.

Based upon the fact that our common stock is no longer registered for trading on a national exchange and that the value of our issued and outstanding common stock has decreased in value, there may be investment loss for stockholders or certain stockholders may no longer be permitted to invest in our common stock. Bid quotations on the OTC can be sporadic and may not provide any meaningful liquidity to investors. An investor may find it difficult to dispose of shares or obtain accurate quotations as to the market value of our common stock. As a result of these limitations, our common stock has fewer market makers, lower trading volumes and larger spreads between bid and asked prices than securities listed on a national stock exchange or automated quotation system would typically have.

Because there may be a limited market and generally low volume of trading in our common stock, the share price of our common stock is more likely to be affected by broad market fluctuations, general market conditions, fluctuations in our operating results, changes in the market’s perception of our business and announcements made by us, our competitors or parties with whom we have business relationships. There may also be fewer institutional investors willing to hold or acquire our common stock. The lack of liquidity in our common stock may make it difficult for us to issue additional securities for financing or other purposes or to otherwise arrange for any financing that we may need in the future.

We are also no longer subject to the NYSE’s rules, such as corporate governance requirements or the minimum market capitalization and stockholders’ equity criteria. Without required compliance with such standards, investor interest in our common stock may decrease. The delisting of our common stock from the NYSE may also result in other negative implications, including the potential loss of confidence by customers, strategic partners and employees and the loss of investor and media interest in us and our common stock.

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We do not currently expect to pay any cash dividends on our common stock, so investors may not receive any return on investment unless investors sell their shares of common stock for a price greater than that which investors paid for them.

On May 30, 2012, our Board adopted a dividend policy pursuant to which we would pay quarterly dividends on our common stock; however, we have not paid any dividends since March 2015. The costs associated with the restatement of our historical financial results, as well as related matters, has presented a significant financial burden on our company, and the continued operation and expansion of our business has required substantial funding. In addition, as of December 31, 2016, our Revolving Credit Facility prevented us from paying dividends. As of September 5, 2017, our Centre Lane Facility continues to prohibit us from paying dividends. Therefore, we do not anticipate paying dividends on our common stock in the foreseeable future.

Any future determination with respect to the payment of dividends will be at the discretion of the Board and will depend upon our financial condition, results of operations, capital requirements, general business conditions, terms of financing arrangements and other factors that our Board may deem relevant. Future dividends, their timing and amount will be subject to capital availability and periodic determinations by our Board that cash dividends are in the best interest of our stockholders and are in compliance with all of our respective laws and agreements applicable to the declaration and payment of cash dividends and may be affected by, among other factors: our views on potential future capital requirements for organic initiatives and strategic transactions, including acquisitions; debt service requirements; our credit rating; changes to applicable tax laws or corporate laws; limitations in our Centre Lane Facility; and changes to our business model. Our dividend payments may change from time to time, and we cannot provide assurance that we will declare dividends of any particular amounts or at all. If we do not pay dividends, then our common stock may be less valuable because a return on investment will occur only if our stock price increases, and such appreciation may not occur.

Actions of activist shareholders could be disruptive and potentially costly, and the possibility that activist shareholders may seek changes that conflict with our strategic direction could cause uncertainty about the strategic direction of our business.

Activist investors may attempt to effect changes in our strategic direction and how our business is governed, or to acquire control over us to increase short term stockholder value by advocating corporate actions such as financial restructuring, increased borrowing, special dividends, stock repurchases or even sales of assets or the entire company. In fact, in June 2016, we entered into an election and nomination agreement with certain of our significant stockholders that had filed a Schedule 13D with the SEC with respect to the Company. Pursuant to that agreement, we agreed to appoint two additional directors to our Board, one of whom would serve as a representative of those investors. Among other things, we also agreed to various standstill provisions and to include the investors’ designees in our slate of nominees for election as directors at our next two annual meetings of stockholders. The agreement also provides that, because the Company has not held its 2016 Annual Meeting of Stockholders, the significant stockholders have the right to terminate the agreement at any time after January 1, 2017.

While we welcome varying opinions from all shareholders, activist campaigns that contest or conflict with our strategic direction could have an adverse effect on our results of operations and financial condition, as responding to proxy contests and other actions by activist shareholders can disrupt our operations, be costly and time consuming and divert the attention of our Board and senior management from the pursuit of business strategies. In addition, perceived uncertainties as to our future direction as a result of changes to the composition of our Board may lead to the perception of a change in the direction of our business, instability or lack of continuity which may be exploited by our competitors, may cause concern to our current or potential customers, may result in the loss of potential business opportunities and may make it more difficult to attract and retain qualified personnel and business partners. These types of actions could cause significant fluctuations in our stock price based on temporary or speculative market perceptions or other factors that do not necessarily reflect the underlying fundamentals and prospects of our business.

Future sales of our common stock and any of our other efforts to raise additional capital may depress our stock price.

Sales of a substantial number of shares of our common stock in the public market or otherwise, either by us, a member of management or a major stockholder, or the perception that such sales could occur, could depress the market price of our common stock and have a material adverse effect on our ability to raise capital through the sale of additional equity securities. We may seek additional capital through a combination of private and public equity and debt offerings. To the extent that we raise additional capital through the sale of equity or convertible debt securities, investor ownership interest will be diluted, and the terms may include liquidation or other preferences that adversely affect investor rights as a stockholder. Additional debt financing, if available, may involve agreements that include covenants limiting or restricting our ability to

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take specific actions such as incurring additional debt, making capital expenditures or declaring dividends. Any of the above could cause a decline in our stock price.

 

Item 1B.  Unresolved Staff Comment s.

 

None.

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Item 2.  Propertie s.

Our corporate office is currently located in Irving, Texas. Below is a summary of our owned and leased properties as of December 31, 2016.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

Owned/Leased

  

Approximate

  

 

  

 

Location

 

Expiration Date

 

Sq. Footage

 

Principal Uses

 

Segment

Irving, Texas

 

Leased (10/21/19)

 

11,000

 

Administrative office (corporate headquarters)

 

Corporate

Monterrey, Mexico

 

Owned (4)

 

135,000

 

Manufacturing and administrative office

 

Mechanical Solutions

Auburn, Massachusetts

 

Leased (12/21/26)

 

55,000

 

Manufacturing and administrative office

 

Mechanical Solutions

South Bend, Indiana

 

Leased (1)

 

110,000

 

Manufacturing and administrative office

 

Electrical Solutions

Chattanooga, Tennessee

 

Leased (2)

 

105,000

 

Manufacturing and administrative office

 

Electrical Solutions

Caldwell, Idaho

 

Leased (6/30/23)

 

58,000

 

Manufacturing and administrative office

 

Electrical Solutions

Heerlen, The Netherlands

 

Leased (9/30/21)

 

26,700

 

Administrative office

 

Mechanical Solutions

Heerlen, The Netherlands

 

Owned (4)

 

14,800

 

Administrative office

 

Mechanical Solutions

Baghdad, Iraq

 

Leased (1/8/18)

 

200

 

Branch office

 

Mechanical Solutions

Tulsa, Oklahoma

 

Leased (3/31/24)

 

49,900

 

Manufacturing and administrative office

 

Mechanical Solutions

Tulsa, Oklahoma

 

Leased (1/31/18) (3)

 

2,000

 

Administrative office

 

Mechanical Solutions

Shanghai, China

 

Leased (11/17/18)

 

1,200

 

Administrative office

 

Mechanical Solutions

Shanghai, China

 

Leased (6/30/18)

 

1,600

 

Warehouse facility

 

Mechanical Solutions

Houston, Texas

 

Leased (12/21/26)

 

114,400

 

Manufacturing and administrative office

 

Electrical Solutions

Florence, South Carolina

 

Leased (3/31/17) (3)

 

25,120

 

Warehouse facility and administrative office

 

Services

Atlanta, Georgia

 

Leased (3/31/23)

 

24,000

 

Administrative office

 

Services

Elmhurst, New York

 

Leased (10/31/17)

 

8,200

 

Warehouse facility and administrative office

 

Services


(1) We lease four facilities in South Bend, Indiana. These leases expire on December 31, 2017, February 2, 2018, July 26, 2019 and September 24, 2020.

(2) We lease two facilities in Chattanooga, Tennessee. These leases expire on November 30, 2019 and June 30, 2023.

(3) We terminated the Tulsa, Oklahoma office lease and Florence, South Carolina lease in March and May 2017, respectively.

(4) We are currently engaged in a process to sell our owned property in The Netherlands and Monterrey, Mexico.

38


 

Item 3.  Legal Proceeding s.

Shareholder Litigation

A putative shareholder class action, captioned Budde v. Global Power Equipment Group Inc., is pending in the U.S. District Court for the Northern District of Texas. This action and another action were filed on May 13, 2015 and June 23, 2015, and on July 29, 2015, the court consolidated the two actions and appointed a lead plaintiff. On May 1, 2017, the lead plaintiff filed a second consolidated amended complaint that names the Company and three of our former officers as defendants. It alleges violations of the federal securities laws arising out of matters related to our restatement of certain financial periods and claims that the defendants made material misrepresentations and omissions of material fact in certain public disclosures during the putative class period in violation of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5, as promulgated thereunder. The plaintiffs seek class certification on behalf of persons who acquired our stock between September 7, 2011 and May 6, 2015, monetary damages of “more than $200 million” on behalf of the putative class and an award of costs and expenses, including attorneys’ fees and experts’ fees. We intend to defend against this action. On June 26, 2017, the Company and the individual defendants filed a motion to dismiss the complaint. On August 23, 2017, the lead plaintiff filed its opposition to that motion. Defendants have until September 22, 2017 to file a reply in further support of their motion. Litigation is subject to many uncertainties and the outcome of this action is not predictable with assurance. At this time, we are unable to predict the possible loss or range of loss, if any, associated with the resolution of this litigation, or any potential effect such may have on us or our business or operations.

SEC Investigation

The Division of Enforcement of the SEC is conducting a formal investigation into possible securities law violations by Global Power relating to disclosures we made concerning certain financial information, including our cost of sales and revenue recognition, as well as related accounting issues. We are cooperating with the SEC in its investigation, including through the production of documents to, and the sharing of information with, the SEC Enforcement Staff. At this time, we cannot predict the outcome or the duration of the SEC investigation or any other legal proceedings or any enforcement actions or other remedies that may be imposed on us arising out of the SEC investigation.

For a description of our material pending legal and regulatory proceedings and settlements, see “Note 15—Commitments and Contingencies” and “Note 20—Subsequent Events” to our consolidated financial statements.

Item 4.  Mine Safety Disclosure s.

Not applicable.

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Part II

Item 5.  Market for Registrant’s Common Equit y, Related Stockholder Matters and Issuer Purchases of Equity Securities.

Market Price of Our Common Stock  

Our common stock traded on the NYSE through March 30, 2016. Effective March 30, 2016, the NYSE suspended trading in our securities. Our securities were officially delisted from the NYSE on April 18, 2016. Our shares are currently quoted on the OTC under the symbol “GLPW.” The high and low bid information for each quarter since January 1, 2015, as traded on the NYSE through March 30, 2016 and on the OTC beginning March 31, 2016, is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

2016

  

2015

 

 

 

High

  

 

Low

  

 

Dividends Declared

 

 

High

  

 

Low

  

 

Dividends Declared

1st Quarter

 

$

3.54

 

$

2.50

 

 

— 

 

$

14.10

 

$

12.06

 

$

0.09

2nd Quarter

 

$

2.54

 

$

1.50

 

 

— 

 

$

13.75

 

$

7.42

 

 

— 

3rd Quarter

 

$

5.16

 

$

2.01

 

 

— 

 

$

7.98

 

$

3.49

 

 

— 

4th Quarter

 

$

4.83

 

$

2.90

 

 

— 

 

$

5.80

 

$

3.39

 

 

— 

 

The high and low bid information for each quarter since January 1, 2017, as traded on the OTC is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

2017

 

 

 

High

  

 

Low

  

 

Dividends Declared

1st Quarter

 

$

5.40

 

$

4.01

 

 

— 

2nd Quarter

 

$

4.50

 

$

3.21

 

 

— 

3rd Quarter (through September 5, 2017)

 

$

3.50

 

$

2.46

 

 

— 

 

The OTC quotations above reflect inter-dealer prices, without retail mark-up, mark down or commissions and may not represent actual transactions. Such quotes are not necessarily representative of actual transactions or of the value of our securities.

The trading volume for our common stock is relatively limited. An active trading market may not continue to provide adequate liquidity for our existing stockholders or for persons who may acquire our common stock in the future.

Holders

As of September 5, 2017, there were 17,778,885 shares of our common stock outstanding and 133 holders of record of our common stock. We believe that the number of beneficial holders of our common stock is substantially greater than the number of holders of record.

Dividends

We have not paid dividends to holders of our common stock since March 2015, and the terms of our Revolving Credit Facility, as amended, prevented us from paying dividends as of December 31, 2016. Although in June 2017, we repaid the amounts outstanding under the Revolving Credit Facility, the terms of our Centre Lane Facility currently prevent us from paying dividends. In addition, declaration and payment of future dividends would depend on many factors, including, but not limited to, our earnings, financial condition, business development needs, regulatory considerations and the terms of our Centre Lane Facility, and is at the discretion of our Board of Directors. We currently have no plan in place to pay cash dividends. See “Part I—Item 1A. Risk Factors— We do not currently expect to pay any cash dividends on our common stock, so investors may not receive any return on investment unless investors sell their shares of common stock for a price greater than that which investors paid for them.

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Recent Sales of Unregistered Securities

During the fiscal year ended December 31, 2016, we did not sell any of our equity securities in transactions that were not registered under the Securities Act of 1933, as amended (the “Securities Act”).

Securities Authorized for Issuance under Equity Compensation Plans

The disclosure required by this Item is included under “Part III—Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters” of this Form 10-K.

Purchases of Equity Securities by the Company and Affiliated Purcha sers

Neither we, nor any “affiliated purchaser,” as defined in SEC Rule 10b-18(a)(3), purchased any of our equity securities during the years ended December 31, 2016, 2015 or 2014.

Equity Compensation Plan Information

For a discussion of our equity compensation plan information, see “Part III—Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”

Five Year Stock Performance Table

The stock price performance graph below shall not be deemed soliciting material or to be filed with the SEC or subject to Regulation 14A or 14C under the Exchange Act or to the liabilities of Section 18 of the Exchange Act, nor shall it be incorporated by reference into any past or future filing under the Securities Act or the Exchange Act, except to the extent we specifically request that it be treated as soliciting material or specifically incorporate it by reference into a filing under the Securities Act or the Exchange Act.

PICTURE 2

The following graph illustrates the five-year cumulative total return on investments in our common stock (GLPW), our peer group and the Russell 2000 Index. These indices are prepared by Zacks Investment Research, Inc. Our common stock is quoted on the OTC market and was previously listed on the NYSE. The shareholder return shown below is not necessarily indicative of future performance. Total return, as shown, assumes $100 invested on December 31, 2011 in shares of our

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common stock, shares of our peer group and the Russell 2000 Index, all with cash dividends reinvested. The calculations exclude trading commissions and taxes.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12/11

  

12/12

  

12/13

  

12/14

  

12/15

  

12/16

GLPW

100.00

 

73.32

 

85.40

 

61.62

 

15.64

 

21.21

Russell 2000

100.00

 

116.35

 

161.52

 

169.42

 

161.95

 

196.45

Peer Group (1)

100.00

 

113.54

 

164.00

 

128.96

 

130.69

 

161.07


(1)

The companies in our peer group are: Aegion Corporation, Astec Industries, AZZ, Inc., BWX Technologies, Inc. (formerly Babcock & Wilcox), CECO Environmental Corp., Chicago Bridge & Iron Company N.V., Donaldson Company, Inc., Dycom Industries, Inc., Graham Corporation, Matrix Service Company, MYR Group Inc., Powell Industries, Inc., Team, Inc. and Willbros Group, Inc. We selected these companies pursuant to Item 201(e) of Regulation S-K under the Exchange Act.

.

 

Item 6.  Selected Financial Dat a.

Five-Year Summary of Selected Financial Data

The following selected financial data are derived from the (i) audited consolidated financial statements for the years ended December 31, 2016, 2015 and 2014, (ii) audited consolidated statement of operations for the year ended December 31, 2013, (iii) unaudited consolidated balance sheets as of December 31, 2013 and 2012 and (iv) unaudited consolidated statement of operations for the year ended December 31, 2012, and should be read in conjunction with “Part I—Item 1A. Risk Factors,” “Part II—Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Part II—Item 8. Financial Statements and Supplementary Data” and our consolidated financial statements and the related notes included in this Form 10-K.

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These historical results are not necessarily indicative of results to be expected for any future periods.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands, except share and per share data)

 

Year Ended December 31,

 

Statement of Operations

  

2016

 

2015

 

2014

 

2013

 

2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(unaudited)

 

Total revenue

 

$

418,588

 

$

589,003

 

$

539,053

 

$

465,914

 

$

463,286

 

Gross profit

 

 

48,989

 

 

52,597

 

 

73,334

 

 

80,810

 

 

72,448

 

Gross profit percentage

 

 

11.7

%

 

8.9

%

 

13.6

%

 

17.3

%

 

15.6

%

Operating expenses

 

 

65,297

 

 

75,818

 

 

77,118

 

 

72,825

 

 

61,218

 

Restatement expenses

 

 

6,738

 

 

14,385

 

 

— 

 

 

— 

 

 

— 

 

Loss on sale of business and net assets held for sale

 

 

8,812

 

 

— 

 

 

— 

 

 

— 

 

 

— 

 

Loss on sale-leasebacks, net

 

 

1,857

 

 

— 

 

 

— 

 

 

— 

 

 

— 

 

Impairment expense

 

 

— 

 

 

47,755

 

 

— 

 

 

— 

 

 

— 

 

Bargain purchase gain

 

 

— 

 

 

(3,168)

 

 

— 

 

 

— 

 

 

— 

 

Operating (loss) income

 

 

(33,715)

 

 

(82,193)

 

 

(3,784)

 

 

7,985

 

 

11,230

 

Interest expense, net

 

 

8,398

 

 

4,484

 

 

1,820

 

 

893

 

 

1,563

 

Foreign exchange (gain) loss

 

 

(217)

 

 

(1,014)

 

 

(65)

 

 

(199)

 

 

254

 

Other expense (income), net

 

 

15

 

 

12

 

 

34

 

 

(28)

 

 

308

 

(Loss) income from continuing operations before income tax

 

 

(41,911)

 

 

(85,675)

 

 

(5,573)

 

 

7,319

 

 

9,105

 

Income tax expense (benefit)

 

 

1,702

 

 

(6,946)

 

 

41,661

 

 

(1,840)

 

 

(3,266)

 

(Loss) income from continuing operations

 

 

(43,613)

 

 

(78,729)

 

 

(47,234)

 

 

9,159

 

 

12,371

 

(Loss) income from discontinued operations (1)

 

 

— 

 

 

— 

 

 

(1)

 

 

279

 

 

24

 

Net (loss) income

 

$

(43,613)

 

$

(78,729)

 

$

(47,235)

 

$

9,438

 

$

12,395

 

(Loss) earnings per share from continuing operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

 

$

0.54

 

$

0.73

 

Diluted

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

 

$

0.54

 

$

0.72

 

Common shares outstanding:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted-average shares outstanding

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

17,348,286

 

 

17,151,810

 

 

17,005,589

 

 

16,919,981

 

 

16,885,259

 

Diluted

 

 

17,348,286

 

 

17,151,810

 

 

17,005,589

 

 

17,045,095

 

 

17,247,723

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

Balance Sheet

 

2016

 

2015

 

2014

 

2013

 

2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(unaudited)

 

Current assets

 

$

158,242

 

$

172,035

 

$

190,672

 

$

169,824

 

$

183,124

 

Total assets

 

 

232,842

 

 

301,030

 

 

361,643

 

 

362,324

 

 

331,244

 

Current liabilities

 

 

77,342

 

 

79,201

 

 

76,090

 

 

63,768

 

 

63,947

 

Long-term debt

 

 

45,341

 

 

70,000

 

 

45,000

 

 

23,000

 

 

— 

 

Stockholders’ equity

 

 

87,134

 

 

130,767

 

 

212,818

 

 

269,712

 

 

262,617

 

Cash dividends declared per common share

 

 

— 

 

$

0.09

 

$

0.36

 

$

0.36

 

$

0.27

 


(1)

Discontinued operations includes the results of our Deltak, LLC business unit (the “ Deltak business unit ”), which was sold in 2011.

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Quarterly Financial Data – Unaudited

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands, except share and per share data)

 

For the Quarter Ended

 

Statement of Operations

  

December 31, 2016

 

September 30, 2016

 

June 30, 2016

 

March 31, 2016

 

Total revenue

 

$

103,635

 

$

85,444

 

$

106,787

 

$

122,722

 

Gross profit

 

 

11,955

 

 

12,937

 

 

9,286

 

 

14,811

 

Gross profit percentage

 

 

11.5

%

 

15.1

%

 

8.7

%

 

12.1

%

Operating expenses

 

 

14,066

 

 

15,894

 

 

17,484

 

 

17,853

 

Restatement expenses

 

 

1,151

 

 

1,132

 

 

1,542

 

 

2,913

 

Loss on sale of business and net assets held for sale

 

 

124

 

 

495

 

 

8,193

 

 

— 

 

Loss on sale-leasebacks, net

 

 

1,857

 

 

— 

 

 

— 

 

 

— 

 

Operating loss

 

 

(5,243)

 

 

(4,584)

 

 

(17,933)

 

 

(5,955)

 

Interest expense, net

 

 

1,977

 

 

1,764

 

 

1,997

 

 

2,660

 

Foreign exchange (gain) loss

 

 

(479)

 

 

83

 

 

(129)

 

 

308

 

Other expense (income), net

 

 

65

 

 

(109)

 

 

64

 

 

(5)

 

Loss from continuing operations before income tax

 

 

(6,806)

 

 

(6,322)

 

 

(19,865)

 

 

(8,918)

 

Income tax expense

 

 

180

 

 

408

 

 

247

 

 

867

 

Net loss

 

$

(6,986)

 

$

(6,730)

 

$

(20,112)

 

$

(9,785)

 

Loss per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(0.40)

 

$

(0.39)

 

$

(1.16)

 

$

(0.57)

 

Diluted

 

$

(0.40)

 

$

(0.39)

 

$

(1.16)

 

$

(0.57)

 

Common shares outstanding:

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted-average shares outstanding

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

17,433,754

 

 

17,396,079

 

 

17,338,255

 

 

17,223,901

 

Diluted

 

 

17,433,754

 

 

17,396,079

 

 

17,338,255

 

 

17,223,901

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of the Quarter Ended

Balance Sheet

 

December 31, 2016

 

September 30, 2016

 

June 30, 2016

 

March 31, 2016

 

Current assets

 

$

158,242

 

$

157,821

 

$

172,368

 

$

167,240

 

Total assets

 

 

232,842

 

 

248,348

 

 

270,073

 

 

293,454

 

Current liabilities

 

 

77,342

 

 

77,482

 

 

78,062

 

 

79,763

 

Long-term debt

 

 

45,341

 

 

54,103

 

 

69,000

 

 

69,500

 

Stockholders’ equity

 

 

87,134

 

 

95,650

 

 

102,103

 

 

122,770

 

Cash dividends declared per common share

 

 

— 

 

 

— 

 

 

— 

 

 

— 

 

.

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Table of Contents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands, except share and per share data)

 

For the Quarter Ended

 

Statement of Operations

  

December 31, 2015

 

September 30, 2015

 

June 30, 2015

 

March 31, 2015

 

Total revenue

 

$

144,424

 

$

124,162

 

$

174,276

 

$

146,141

 

Gross profit

 

 

8,945

 

 

14,932

 

 

17,948

 

 

10,772

 

Gross profit percentage

 

 

6.2

%

 

12.0

%

 

10.3

%

 

7.4

%

Operating expenses

 

 

18,162

 

 

18,486

 

 

18,720

 

 

20,450

 

Restatement expenses

 

 

5,974

 

 

6,796

 

 

1,615

 

 

— 

 

Impairment expense

 

 

 4

 

 

47,751

 

 

— 

 

 

— 

 

Bargain purchase gain

 

 

— 

 

 

— 

 

 

— 

 

 

(3,168)

 

Operating loss

 

 

(15,195)

 

 

(58,101)

 

 

(2,387)

 

 

(6,510)

 

Interest expense, net

 

 

2,076

 

 

953

 

 

830

 

 

625

 

Foreign exchange (gain) loss

 

 

151

 

 

(55)

 

 

144

 

 

(1,254)

 

Other expense (income), net

 

 

21

 

 

(2)

 

 

(39)

 

 

32

 

Loss from continuing operations before income tax

 

 

(17,443)

 

 

(58,997)

 

 

(3,322)

 

 

(5,913)

 

Income tax expense (benefit)

 

 

549

 

 

(7,192)

 

 

576

 

 

(879)

 

Net loss

 

$

(17,992)

 

$

(51,805)

 

$

(3,898)

 

$

(5,034)

 

Loss per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(1.05)

 

$

(3.02)

 

$

(0.23)

 

$

(0.29)

 

Diluted

 

$

(1.05)

 

$

(3.02)

 

$

(0.23)

 

$

(0.29)

 

Common shares outstanding:

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted-average shares outstanding

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

17,186,159

 

 

17,161,183

 

 

17,159,115

 

 

17,099,728

 

Diluted

 

 

17,186,159

 

 

17,161,183

 

 

17,159,115

 

 

17,099,728

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of the Quarter Ended

Balance Sheet

 

December 31, 2015

 

September 30, 2015

 

June 30, 2015

 

March 31, 2015

 

Current assets

 

$

172,035

 

$

195,340

 

$

218,659

 

$

192,535

 

Total assets

 

 

301,030

 

 

324,909

 

 

398,393

 

 

373,120

 

Current liabilities

 

 

79,201

 

 

85,676

 

 

100,031

 

 

89,544

 

Long-term debt

 

 

70,000

 

 

70,000

 

 

70,000

 

 

53,000

 

Stockholders’ equity

 

 

130,767

 

 

148,301

 

 

200,170

 

 

202,431

 

Cash dividends declared per common share

 

 

— 

 

 

— 

 

 

— 

 

$

0.09

 

 

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Item 7.  Management’s Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion provides an analysis of the results for each of our segments, an overview of our liquidity and capital resources and other items related to our business. It contains forward-looking statements about our future revenue, operating results and expectations. See “Cautionary Note Regarding Forward-Looking Statements” and “Part I—Item 1A. Risk Factors” for a discussion of the risks, assumptions and uncertainties affecting these statements. This discussion and analysis should be read in conjunction with Part I of this Form 10-K as well as our consolidated financial statements and notes thereto included in this Form 10-K .

Industry Trends and Outlook

Mechanical Solutions.  Demand for our Mechanical Solutions products is based on worldwide economic growth and long-term views regarding natural gas as an energy source. Demand for our products and services has historically fluctuated with industrial demand for new power generating capacity, and the development of energy and industrial infrastructure globally. Our Mechanical Solutions products are sold worldwide. The time from order to shipment for the majority of this segment’s products is typically nine to twelve months. The CFI and TOG operations order to shipment cycle is less than six months. The TOG business was sold in July 2016.

With forecasted long-term growth in global energy demand, a continued focus on shale gas development in North America and other markets and the interest in cleaner and more economical generation of electricity, we believe that demand for gas-fired power generation plants is likely to remain solid over time due to relatively quick construction times, low capital costs and low carbon emissions as compared with other forms of fossil fuel powered plants.

With the expanded development of renewable energy, natural gas-fired power generation facilities are facing increased cycling (starts and stops) and higher capacity factors. We expect higher cycling and capacity factors to lead to increased aftermarket service work as the number of starts and hours accumulated are greater than original design expectations. In addition, we are seeing an increased demand for aftermarket support in the Middle East as operators there continue plant conversions from simple to combined cycle.

We expect the demand for natural gas turbine power generating capacity additions in certain emerging markets will outpace growth in developed markets over the near term. In regions where natural gas is plentiful, we expect that gas-fired power generation will be the preferred fuel source for baseload power. This growth will be constrained by the capacity of fuel transport for offtake via pipelines or other delivery methods.

Our overall long-term market outlook remains positive as demand has increased for global power generation capacity additions, although it has been recently affected by short-term headwinds resulting from continued macroeconomic uncertainties and a slow global recovery. Natural gas power generation remains a less expensive and lower emission alternative to coal-fired power generation. We believe these trends should stimulate new natural gas power generation facilities and upgrades to existing infrastructure. Additionally, regional building codes are demanding more energy efficient products and we are positioned well with engineering and manufacturing methods to take advantage of these demands.

Electrical Solutions.  Multiple industry factors are increasing the need for this segment’s products. The growth in electric transmission and distribution systems is being influenced by the increased use of renewable energy sources and distributed generation technologies. While rooftop solar generation may get the most attention, distributed energy resources (“DERs”) include more technologies. Unlike central station generation, DERs can sit on either side of the utility meter and may be owned by a utility, a customer or a third party. The category previously consisted of small-scale utility-owned diesel or gas engine generators strategically located to support distribution system operation. Today, DERs also include small-scale energy storage, including batteries and flywheels, as well as small-scale solar, wind and hydro generation. Also included in the DER category are distribution system management tools such as demand response. The adoption and benefits of DER technologies are starting to be recognized in the global power markets.

Our products also support the growing market for power generation for datacenters as the demand for cloud-based computing and data storage continues to increase. As more businesses convert to this model, the need for standby generation projects increases, which drives demand for our products. While the U.S. and E.U. are leading this trend, we expect this to be a global phenomenon as developing countries continue to adopt the Internet as both a social and business medium.

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Also driving the expansion of market opportunities for our products is the expansion of the pipeline system in North America to transport increasing oil and natural gas production to end markets, LNG transport facilities and downstream production facilities.

Services.     Nuclear power generation - Demand for plant upgrades, modification and maintenance services that we provide to U.S. nuclear power generation facilities slowed in 2016. Competition from gas-fired power generation providers that resulted from continued low natural gas prices forced participants in the U.S. nuclear industry to significantly reduce costs. Compliance requirements helped to offset this impact. The nuclear industry faces significant regulatory mandates following the 2011 nuclear accident at Fukushima Daiichi in Japan and from additional National Fire Protection Association requirements. Compliance with these and other regulations required significant spending for modifications to existing equipment. We had significant involvement providing those modifications to our customers in 2015 that continued through 2016.

Nuclear power plant modification and maintenance work that we performed declined in 2016 due to the loss of a significant maintenance and modification contract and the Tennessee Valley Authority’s completion of Watts Bar Unit 2, where we had a large role in the construction process. The new nuclear units under construction in the U.S. present significant opportunities for us, and we have multiple contracts at Plant Vogtle Units 3 and 4, which may remain under construction for several years. It is unlikely that any additional nuclear units will begin construction in the U.S. in the next several years due to cost and schedule uncertainties and competition from lower cost gas-fired units.

We believe there may be an opportunity for us to expand our capabilities and serve the decommissioning of nuclear power facilities. Several nuclear units have announced retirement in the coming years, and we are pursuing projects in the decommissioning market.

Other fossil fuel power generation - Demand for routine maintenance, plant upgrades, modification and new construction at U.S. coal-fired power generation facilities is similarly negatively impacted by low cost gas-fired generation, and also by the cost of complying with clean air regulations.

The U.S. EIA reported that natural gas-fired generation surpassed coal-fired generation as the most common electricity fuel in 2016. As a result, we have seen the demand for routine maintenance, plant upgrades, modification and new construction in the gas-fired generation market increase. We have maintained a presence in that market, primarily in capital projects for efficiency improvements. However, because most of those plants are newer than their nuclear and coal counterparts, they require fewer upgrades, which means they also require less maintenance than either coal or nuclear plants.

In addition to our traditional maintenance and modification services, we are seeking to align with complementary service providers to provide turnkey EPC services for larger capital and maintenance projects. We see this alignment as an area of continued future growth that would allow us to reach new customers and markets. While we provide most of our specialty services as an addendum to our traditional maintenance and modification services at power plants, we also service customers in other segments of the market, including pulp and paper industrial facilities. The demand for maintenance and modifications in the pulp and paper market was steady in 2016.

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Financial Results

Consolidated financial operating information for the most recent three years is summarized below. This information, as well as the selected financial data provided in “Part II—Item 6. Selected Financial Data” and our consolidated financial statements and related notes included in this Form 10-K, should be referred to when reading our discussion and analysis of results of operations below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Revenue

 

$

418,588

 

$

589,003

 

$

539,053

Cost of revenue

 

 

369,599

 

 

536,406

 

 

465,719

 Gross profit 

 

 

48,989

 

 

52,597

 

 

73,334

 

 

 

 

 

 

 

 

 

 

Selling and marketing expenses

 

 

9,544

 

 

12,130

 

 

10,045

General and administrative expenses

 

 

48,599

 

 

55,086

 

 

58,747

Restatement expenses

 

 

6,738

 

 

14,385

 

 

— 

Loss on sale of business and net assets held for sale

 

 

8,812

 

 

— 

 

 

— 

Loss on sale-leasebacks, net

 

 

1,857

 

 

— 

 

 

— 

Impairment expense

 

 

— 

 

 

47,755

 

 

— 

Bargain purchase gain

 

 

— 

 

 

(3,168)

 

 

— 

Depreciation and amortization expense (1)

 

 

7,154

 

 

8,602

 

 

8,326

Total operating expenses

 

 

82,704

 

 

134,790

 

 

77,118

Operating loss

 

 

(33,715)

 

 

(82,193)

 

 

(3,784)

 

 

 

 

 

 

 

 

 

 

Interest expense, net

 

 

8,398

 

 

4,484

 

 

1,820

Foreign currency gain

 

 

(217)

 

 

(1,014)

 

 

(65)

Other expense, net

 

 

15

 

 

12

 

 

34

Loss from continuing operations before income tax

 

 

(41,911)

 

 

(85,675)

 

 

(5,573)

Income tax expense (benefit)

 

 

1,702

 

 

(6,946)

 

 

41,661

Loss from continuing operations

 

 

(43,613)

 

 

(78,729)

 

 

(47,234)

Discontinued operations:

 

 

 

 

 

 

 

 

 

Loss from discontinued operations, net of tax

 

 

— 

 

 

— 

 

 

(1)

Loss from discontinued operations

 

 

— 

 

 

— 

 

 

(1)

Net loss

 

$

(43,613)

 

$

(78,729)

 

$

(47,235)


(1) Excludes depreciation and amortization expense for the years ended December 31, 2016, 2015 and 2014 of $2.2 million, $2.5 million and $1.6 million, respectively, included in cost of revenue.

 

Backlog

Our backlog consists of firm orders or blanket authorizations from our customers. Backlog may vary significantly from reporting period to reporting period due to the timing of customer commitments. The time between receipt of an order and actual completion, or delivery, of our products varies from a few weeks, in the case of inventoried precision parts, to a year or more, in the case of custom-designed gas turbine products, SCR systems and other major plant components.

We add a booking to our backlog for Mechanical Solutions segment and Electrical Solutions segment orders when we receive a purchase order or other written contractual commitment from a customer. We reduce backlog for those segments as revenue is recognized or upon cancellation.

The services we provide through our Services segment are typically carried out under construction contracts, long-term maintenance contracts and master service agreements. Backlog related to fixed-price contracts represents the total amount of revenue we expect to record in the future as a result of performing work under contracts that have been awarded to us. With respect to multi-year maintenance contracts, we include in backlog the amount of revenue we expect to receive for only one succeeding year, regardless of the remaining life of the contract. Revenue estimates included in our backlog can be subject to change as a result of project accelerations, cancellations or delays due to various factors, including, but not limited to, the customer’s budgetary constraints and adverse weather. These factors can also cause revenue amounts to be realized in different periods and at levels other than those originally projected. Additional work that is not identified under the original

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contract is added to our backlog when we reach an agreement with the customer as to the scope and pricing of that additional work. Capital project awards are typically defined in terms of scope and pricing at the time of a contractual commitment from the customer. Upon receipt of a customer commitment, we add capital project bookings to our backlog at full contract value, regardless of the time frame anticipated to complete the project. Maintenance services and capital project bookings are removed from our backlog as work is performed and revenue is recognized, or upon cancellation.

Backlog is not a measure defined by GAAP, and our methodology for determining backlog may vary from the methodology used by other companies in determining their backlog amounts. Backlog may not be indicative of future operating results and projects in our backlog may be cancelled, modified or otherwise altered by our customers.

The following table summarizes our backlog, by segment:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

(in thousands)

 

2016

  

2015

  

2014

Mechanical Solutions

 

$

37,792

 

$

62,187

 

$

89,932

Electrical Solutions

 

 

55,891

 

 

64,103

 

 

63,772

Services

 

 

138,567

 

 

132,671

 

 

231,534

Total

 

$

232,250

 

$

258,961

 

$

385,238

 

Mechanical Solutions.  Backlog as of December 31, 2016 decreased $24.4 million from December 31, 2015. The decline in backlog was attributed to quality issues in prior years with two of our major OEM customers in the United States. While we believe we have remediated the quality issues that affected 2015 and prior periods, we did not receive sufficient new orders to replace 2016 billings. In addition, we converted $20.2 million of 2015 backlog without replacing the completed projects with similar new orders. Aftermarket products backlog declined $5.0 million in 2016 due to the loss of a key customer and from the sale of TOG in 2016.

Our Mechanical Solutions backlog as of December 31, 2015 decreased $27.7 million from December 31, 2014. After the carryforward effect on backlog of the general industry decline in orders in 2014, our company specific issues compounded the negative impact in 2015. Due to product quality and on time delivery issues in prior periods, we only booked $5.3 million of new inlet system orders from two of our major OEM customers in the United States in 2015. A decision in late 2014 to move to a matrix organizational structure within our products businesses created further disruption, and that structure was abandoned in the second quarter of 2015. Nevertheless, 2015 operating performance was substantially impacted by the disruption, as were year-end 2015 backlog and orders.

Electrical Solutions.  Backlog as of December 31, 2016 decreased $8.2 million from December 31, 2015. The decrease in backlog was driven primarily by the closure of our Chattanooga plant. Plant selection was largely driven by distance to our customers’ project sites and, in early 2016, we experienced a reduction in orders in the southeast region which was primarily serviced by our Chattanooga plant.

Our Electrical Solutions backlog as of December 31, 2015 increased $0.3 million from December 31, 2014 primarily because of $4.9 million of backlog acquired in our acquisition of the Siemens’ eHouse manufacturing operations in February 2015 remaining in backlog as of the end of 2015, mostly offset by normal differences in the timing of the inflows and outflows of backlog.

Services.  Backlog as of December 31, 2016 increased $5.9 million from December 31, 2015. A $32.7 million fixed-price multi-year award and the timing of a nuclear customer’s outage schedule, which contributed $16.8 million to 2016 backlog, more than offset the $28.1 million decline in backlog related to the completion of the construction and support services project for restart activities at Watts Bar Unit 2 and the cancellation of a nuclear project that had $11.1 million remaining in backlog as of December 31, 2015. Backlog as of December 31, 2016 included $48.0 million related to the construction of Plant Vogtle Units 3 and 4, which represented 34.7% of Services backlog.

Our Services segment backlog decrease of $98.9 million as of December 31, 2015 was primarily due to the loss of a significant maintenance and modification contract, which adversely impacted our fourth quarter 2015 results. Additionally, the completion of a large fixed-price project and the timing of a scheduled nuclear outage contributed to the decline in backlog.

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Year ended December 31, 2016 compared with year ended December 31, 2015

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

Mechanical Solutions

 

$

112,022

 

$

122,593

 

(10,571)

 

(8.6)

Electrical Solutions

 

 

75,559

 

 

93,057

 

(17,498)

 

(18.8)

Services

 

 

231,007

 

 

373,353

 

(142,346)

 

(38.1)

Total

 

$

418,588

 

$

589,003

 

(170,415)

 

(28.9)

 

Mechanical Solutions.  Revenue in 2016 decreased $10.6 million compared with 2015. The decline in revenue in 2016 was largely driven by a $6.7 million decrease for inlet system projects, lower aftermarket part sales and lower backlog entering the year compared with 2015. The sale of TOG in early third quarter of 2016 resulted in $6.2 million lower revenue compared with 2015. Additionally, revenue in 2015 was adversely impacted by $3.9 million in liquidated damages.

Electrical Solutions.  Although Electrical Solutions entered 2016 with modestly higher backlog, revenue in 2016 decreased $17.5 million compared with 2015 due to $7.9 million lower sales of control houses. Additionally, revenue in 2015 benefited from the delivery of $9.9 million of multi-unit generator enclosures to a customer.

Services.  Revenue in 2016 decreased $142.3 million compared with 2015. An increase of $17.8 million in multi-year fixed-price nuclear projects in 2016 was not sufficient to offset a $65.1 million decline from the loss of a nuclear maintenance and modification contract and the associated short-term projects related to the maintenance scope in 2015. In addition, the winding down of construction and support services related to restart activities at a nuclear plant reduced 2016 revenue by $66.4 million compared with 2015. Furthermore, revenue in 2015 benefited $27.3 million from the 18 month outage schedule associated with another nuclear maintenance and modification contract customer.

Revenue by Destination Shipped or Services Performed

Mechanical Solutions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

United States

 

$

37,749

 

$

47,482

 

(9,733)

 

(20.5)

Canada

 

 

93

 

 

3,362

 

(3,269)

 

(97.2)

Europe

 

 

3,026

 

 

3,716

 

(690)

 

(18.6)

Mexico

 

 

5,091

 

 

3,151

 

1,940

 

61.6

Asia

 

 

19,105

 

 

25,422

 

(6,317)

 

(24.8)

Middle East

 

 

39,619

 

 

32,510

 

7,109

 

21.9

South America

 

 

5,431

 

 

498

 

4,933

 

990.6

Other

 

 

1,908

 

 

6,452

 

(4,544)

 

(70.4)

Total

 

$

112,022

 

$

122,593

 

(10,571)

 

(8.6)

Sales by region varies from year to year due to the size and timing of customer projects, mix among product categories and competition.

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Electrical Solutions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

United States

 

$

74,763

 

$

79,164

 

(4,401)

 

(5.6)

Canada

 

 

281

 

 

3,834

 

(3,553)

 

(92.7)

Europe

 

 

— 

 

 

— 

 

— 

 

— 

Mexico

 

 

492

 

 

3,550

 

(3,058)

 

(86.1)

Asia

 

 

10

 

 

1,776

 

(1,766)

 

(99.4)

Middle East

 

 

— 

 

 

2,997

 

(2,997)

 

(100.0)

South America

 

 

13

 

 

1,483

 

(1,470)

 

(99.1)

Other

 

 

— 

 

 

253

 

(253)

 

(100.0)

Total

 

$

75,559

 

$

93,057

 

(17,498)

 

(18.8)

The vast majority of Electrical Solutions’ revenue is generated in the U.S. The remainder varies from year to year due to the size and timing of customer projects.

Services:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

United States

 

$

222,890

 

$

371,365

 

(148,475)

 

(40.0)

Canada

 

 

— 

 

 

400

 

(400)

 

(100.0)

Europe

 

 

— 

 

 

— 

 

— 

 

— 

Mexico

 

 

— 

 

 

252

 

(252)

 

(100.0)

Asia

 

 

3,983

 

 

575

 

3,408

 

592.7

Middle East

 

 

— 

 

 

39

 

(39)

 

(100.0)

South America

 

 

4,134

 

 

687

 

3,447

 

501.7

Other

 

 

— 

 

 

35

 

(35)

 

(100.0)

Total

 

$

231,007

 

$

373,353

 

(142,346)

 

(38.1)

 

The majority of Services revenue is generated in the U.S. and is related to service work performed for operators of nuclear and fossil fuel powered generation facilities and other process and industrial operations. Non-U.S.-based revenue increased $6.1 million due to two dozen non-recurring projects within the Hetsco business. We sold our Hetsco business in early 2017, and therefore, as of September 5, 2017, no longer complete work in the Services segment outside of the U.S.

Gross Profit / Margin %

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

Mechanical Solutions

 

$

15,507

 

$

8,740

 

6,767

 

77.4

Gross Margin %

 

 

13.8

%

 

7.1

%

 

 

 

Electrical Solutions

 

$

2,250

 

$

(985)

 

3,235

 

328.4

Gross Margin %

 

 

3.0

%

 

(1.1)

%

 

 

 

Services

 

$

31,232

 

$

44,842

 

(13,610)

 

(30.4)

Gross Margin %

 

 

13.5

%

 

12.0

%

 

 

 

Total

 

$

48,989

 

$

52,597

 

(3,608)

 

(6.9)

Gross Margin %

 

 

11.7

%

 

8.9

%

 

 

 

 

Mechanical Solutions.  Gross profit in 2016 increased $6.8 million compared with 2015 despite $10.6 million lower revenue. The increase in gross profit for 2016 was the result of better project management execution, a $4.3 million reduction in warranty expense and a $3.9 million reduction in liquidated damages compared with 2015. These gross profit increases in 2016 were partially offset by a $1.3 million decrease in gross profit for TOG compared with 2015, which primarily resulted from the sale of TOG in July 2016.

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Electrical Solutions.  Gross profit in 2016 increased $3.2 million compared with 2015 despite $17.5 million lower revenue. The increase in gross profit for 2016 was the result of a reduction in operational inefficiencies in the Chattanooga plant, the completion of the start-up phase of production in the Houston facility and $2.5 million lower warranty expense compared with 2015.

Services.  Gross profit in 2016 decreased $13.6 million compared with 2015. Gross profit for 2016 decreased $17.9 million compared with 2015 due to the loss of a nuclear maintenance and modification contract and the associated short-term projects, the completion of construction and support services for restart activities at a nuclear plant and an 18 month outage schedule associated with another nuclear maintenance and modification contract customer. These gross profit declines in 2016 were partially offset by multi-year fixed-price nuclear projects of $1.1 million and fossil fuel projects of $1.9 million.

Operating Expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

Selling and marketing expenses

 

$

9,544

 

$

12,130

 

(2,586)

 

(21.3)

General and administrative expenses

 

 

48,599

 

 

55,086

 

(6,487)

 

(11.8)

Restatement expenses

 

 

6,738

 

 

14,385

 

(7,647)

 

(53.2)

Loss on sale of business and net assets held for sale

 

 

8,812

 

 

— 

 

8,812

 

100.0

Loss on sale-leasebacks, net

 

 

1,857

 

 

— 

 

1,857

 

100.0

Impairment expense

 

 

— 

 

 

47,755

 

(47,755)

 

(100.0)

Bargain purchase gain

 

 

— 

 

 

(3,168)

 

3,168

 

100.0

Depreciation and amortization expense (1)

 

 

7,154

 

 

8,602

 

(1,448)

 

(16.8)

Total

 

$

82,704

 

$

134,790

 

(52,086)

 

(38.6)


(1) Excludes depreciation and amortization expense for the years ended December 31, 2016 and 2015 of $2.2 million and $2.5 million included in cost of revenue, respectively.

Selling and Marketing Expenses.  Consolidated selling and marketing expenses include personnel, sales commissions, sales promotion, advertising, literature, bidding, estimating and trade shows. Selling and marketing expenses in 2016 decreased $2.6 million and accounted for 2.3% of revenue. This compares with selling and marketing expenses of 2.1% of revenue in 2015. Lower selling and marketing expenses in 2016 were due primarily to a $0.9 million decrease in bad debt expense, a $0.6 million decrease in sales commissions due to lower revenue, a $0.3 million decrease in travel and entertainment expenses and a $0.2 million decrease in recruiting expense compared with 2015.

General and Administrative Expenses.  Consolidated general and administrative expenses include general management, compensation and benefits of employees, officers and directors that are not direct costs of active projects, legal and professional fees and other general expenses, but not expenses incurred in connection with the restatement of our historical financial results and related matters. General and administrative expenses in 2016 decreased $6.5 million primarily as the result of our overall cost-cutting efforts compared with 2015. Our larger decreases in general and administrative expenses in 2016 were due to reduced headcount, which resulted in lower compensation and benefits of $5.0 million, and a $1.3 million decrease in travel and entertainment expenses compared with 2015.

Restatement Expenses.  Restatement expenses in 2016 decreased $7.6 million compared with 2015. The decrease in restatement expenses in 2016 was primarily attributable to the initial investigation and fact-finding costs that took place in 2015. The restatement expenses primarily consisted of fees for legal and accounting services in connection with the restatement of our historical financial results. We expect to incur additional expenses related to the restatement in 2017. Such expenses will include audit and legal, as the restatement was not completed until March 2017 Additionally, there have been document requests from regulators since the filing in March 2017 that have continued to require legal and auditor involvement.

Loss on Sale of Business and Net Assets Held for Sale .  During 2016, we incurred a $0.5 million loss on the sale of our wholly owned subsidiary, TOG. Furthermore, in 2016 we engaged a financial advisor to assist with the sale of our wholly owned subsidiary, Hetsco, in order to pay down debt. In connection with our decision to sell Hetsco, we adjusted the net assets to estimated fair value less estimated selling expenses which resulted in a write-down of $8.3 million. Hetsco was previously included in our Services segment. No such write-downs or losses occurred during the corresponding period in 2015.

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Loss on Sale-Leasebacks, Net.  On December 22, 2016, we sold three of our manufacturing facilities in Franklin, Indiana, Auburn, Massachusetts and Houston, Texas for $14.8 million and immediately leased the facilities back for a term of ten years, resulting in a net loss of $1.9 million. No such sale-leaseback transactions occurred in 2015.

Impairment Expense.  Impairment expense consists of charges for the excess of the carrying values of goodwill, other indefinite-lived intangibles and fixed assets over their respective fair values. As a result of our annual goodwill impairment analysis as of October 1, 2016, we determined that the fair value of our reporting units each exceeded their respective book values, and, accordingly, no impairment charge was necessary for the year ended December 31, 2016. During 2015, our common stock traded at a market price that was lower than the book value of the Company for a prolonged period. As a result, in 2015 we recorded a non-cash charge of $47.2 million for the impairment of goodwill and trade names, consisting of goodwill impairment of $37.6 million and $9.6 million of trade names. We also recorded an impairment of $0.6 million on one of our manufacturing facilities in 2015.

Bargain Purchase Gain.  In 2015, we recognized a bargain purchase gain of $3.2 million on the acquisition of the Siemens’ eHouse manufacturing operations. The bargain purchase was primarily the result of the divesture by Siemens outside its core business and has been included in our Electrical Solutions segment since the acquisition. We did not recognize any bargain purchase gain in 2016.

Depreciation and Amortization Expense.  Depreciation and amortization expense consists primarily of depreciation of fixed assets and amortization of definite-lived intangible assets; it excludes amounts included in cost of revenue. Depreciation and amortization expense in 2016 decreased $1.4 million compared with 2015 due to the decline in depreciable assets resulting from the sale of TOG in July 2016 and ceasing to depreciate and amortize our Hetsco assets when they were classified as assets held for sale in June 2016.

Operating Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

Mechanical Solutions

 

$

2,230

 

$

(32,997)

 

35,227

 

106.8

Electrical Solutions

 

 

(8,739)

 

 

(27,542)

 

18,803

 

68.3

Services

 

 

 3

 

 

12,217

 

(12,214)

 

(100.0)

Corporate

 

 

(27,209)

 

 

(33,871)

 

6,662

 

19.7

Total

 

$

(33,715)

 

$

(82,193)

 

48,478

 

59.0

 

Mechanical Solutions.  Operating income in 2016 increased $35.2 million compared with 2015 due to higher gross profit, a $4.6 million decline in operating expenses and the elimination of $23.9 million of impairment expense related to our goodwill and intangible assets that was recognized in the prior year. Lower operating expenses in 2016 were attributed to a $1.7 million reduction in salaries and benefits and a $0.7 million reduction in TOG operating expenses compared with 2015.

Electrical Solutions.  Operating loss in 2016 decreased $18.8 million compared with 2015 as a result of higher gross profit and the elimination of $19.1 million of impairment expense related to goodwill and other intangible assets that was recognized in the prior year. These improvements in 2016 offset the $3.2 million bargain purchase gain recorded in 2015 in connection with our acquisition of the Siemens’ eHouse manufacturing operations.

Services.  Operating income in 2016 decreased $12.2 million compared with 2015 due to lower gross profit of $13.6 million and a loss on net assets held for sale on Hetsco of $8.3 million. The decline in operating income in 2016 was somewhat mitigated by a $5.5 million decrease in selling, general and administrative expenses, excluding the Hetsco loss, compared with 2015 and the elimination of $4.2 million of impairment expense related to our goodwill and intangible assets that were recognized in the prior year. The decrease in selling, general and administrative expenses in 2016 resulted from reorganization efforts aimed at reducing employee-related costs compared with 2015.

Corporate.  Expenses related to our corporate operations are recognized in corporate operating income (loss). The decrease operating loss in 2016 of $6.7 million was primarily due to a reduction in restatement expenses of $7.6 million compared with 2015.

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Other Expense (Income)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

Interest expense, net

 

$

8,398

 

$

4,484

 

3,914

 

87.3

Foreign currency (gain) loss

 

 

(217)

 

 

(1,014)

 

797

 

78.6

Other expense, net

 

 

15

 

 

12

 

 3

 

25.0

Total

 

$

8,196

 

$

3,482

 

4,714

 

135.4

 

Total other expense in 2016 increased $4.7 million compared with 2015. The increase in other expense in 2016 was due to a $3.9 million increase in interest expense, net, which reflected higher average interest rates compared with 2015. Our weighted average interest rate in 2016 was 10.2%, compared with 5.0% in 2015. In 2016, the exchange rates in foreign countries where we conduct business, as a whole, remained relatively constant in comparison to the U.S. dollar. In 2015, the foreign currency gain was largely driven by changes in the exchange rates of the Euro and the Peso relative to the U.S. dollar.

Income Tax Expense (Benefit)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2016

  

2015

  

$

  

%

Income tax expense (benefit)

 

$

1,702

 

$

(6,946)

 

8,648

 

124.5

 

We recorded income tax expense in 2016 of $1.7 million compared with an income tax benefit of $6.9 million in 2015. Our effective tax rates were (4.1)% and 8.1% for the years ended December 31, 2016 and 2015, respectively.

As of December 31, 2014, we determined that, with the pre‑tax losses generated by the U.S. and certain foreign business operations, specifically the pre‑tax losses generated in 2014 and the preceding two years, the weight of the objective and verifiable negative evidence clearly indicated in the fourth fiscal quarter that a valuation allowance against all of our U.S. and certain foreign deferred tax assets was necessary. As a result, additional valuation allowances of $44.9 million were recorded against the gross deferred tax asset balances as of December 31, 2014, which allowances were also the primary reason that the effective tax rate for 2014 differed from the statutory rate. As of December 31, 2016 and 2015, we had a full valuation allowance against the U.S. and certain foreign deferred tax assets.

The 2016 income tax expense was primarily related to foreign taxes on the net income of our foreign subsidiaries. The 2015 income tax benefit related primarily to a reduction in valuation allowances resulting from deferred tax liabilities created through the impairment of indefinite‑lived intangibles and the bargain purchase gain during the year ended December 31, 2015 that were used to offset deferred tax assets, which were discrete events in 2015.

Our ability to use our deferred tax assets is subject to volatility and could be adversely affected by earnings differing materially from our projections, changes in the valuation of our deferred tax assets and liabilities, expiration of or lapses in tax credits, changes in ownership as defined by Section 382 of Code and outcomes as a result of tax examinations or by changes in tax laws, regulations and accounting principles. As a result, our income tax provisions are also subject to volatility from these changes, as well as from changes in accounting for uncertain tax positions, or interpretations thereof. As a result of our federal and state NOL carryforwards, we are not anticipating any significant current tax expense resulting from our operations in the U.S. or China over the next few years. We are expecting to continue to generate current tax expense from our foreign operations, predominately our European operations, which are subject to a tax rate of 25%.

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Year ended December 31, 2015 compared with year ended December 31, 2014

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

Mechanical Solutions

 

$

122,593

 

$

145,910

 

(23,317)

 

(16.0)

Electrical Solutions

 

 

93,057

 

 

77,280

 

15,777

 

20.4

Services

 

 

373,353

 

 

315,863

 

57,490

 

18.2

Total

 

$

589,003

 

$

539,053

 

49,950

 

9.3

 

Mechanical Solutions.  Revenue decreased $23.3 million, or 16.0%, largely as a result of fewer orders from two of our major OEM customers in the U.S. We believe that the reduction in orders by the two OEM customers was the result of certain product quality and on time delivery issues. We expect the negative impact of this will continue to affect Mechanical Solutions until we re-establish a record of consistently producing quality products that we deliver on time. In addition to the lower volume, the strengthening of the U.S. dollar versus the Euro throughout 2015 resulted in a $5.4 million decrease in U.S. dollar revenue from our European operations. We also recorded contractual liquidated damages due to late deliveries, which we recognized as a $3.9 million reduction in revenue in 2015, up $2.7 million over 2014.

Electrical Solutions.  Revenue increased $15.8 million, or 20.4%, to $93.1 million. This increase resulted primarily from our resolution of operational inefficiencies at our Chattanooga plant that had been adversely affecting our ability to complete and ship units and our acquisition of the Siemens’ eHouse manufacturing operations in February 2015, which provided $13.4 million of incremental revenue. The resolution of those issues in the second quarter of 2015 allowed us to ship additional units and recognize the corresponding revenue in 2015. The projects completed at our Chattanooga plant in 2015 included two multi-unit generator enclosure orders, which totaled $9.9 million of revenue.

Services.    Revenue increased $57.5 million, or 18.2%, to $373.4 million. The primary drivers of the increase were $74.4 million in incremental revenue associated with construction and support services at a new build nuclear site, the timing of a maintenance and modification customer’s outage schedule and additional projects with a specific customer. Partially offsetting the increase was a $19.0 million decline in revenue from the non-renewal by a customer of a maintenance and modification contract.

Revenue by Destination Shipped or Services Performed

Mechanical Solutions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

United States

 

$

47,482

 

$

59,425

 

(11,943)

 

(20.1)

Canada

 

 

3,362

 

 

3,239

 

123

 

3.8

Europe

 

 

3,716

 

 

12,683

 

(8,967)

 

(70.7)

Mexico

 

 

3,151

 

 

675

 

2,476

 

366.8

Asia

 

 

25,422

 

 

17,109

 

8,313

 

48.6

Middle East

 

 

32,510

 

 

35,333

 

(2,823)

 

(8.0)

South America

 

 

498

 

 

3,404

 

(2,906)

 

(85.4)

Other

 

 

6,452

 

 

14,042

 

(7,590)

 

(54.1)

Total

 

$

122,593

 

$

145,910

 

(23,317)

 

(16.0)

Sales by region varies from year to year due to the size and timing of customer projects, mix among product categories, and competition.

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Electrical Solutions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

United States

 

$

79,164

 

$

70,847

 

8,317

 

11.7

Canada

 

 

3,834

 

 

1,089

 

2,745

 

252.1

Europe

 

 

— 

 

 

— 

 

— 

 

— 

Mexico

 

 

3,550

 

 

1,000

 

2,550

 

255.0

Asia

 

 

1,776

 

 

156

 

1,620

 

NM*

Middle East

 

 

2,997

 

 

3,136

 

(139)

 

(4.4)

South America

 

 

1,483

 

 

256

 

1,227

 

479.3

Other

 

 

253

 

 

796

 

(543)

 

(68.2)

Total

 

$

93,057

 

$

77,280

 

15,777

 

20.4

* Not meaningful

The vast majority of Electrical Solutions’ revenue is generated in the U.S. The remainder varies from year to year due to the size and timing of customer projects.

Services:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

United States

 

$

371,365

 

$

313,967

 

57,398

 

18.3

Canada

 

 

400

 

 

339

 

61

 

18.0

Europe

 

 

— 

 

 

— 

 

— 

 

— 

Mexico

 

 

252

 

 

— 

 

252

 

100.0

Asia

 

 

575

 

 

247

 

328

 

132.8

Middle East

 

 

39

 

 

186

 

(147)

 

(79.0)

South America

 

 

687

 

 

170

 

517

 

304.1

Other

 

 

35

 

 

954

 

(919)

 

(96.3)

Total

 

$

373,353

 

$

315,863

 

57,490

 

18.2

 

The majority of Services’ revenue is generated in the U.S. and is related to services work performed for operators of nuclear and fossil fuel powered generation facilities and other process and industrial operations. Non-U.S.-based revenue was relatively flat on a year over year basis and was all derived from our Hetsco business. Subsequent to December 31, 2016, we sold our Hetsco business, and therefore no longer complete work in the Services segment outside of the U.S.

Gross Profit / Margin %

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

Mechanical Solutions

 

$

8,740

 

$

23,141

 

(14,401)

 

(62.2)

Gross Margin %

 

 

7.1

%

 

15.9

%

 

 

 

Electrical Solutions

 

$

(985)

 

$

4,983

 

(5,968)

 

(119.8)

Gross Margin %

 

 

(1.1)

%

 

6.4

%

 

 

 

Services

 

$

44,842

 

$

45,210

 

(368)

 

(0.8)

Gross Margin %

 

 

12.0

%

 

14.3

%

 

 

 

Total

 

$

52,597

 

$

73,334

 

(20,737)

 

(28.3)

Gross Margin %

 

 

8.9

%

 

13.6

%

 

 

 

 

Mechanical Solutions.  Gross profit decreased $14.4 million on a $23.3 million decrease in revenue. Compounding the impact of lower revenue, we lowered our bid margins to address competitive pressure and also encountered operational inefficiencies, particularly in our Braden U.S. operations. The cumulative effect was a full year gross margin percentage decrease from 15.9% to 7.1% for the segment. As a result of those factors, we also accrued negative margins of $3.8 million related to contracts that were not complete as of December 31, 2015, but which we estimated would result in losses. Warranty expense also increased $0.5 million as a result of certain quality issues.

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Electrical Solutions.  Gross profit decreased $6.0 million, while revenue increased $15.8 million, as a result of the effects of operating inefficiencies at our Chattanooga plant and start-up inefficiencies at our Houston plant. Although we recognized $9.9 million of revenue related to two significant multi-unit generator enclosure orders, those orders resulted in a combined loss of $1.7 million in 2015 due to the challenges of a new product design combined with the overall effects from operational inefficiencies at our Chattanooga plant. We also recorded negative margins of $1.4 million on contracts with no related revenue either due to estimated loss contracts or contract cancellations but which we estimated would result in losses. In addition, warranty expense increased $2.8 million.

Services.  Gross profit decreased $0.4 million, or 0.8%, to $44.8 million in our fiscal year 2015 compared with $45.2 million in our fiscal year 2014. An increase of $7.3 million in gross profit resulted from services at a new build nuclear site, non-recurring projects and an incremental nuclear outage project. This was offset by a $7.9 million decrease in gross profit from a short term non-recurring fixed-price nuclear project and the non-renewal by a customer of a maintenance and modification contract.

Operating Expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

Selling and marketing expenses

 

$

12,130

 

$

10,045

 

2,085

 

20.8

General and administrative expenses

 

 

55,086

 

 

58,747

 

(3,661)

 

(6.2)

Restatement expenses

 

 

14,385

 

 

— 

 

14,385

 

100.0

Impairment expense

 

 

47,755

 

 

— 

 

47,755

 

100.0

Bargain purchase gain

 

 

(3,168)

 

 

— 

 

(3,168)

 

(100.0)

Depreciation and amortization expense (1)

 

 

8,602

 

 

8,326

 

276

 

3.3

Total

 

$

134,790

 

$

77,118

 

57,672

 

74.8


(1) Excludes depreciation and amortization expense for the years ended December 31, 2015 and 2014 of $2.5 million and $1.6 million included in cost of revenue, respectively.

Selling and Marketing Expenses.  Consolidated selling and marketing expenses increased $2.1 million year over year to $12.1 million, or 2.1% of revenue. This compares with selling and marketing expenses of 1.9% of revenue in 2014. Higher selling and marketing expenses in 2015 were attributable to $1.0 million in increased compensation expense caused by temporary increases in Mechanical Solutions sales efforts in an attempt to stem revenue declines. In addition, bad debt expense increased $1.0 million. Sales staffing was subsequently reduced.

General and Administrative Expenses.  Lower consolidated general and administrative expenses of $3.7 million year over year were primarily the result of $4.4 million lower incentive compensation expense and $0.7 million of losses from the disposal of fixed assets in 2014 that did not occur in 2015. The decreases were partially offset by $1.4 million increase in salary expenses.

Restatement Expenses.  In 2015, we incurred $14.4 million of expenses relating to the restatement of our historical financial results. We did not incur such expenses in 2014. The restatement expenses primarily consisted of fees for legal and accounting services.

Impairment Expense.  During 2015, our common stock traded at a market price that was lower than its book value for a prolonged period. As a result, we recorded a non-cash charge of $47.2 million for the impairment of goodwill and trade names in the third quarter of 2015, consisting of goodwill impairment of $37.6 million and $9.6 million of indefinite-lived intangibles impairment. We also recorded impairment of $0.6 million on one of our manufacturing facilities in 2015. We did not record any impairment charges in 2014. For additional information, see “Part I—Item 1A. Risk Factors” and “Note 7—Goodwill and Other Intangible Assets” to our consolidated financial statements.

Bargain Purchase Gain.  We recognized a bargain purchase gain of $3.2 million on the acquisition of the Siemens’ eHouse manufacturing operations. The bargain purchase was primarily the result of divesture by Siemens outside their core business and is included in our Electrical Solutions segment since acquisition.

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Depreciation and Amortization Expenses.  Depreciation and amortization expense increased $0.3 million in 2015 as a result of additional expense related to fixed assets depreciation and intangibles amortization for the Siemens’ eHouse manufacturing operations, which we acquired in February 2015.

Operating Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

Mechanical Solutions

 

$

(32,997)

 

$

5,116

 

(38,113)

 

(745.0)

Electrical Solutions

 

 

(27,542)

 

 

(3,623)

 

(23,919)

 

(660.2)

Services

 

 

12,217

 

 

16,080

 

(3,863)

 

(24.0)

Corporate

 

 

(33,871)

 

 

(21,357)

 

(12,514)

 

(58.6)

Total

 

$

(82,193)

 

$

(3,784)

 

(78,409)

 

NM*

*Not meaningful

Mechanical Solutions.  Operating income for our Mechanical Solutions segment decreased due to the $14.4 million reduction in gross profit, and $23.9 million of impairment expense related to goodwill and other intangible assets.

Electrical Solutions.  Operating loss for our Electrical Solutions segment increased due to the $6.0 million reduction in gross profit, $19.1 million of impairment expense related to goodwill and other intangible assets and $0.4 million of acquisition expenses related to the Siemens’ eHouse manufacturing operations acquisition. The decline in operating income was partially offset by the $3.2 million bargain purchase gain that we recorded in connection with our acquisition of the Siemens’ eHouse manufacturing operations. Excluding those significant non-recurring items, operating expenses increased $1.6 million, including a $0.6 million increase in bad debt expense.

Services.  Operating income for our Services segment was lower in 2015 primarily because of $4.2 million of impairment charges relating to goodwill and trade names.

Corporate.  We recognized an operating loss related to our corporate operations of $33.9 million in 2015 compared with a loss of $21.4 million in 2014. The higher expense was primarily due to the $14.4 million of expenses related to the restatement of our historical financial statements.

Other Expense (Income)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

Interest expense, net

 

$

4,484

 

$

1,820

 

2,664

 

146.4

Foreign currency gain

 

 

(1,014)

 

 

(65)

 

(949)

 

NM*

Other expense (income), net

 

 

12

 

 

34

 

(22)

 

(64.7)

Total

 

$

3,482

 

$

1,789

 

1,693

 

94.6

*Not meaningful

Total other expense increased $1.7 million, or 94.6%, to $3.5 million in fiscal year 2015 compared with $1.8 million in fiscal year 2014. The increase was attributable to a $2.7 million increase in interest expense, net in 2015, which was the result of a higher average outstanding debt balance in 2015 of $57.5 million, compared with an average outstanding debt balance in 2014 of $34.0 million and higher average interest rates. For both fiscal years, the gain on currency translation was largely driven by changes in the exchange rates of the Euro and the Peso relative to the U.S. dollar.

Income Tax Expense (Benefit)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Variance

($ in thousands)

 

2015

  

2014

  

$

  

%

Income tax expense (benefit)

 

$

(6,946)

 

$

41,661

 

(48,607)

 

(116.7)

 

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We recorded an income tax benefit in 2015 of $6.9 million compared with an income tax expense of $41.7 million in 2014. Our effective tax rates were 8.1% and (747.6)% for the years ended December 31, 2015 and December 31, 2014, respectively.

As of December 31, 2014, we determined that, with the restated pre-tax losses generated by the U.S. and certain foreign business operations, specifically the restated pre-tax losses generated in 2014 and the preceding two years, the weight of the objective and verifiable negative evidence clearly indicated in the fourth fiscal quarter that a valuation allowance against all of our U.S. and certain foreign deferred tax assets was necessary. As a result, additional valuation allowances of $44.9 million were recorded against the gross deferred tax asset balances as of December 31, 2014, which allowances were also the primary reason that the effective tax rate for 2014 differed from the statutory rate. As of December 31, 2015, we had a full valuation allowance against the U.S. and certain foreign deferred tax assets.

The decrease in income tax expense during 2015 related primarily to a reduction in valuation allowances resulting from deferred tax liabilities created through the impairment of indefinite-lived intangibles and bargain purchase gain during the year ended December 31, 2015 that were used to offset deferred tax assets.

Our ability to use our deferred tax assets is subject to volatility and could be adversely affected by earnings differing materially from our projections, changes in the valuation of our deferred tax assets and liabilities, expiration of or lapses in tax credits, changes in ownership as defined by Section 382 of Code and outcomes as a result of tax examinations or by changes in tax laws, regulations and accounting principles. As a result, our income tax provisions are also subject to volatility from these changes, as well as from changes in accounting for uncertain tax positions, or interpretations thereof. As a result of our federal and state NOL carryforwards, we are not anticipating any significant current tax expense resulting from our operations in the U.S. or China over the next few years. We are expecting to continue to generate current tax expense from our foreign operations, predominately our European operations, which are subject to a tax rate of 25%.

Three months ended March 31, 2016 compared with three months ended March 31, 2015

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

Mechanical Solutions

 

$

36,356

 

$

30,860

 

5,496

 

17.8

Electrical Solutions

 

 

17,637

 

 

14,925

 

2,712

 

18.2

Services

 

 

68,729

 

 

100,356

 

(31,627)

 

(31.5)

Total

 

$

122,722

 

$

146,141

 

(23,419)

 

(16.0)

 

Mechanical Solutions.  Revenue for the three months ended March 31, 2016 increased $5.5 million compared with the corresponding period in 2015 due to incremental air intake system projects from the Middle East region. Revenue for the three months ended March 31, 2015 included an $0.8 million charge for contractual liquidated damages that did not recur in 2016.

Electrical Solutions.  Revenue for the three months ended March 31, 2016 increased $2.7 million compared with the corresponding period in 2015 due primarily to the shipment of a $1.8 million multi-unit generator enclosure and the timing of delivery dates driven by customers’ project construction schedules.

Services.  Revenue for the three months ended March 31, 2016 decreased $31.6 million compared with the corresponding period in 2015 due to a $21.6 million decline in revenue associated with the loss of a maintenance and modification contract and related short-term projects derived from that contract. Revenue for the three months ended March 31, 2015 benefited from the completion of a $9.0 million non-recurring fixed-price oil and gas project.

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Gross (Loss) Profit / Margin %

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

Mechanical Solutions

 

$

5,224

 

$

(342)

 

5,566

 

NM*

Gross Margin %

 

 

14.4

%

 

(1.1)

%

 

 

 

Electrical Solutions

 

$

(17)

 

$

1,325

 

(1,342)

 

(101.3)

Gross Margin %

 

 

(0.1)

%

 

8.9

%

 

 

 

Services

 

$

9,604

 

$

9,789

 

(185)

 

(1.9)

Gross Margin %

 

 

14.0

%

 

9.8

%

 

 

 

Total Gross Profit

 

$

14,811

 

$

10,772

 

4,039

 

37.5

Gross Margin %

 

 

12.1

%

 

7.4

%

 

 

 

*Not meaningful

Mechanical Solutions.  Gross profit for the three months ended March 31, 2016 increased $5.6 million and gross margin percentage improved to 14.4% compared with the corresponding period in 2015. The increase in gross margin percentage for the three months ended March 31, 2016 was primarily driven by a shift in improved order mix weighted toward more productive operations and a $2.0 million decline in contractual liquidated damages and warranty expense compared with the corresponding period in 2015.

Electrical Solutions.  Gross profit for the three months ended March 31, 2016 decreased $1.3 million compared with the corresponding period in 2015 despite higher revenue. The decrease in gross profit for the three months ended March 31, 2016 was the result of $1.6 million of estimated losses on contracts and contract cancellations. Due to the delayed filing of this Form 10-K, our subsequent event period remained open longer than normal. During 2017, we had updated job cost estimates that resulted in recording certain of these losses in the earliest open period impacted.

Services.  Gross profit for the three months ended March 31, 2016 decreased $0.2 million compared with the corresponding period in 2015 due to the loss of a maintenance and modification contract and related short-term projects derived from that contract, reduced volume associated with construction and support activities related to restart activities at a nuclear plant and the timing of a nuclear plant outage. These declines for the three months ended March 31, 2016 were largely offset by a non-recurring fixed-price project that was completed in 2015 where a loss was incurred.

Operating Expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

Selling and marketing expenses

 

$

2,578

 

$

2,888

 

(310)

 

(10.7)

General and administrative expenses

 

 

13,059

 

 

15,504

 

(2,445)

 

(15.8)

Restatement expenses

 

 

2,913

 

 

— 

 

2,913

 

100.0

Bargain purchase gain

 

 

— 

 

 

(3,168)

 

3,168

 

100.0

Depreciation and amortization expense (1)

 

 

2,216

 

 

2,058

 

158

 

7.7

Total

 

$

20,766

 

$

17,282

 

3,484

 

20.2


(1) Excludes depreciation and amortization expense for the three months ended March 31, 2016 and 2015 of $0.6 million and $0.5 million, respectively, included in cost of revenue.

Selling and Marketing Expenses.  Consolidated selling and marketing expenses for the three months ended March 31, 2016 decreased $0.3 million compared with the corresponding period in 2015. Selling and marketing expenses were 2.1% and 2.0% of revenue for the three months ended March 31, 2016 and 2015, respectively.

General and Administrative Expenses.  Consolidated general and administrative expenses for the three months ended March 31, 2016 decreased $2.4 million compared with the corresponding period in 2015 due primarily to declines of $0.7 million in severance, $0.5 million in travel and entertainment expenses and $0.4 million in acquisition costs compared with the corresponding period in 2015. The remaining decrease in general and administrative expenses for the three months ended March 31, 2016 was due to our overall cost-cutting efforts compared with the corresponding period in 2015.

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Restatement Expenses.  During the three months ended March 31, 2016 we incurred $2.9 million of expenses related to the restatement of our historical financial results compared with no restatement expenses in the corresponding period in 2015. The restatement efforts did not begin until May of 2015, whereas they were ongoing for the entire three month period in 2016. The restatement expenses primarily consisted of fees for legal and accounting services.

Bargain Purchase Gain.  During the three months ended March 31, 2015, we recognized a bargain purchase gain of $3.2 million related to the acquisition of the Siemens’ eHouse manufacturing operations. We did not recognize any bargain purchase gain during the three months ended March 31, 2016.

Depreciation and Amortization Expense.  Depreciation and amortization expense for the three months ended March 31, 2016 was relatively unchanged compared with the corresponding period in 2015.

Operating Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

Variance

($ in thousands)

 

 

2016

 

 

2015

 

$

 

%

Mechanical Solutions

 

$

1,474

 

$

(5,113)

 

6,587

 

128.8

Electrical Solutions

 

 

(2,716)

 

 

1,754

 

(4,470)

 

(254.8)

Services

 

 

3,551

 

 

2,363

 

1,188

 

50.3

Corporate

 

 

(8,264)

 

 

(5,514)

 

(2,750)

 

(49.9)

Total

 

$

(5,955)

 

$

(6,510)

 

555

 

8.5

 

Mechanical Solutions.  Operating income for the three months ended March 31, 2016 increased $6.6 million compared with the corresponding period in 2015 due primarily to a $5.6 million increase in gross profit and a $1.0 million reduction in operating expenses from lower wages and benefits and outside professional services.

Electrical Solutions.  Operating income for the three months ended March 31, 2016 decreased $4.5 million compared with the corresponding period in 2015 due to a decline in gross profit and the 2015 bargain purchase gain of $3.2 million related to the acquisition of the Siemens’ eHouse manufacturing operations.

Services.  Operating income for the three months ended March 31, 2016 increased $1.2 million compared with the corresponding period in 2015. Higher operating income for the three months ended March 31, 2016 reflects a $1.4 million decline in operating expenses driven by a reduction in headcount and travel expenses that more than offset lower gross profit compared with the corresponding period in 2015.

Corporate.  Operating loss for the three months ended March 31, 2016 increased $2.8 million compared with the corresponding period in 2015 primarily due to an increase in restatement expenses of $2.9 million. There were no restatement expenses in the corresponding period in 2015, as the restatement was not announced until May 2015.

Other Expense (Income)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

Variance

($ in thousands)

  

   

2016

  

 

2015

  

$

  

%

Interest expense, net

 

$

2,660

 

$

625

 

2,035

 

325.6

Foreign currency (gain) loss

 

 

308

 

 

(1,254)

 

1,562

 

124.6

Other expense (income), net

 

 

(5)

 

 

32

 

(37)

 

(115.6)

Total

 

$

2,963

 

$

(597)

 

3,560

 

596.3

 

Total other expense for the three months ended March 31, 2016 increased $3.6 million compared with the corresponding period in 2015. The increase in other expense for the three months ended March 31, 2016 was attributable to an increase in interest expense, net of $2.0 million and a $1.5 million decrease in foreign currency gain compared with the corresponding period in 2015. Higher interest charges for the three months ended March 31, 2016 were due to a higher average interest rate charged on our borrowings and an increase in the average borrowings outstanding compared with the corresponding period in 2015. The average amount of debt outstanding during the three months ended March 31, 2016 was $69.7 million compared with $49.0 million during the corresponding period in 2015. The decrease in foreign currency gain

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for the three months ended March 31, 2016 was primarily driven by changes in the exchange rates of the Euro and the Peso relative to the U.S. dollar compared with the corresponding period in 2015.

Income Tax Expense (Benefit)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

Income tax expense (benefit)

 

$

867

 

$

(879)

 

1,746

 

198.6

 

The effective tax rates for the three months ended March 31, 2016 and 2015 were (9.7)% and 14.5%, respectively.

The difference between our effective tax rate and the federal statutory tax rate for the three months ended March 31, 2016 and 2015, was related to the full valuation allowances recorded on our U.S. and certain foreign deferred tax assets and the income tax rate differential between our foreign jurisdictions in which we have taxable presences and the U.S. The increase in income tax provision of $1.7 million from March 31, 2015 to March 31, 2016 relates to an increase of foreign income tax expense and an increase in net deferred tax liabilities predominately related to indefinite-lived intangibles deferred tax liabilities that cannot be used to offset deferred tax assets subject to valuation allowances. Additionally, valuation allowances were recorded against deferred tax liabilities created through the bargain purchase gain recognized for financial reporting purposes during the three month period ended March 31, 2015, which was a discrete event.

Three and six months ended June 30, 2016 compared with three and six months ended June 30, 2015

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Variance

 

Six Months Ended June 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Mechanical Solutions

 

$

28,776

 

$

25,804

 

2,972

 

11.5

 

$

65,132

 

$

56,664

 

8,468

 

14.9

Electrical Solutions

 

 

22,202

 

 

23,134

 

(932)

 

(4.0)

 

 

39,839

 

 

38,059

 

1,780

 

4.7

Services

 

 

55,809

 

 

125,338

 

(69,529)

 

(55.5)

 

 

124,538

 

 

225,694

 

(101,156)

 

(44.8)

Total

 

$

106,787

 

$

174,276

 

(67,489)

 

(38.7)

 

$

229,509

 

$

320,417

 

(90,908)

 

(28.4)

 

Mechanical Solutions.  Revenue for the three months ended June 30, 2016 increased $3.0 million compared with the corresponding period in 2015 due primarily to incremental air intake system projects from the Middle East region, which more than offset a decline in U.S. business due to quality issues with two critical OEMs.

Revenue for the six months ended June 30, 2016 increased $8.5 million compared with the corresponding period in 2015, primarily as a result of incremental project work in the Middle East region. Additionally, there were $1.0 million in liquidated damage charges to revenue in 2015 that did not recur in 2016.

Electrical Solutions.  Revenue for the three months ended June 30, 2016 decreased $0.9 million compared with the corresponding period in 2015 due primarily to  the timing of delivery dates driven by customers’ project construction schedules.  

Revenue for the six months ended June 30, 2016 increased $1.8 million compared with the corresponding period in 2015 as a result of the shipment of a multi-unit generator enclosure.

Services.  Revenue for the three and six months ended June 30, 2016 decreased $69.5 million and $101.2 million, respectively, compared with the corresponding periods in 2015 due to the timing of a scheduled outage related to a maintenance and modification contract. The timing of the scheduled outage resulted in a decline in revenue of $25.8 million and $28.7 million for the three and six months ended June 30, 2016, respectively, compared with the corresponding periods in 2015. Additionally, the loss of a maintenance and modification contract and associated project work reduced revenue $21.0 million and $42.6 million for the three and six months ended June 30, 2016, respectively, compared with the corresponding periods in 2015. We also experienced a decline in revenue of $17.4 million and $18.6 million for the three and six months ended June 30, 2016, respectively, related to the substantial completion of construction and support services for the restart of a new build nuclear reactor compared with the corresponding periods in 2015. Included in revenue for the three

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and six months ended June 30, 2015 was an oil and gas terminal project that generated $4.7 million and $13.7 million, respectively, in revenue.

Gross (Loss) Profit / Margin %

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Variance

 

Six Months Ended June 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Mechanical Solutions

 

$

1,843

 

$

5,728

 

(3,885)

 

(67.8)

 

$

7,067

 

$

5,386

 

1,681

 

31.2

Gross Margin %

 

 

6.4

%

 

22.2

%

 

 

 

 

 

10.9

%

 

9.5

%

 

 

 

Electrical Solutions

 

 

1,979

 

 

(6,181)

 

8,160

 

132.0

 

 

1,962

 

 

(4,856)

 

6,818

 

140.4

Gross Margin %

 

 

8.9

%

 

(26.7)

%

 

 

 

 

 

4.9

%

 

(12.8)

%

 

 

 

Services

 

$

5,464

 

$

18,401

 

(12,937)

 

(70.3)

 

$

15,068

 

$

28,190

 

(13,122)

 

(46.5)

Gross Margin %

 

 

9.8

%

 

14.7

%

 

 

 

 

 

12.1

%

 

12.5

%

 

 

 

Total Gross Profit

 

$

9,286

 

$

17,948

 

(8,662)

 

(48.3)

 

$

24,097

 

$

28,720

 

(4,623)

 

(16.1)

Gross Margin %

 

 

8.7

%

 

10.3

%

 

 

 

 

 

10.5

%

 

9.0

%

 

 

 

 

Mechanical Solutions.  Gross profit for the three months ended June 30, 2016 decreased $3.9 million on higher revenue of $3.0 million compared with the corresponding period in 2015. The decrease in gross profit for the three months ended June 30, 2016 was due primarily to a $2.0 million loss contract accrual compared with the corresponding period in 2015. Additionally, for the three months ended June 30, 2016, gross margin percentage declined for our U.S. business as overhead and cost inefficiencies had a greater effect on margin compared with the corresponding period in 2015. Gross profit for the six months ended June 30, 2016 increased $1.7 million on higher revenue of $8.5 million compared with the corresponding period in 2015.

Electrical Solutions.  Gross profit for the three and six months ended June 30, 2016 increased $8.2 million and $6.8 million, respectively, compared with the corresponding periods in 2015 due primarily to correcting operational inefficiencies experienced in our Chattanooga plant.

Services.  Gross profit for the three and six months ended June 30, 2016 decreased $12.9 million and $13.1 million, respectively, compared with the corresponding periods in 2015 due primarily to lower revenue as previously noted. Gross profit for the three months ended June 30, 2016 was adversely impacted by fewer fixed-price contracts associated with a maintenance and modification contract that was not renewed compared with the corresponding period in 2015. Gross profit for the six months ended June 30, 2016 was adversely impacted by a loss on a non-recurring fixed-price project compared with the corresponding period in 2015.

Operating Expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Variance

 

Six Months Ended June 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Selling and marketing expenses

 

$

2,639

 

$

3,438

 

(799)

 

(23.2)

 

$

5,217

 

$

6,326

 

(1,109)

 

(17.5)

General and administrative expenses

 

 

12,652

 

 

13,162

 

(510)

 

(3.9)

 

 

25,711

 

 

28,666

 

(2,955)

 

(10.3)

Restatement expenses

 

 

1,542

 

 

1,615

 

(73)

 

(4.5)

 

 

4,455

 

 

1,615

 

2,840

 

175.9

Loss on sale of business and net assets held for sale

 

 

8,193

 

 

— 

 

8,193

 

100.0

 

 

8,193

 

 

— 

 

8,193

 

100.0

Bargain purchase gain

 

 

— 

 

 

— 

 

— 

 

— 

 

 

— 

 

 

(3,168)

 

3,168

 

100.0

Depreciation and amortization expense (1)

 

 

2,193

 

 

2,120

 

73

 

3.4

 

 

4,409

 

 

4,178

 

231

 

5.5

Total

 

$

27,219

 

$

20,335

 

6,884

 

33.9

 

$

47,985

 

$

37,617

 

10,368

 

27.6


(1) Excludes depreciation and amortization expense for the three and six months ended June 30, 2016 and June 30, 2015 of $0.6 million, $1.2 million, $0.6 million and $1.1 million, respectively, included in cost of revenue.

Selling and Marketing Expenses.  Selling and marketing expenses for the three months ended June 30, 2016 decreased $0.8 million compared with the corresponding period in 2015 due to a $0.6 million decline in bad debt expense.

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The remaining decrease for the three months ended June 30, 2016 was due to our overall cost -cutting efforts compared with the corresponding period in 2015.

Selling and marketing expenses for the six months ended June 30, 2016 decreased $1.1 million compared with the corresponding period in 2015 due to a $0.5 million reduction in sales bonuses and a $0.5 million reduction in bad debt expense.

General and Administrative Expenses.  General and administrative expenses for the three months ended June 30, 2016 decreased $0.5 million compared with the corresponding period in 2015 due primarily to our cost-cutting efforts compared with the corresponding period in 2015.

General and administrative expenses for the six months ended June 30, 2016 decreased $3.0 million compared with the corresponding period in 2015 due primarily to decreases in travel and entertainment expenses of $0.8 million, share-based compensation of $0.6 million and acquisition costs of $0.4 million. The remaining decrease in general and administrative expenses for the six months ended June 30, 2016 was a result of our cost-cutting efforts compared with the corresponding period in 2015.

Restatement Expenses.  During the three months ended June 30, 2016, we incurred $1.5 million of expenses related to the restatement of our historical financial results compared with $1.6 million during the corresponding period in 2015.

Restatement expenses for the six months ended June 30, 2016 increased $2.8 million compared with the corresponding period in 2015. The increase in restatement expenses for the six months ended June 30, 2016 was due to the fact that the restatement efforts did not begin until May of 2015, whereas it was ongoing for the entire six month period in 2016. The restatement expenses primarily consisted of fees for legal and accounting services.

Loss on Sale of Business and Net Assets Held for Sale .  During the three and six months ended June 30, 2016, we engaged a financial advisor to assist with the sale of our wholly owned subsidiary, Hetsco, in order to pay down debt. In connection with our decision to sell Hetsco, we adjusted the net assets to estimated fair value less estimated selling expenses which resulted in a write-down of $8.2 million. Hetsco was included in our Services segment. No such write-downs occurred during the corresponding periods in 2015.

Bargain Purchase Gain.  During the six months ended June 30, 2015, we recognized a bargain purchase gain of $3.2 million on the acquisition of the Siemens’ eHouse manufacturing operations. The bargain purchase was primarily the result of the divesture by Siemens outside its core business and has been included in our Electrical Solutions segment since the acquisition. No such purchases were made during the three months ended June 30, 2016 and 2015 or during the six months ended June 30, 2016.

Depreciation and Amortization Expense.  Depreciation and amortization expense for the three months ended June 30, 2016 remained relatively unchanged compared with the corresponding period in 2015.

Depreciation and amortization expense for the six months ended June 30, 2016 increased $0.2 million compared with the corresponding period in 2015 due to the acquisition of the Siemen’s eHouse assets in February 2015.

Operating Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Variance

 

Six Months Ended June 30,

 

Variance

($ in thousands)

 

 

2016

 

 

2015

 

$

 

%

 

 

2016

 

 

2015

 

$

 

%

Mechanical Solutions

 

$

(1,813)

 

$

1,622

 

(3,435)

 

(211.8)

 

$

(339)

 

$

(3,491)

 

3,152

 

90.3

Electrical Solutions

 

 

(473)

 

 

(8,813)

 

8,340

 

94.6

 

 

(3,189)

 

 

(7,059)

 

3,870

 

54.8

Services

 

 

(8,732)

 

 

11,413

 

(20,145)

 

(176.5)

 

 

(5,181)

 

 

13,776

 

(18,957)

 

(137.6)

Corporate

 

 

(6,915)

 

 

(6,609)

 

(306)

 

(4.6)

 

 

(15,179)

 

 

(12,123)

 

(3,056)

 

(25.2)

Total

 

$

(17,933)

 

$

(2,387)

 

(15,546)

 

(651.3)

 

$

(23,888)

 

$

(8,897)

 

(14,991)

 

(168.5)

 

Mechanical Solutions.  Operating income for the three months ended June 30, 2015 decreased $3.4 million compared with the corresponding period in 2015 due to lower gross profit. Operating income for the six months ended June

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30, 2016 increased $3.2 million compared with the corresponding period in 2015 on higher gross profit and a $1.5 million decline in operating expenses from lower wages and benefits, as well as a decline in outside professional services.

Electrical Solutions.  Operating loss for the three months ended June 30, 2016 decreased $8.3 million compared with the corresponding period in 2015 due primarily an $8.2 million increase in gross profit. Operating loss for the six months ended June 30, 2016 decreased $3.9 million compared with the corresponding period in 2015 due, in part, to a $6.8 million increase in gross profit. Additionally, operating loss for the six months ended June 30, 2015 benefited as a result of the $3.2 million bargain purchase gain recorded on the acquisition of the Siemens’ eHouse manufacturing operations.

Services.  Operating income for the three and six months ended June 30, 2016 decreased $20.1 million and $19.0 million, respectively, compared with the corresponding periods in 2015 as a result of declining gross margins of $12.9 million and $13.1 million, respectively, compared with the corresponding periods in 2015. Additionally, for the three and six months ended June 30, 2016, this segment recorded a loss of $8.2 million related to net assets held for sale on our Hetsco business compared with the corresponding periods in 2015.

Corporate.  Corporate operating loss for the three months ended June 30, 2016 increased $0.3 million compared with the corresponding period in 2015 due primarily to an increase in bonus expense of $0.5 million. The increase in operating loss for the three months ended June 30, 2016 was partially offset by our cost-cutting efforts compared with the corresponding period in 2015.

Corporate operating loss for the six months ended June 30, 2016 increased $3.1 million compared with the corresponding period in 2015. The increase in operating loss for the six months ended June 30, 2016 was primarily due to increased expenses related to the restatement of our historical financial results compared with the corresponding period in 2015.

Other Expense (Income)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Variance

 

Six Months Ended June 30,

 

Variance

($ in thousands)

  

   

2016

  

 

2015

  

$

  

%

  

   

2016

  

 

2015

  

$

  

%

Interest expense, net

 

$

1,997

 

$

830

 

1,167

 

140.6

 

$

4,657

 

$

1,455

 

3,202

 

220.1

Foreign currency (gain) loss

 

 

(129)

 

 

144

 

(273)

 

(189.6)

 

 

179

 

 

(1,110)

 

1,289

 

116.1

Other expense (income), net

 

 

64

 

 

(39)

 

103

 

264.1

 

 

59

 

 

(7)

 

66

 

942.9

Total

 

$

1,932

 

$

935

 

997

 

106.6

 

$

4,895

 

$

338

 

4,557

 

1,348.2

 

Total other expense for the three months ended June 30, 2016 increased $1.0 million compared with $0.9 million for the corresponding period in 2015. The increase for the three months ended June 30, 2016 was due primarily to a $1.2 million increase in interest expense, net compared with the corresponding period in 2015. Interest expense, net increased for the three months ended June 30, 2016 due to higher average interest rates and a higher average outstanding debt balance of $69.2 million, compared with an average outstanding debt balance of $61.5 million for the corresponding period in 2015.

Total other expense for the six months ended June 30, 2016 increased $4.6 million compared with the corresponding period in 2015. The increase for the six months ended June 30, 2016 was due primarily to an increase in interest expense of $3.2 million, which was the result of higher average interest rates, a higher outstanding debt balance and an increase in foreign currency losses compared with the corresponding period in 2015.

Income Tax Expense (Benefit)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Variance

 

Six Months Ended June 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Income tax expense

 

$

247

 

$

576

 

(329)

 

(57.1)

 

$

1,114

 

$

(303)

 

1,417

 

467.7

 

The effective tax rates for the three months ended June 30, 2016 and 2015 were (1.2)% and (17.4)%, respectively. The effective tax rates for the six months ended June 30, 2016 and 2015 were (3.9)% and 3.2%, respectively. The change between the effective tax rates during the three and six months ended June 30, 2016 and 2015 primarily related to the full valuation allowances recorded on our U.S. and certain foreign deferred tax assets, the income tax rate differential between

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our foreign jurisdictions in which we have taxable presences and the U.S. and the reductions to unrecognized tax benefits resulting from the lapse of statutes of limitations in the respective tax jurisdictions.

The increase in income tax provision of $1.4 million from the six months ended June 30, 2015 to the six months ended June 30, 2016 relates to an increase of foreign income tax expense and an increase in net deferred tax liabilities predominately related to indefinite-lived intangibles deferred tax liabilities that cannot be used to offset deferred tax assets subject to valuation allowances. Additionally, valuation allowances were recorded against deferred tax liabilities created through the bargain purchase gain recognized for financial reporting purposes during the six month period ended June 30, 2015, which was a discrete event.

Three and nine months ended September 30, 2016 compared with three and nine months ended September 30, 2015

Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended September 30,

 

Variance

 

Nine Months Ended September 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Mechanical Solutions

 

$

19,398

 

$

28,984

 

(9,586)

 

(33.1)

 

$

84,530

 

$

85,648

 

(1,118)

 

(1.3)

Electrical Solutions

 

 

18,682

 

 

26,312

 

(7,630)

 

(29.0)

 

 

58,521

 

 

64,371

 

(5,850)

 

(9.1)

Services

 

 

47,364

 

 

68,866

 

(21,502)

 

(31.2)

 

 

171,902

 

 

294,560

 

(122,658)

 

(41.6)

Total

 

$

85,444

 

$

124,162

 

(38,718)

 

(31.2)

 

$

314,953

 

$

444,579

 

(129,626)

 

(29.2)

 

Mechanical Solutions.  Revenue for the three months ended September 30, 2016 decreased $9.6 million compared with the corresponding period in 2015. The decrease in revenue for the three months ended September 30, 2016 compared with the corresponding period in 2015 was due to a $5.1 million decline in aftermarket and parts revenue as a result of the sale of TOG and a major customer moving certain products to a competitor. The remaining decline in revenue for the three months ended September 30, 2016 was attributed to declines in two product lines affected by quality issues with two OEMs, which were partially offset by an increase in projects in the Middle East and an increase in diverter and diffuser product orders compared with the corresponding period in 2015.

Revenue for the nine months ended September 30, 2016 decreased $1.1 million compared with the corresponding period in 2015 due to a decline in project work for two product lines affected by quality issues with two OEMs.

Electrical Solutions.  Revenue for the three and nine months ended September 30, 2016 decreased $7.6 million and $5.9 million respectively, compared with the corresponding periods in 2015 largely as a result of a reduction in orders during the first half of 2016.

Services.  Revenue for the three and nine months ended September 30, 2016 decreased $21.5 million and $122.7 million, respectively, compared with the corresponding periods in 2015. The decline in revenue for the three and nine months ended September 30, 2016 was driven by the completion of a construction and support services project related to restart activities for a new build nuclear facility, which accounted for a $21.3 million and $39.9 million decline in revenue, respectively, compared with the corresponding periods in 2015. Additionally, for the nine months ended September 30, 2016, revenue declined $28.0 million as a result of the timing of a scheduled outage compared with the corresponding period in 2015. Revenue also declined $52.3 million for the nine month period ended September 30, 2016 due to the loss of a maintenance and modification contract with a different customer and associated project work compared with the corresponding period in 2015.

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Gross Profit / Margin %

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended September 30,

 

Variance

 

Nine Months Ended September 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Mechanical Solutions

 

$

3,649

 

$

1,180

 

2,469

 

209.2

 

$

10,716

 

$

6,566

 

4,150

 

63.2

Gross Margin %

 

 

18.8

%

 

4.1

%

 

 

 

 

 

12.7

%

 

7.7

%

 

 

 

Electrical Solutions

 

 

2,612

 

 

4,447

 

(1,835)

 

(41.3)

 

 

4,574

 

 

(409)

 

4,983

 

NM*

Gross Margin %

 

 

14.0

%

 

16.9

%

 

 

 

 

 

7.8

%

 

(0.6)

%

 

 

 

Services

 

$

6,676

 

$

9,305

 

(2,629)

 

(28.3)

 

$

21,744

 

$

37,495

 

(15,751)

 

(42.0)

Gross Margin %

 

 

14.1

%

 

13.5

%

 

 

 

 

 

12.6

%

 

12.7

%

 

 

 

Total Gross Profit

 

$

12,937

 

$

14,932

 

(1,995)

 

(13.4)

 

$

37,034

 

$

43,652

 

(6,618)

 

(15.2)

Gross Margin %

 

 

15.1

%

 

12.0

%

 

 

 

 

 

11.8

%

 

9.8

%

 

 

 

*Not meaningful

Mechanical Solutions.  Gross profit for the three months ended September 30, 2016 increased $2.5 million on lower revenue compared with the corresponding period in 2015. The increase in gross profit for the three months ended September 30, 2016 was due to a change in order mix to higher margin projects compared with the corresponding period in 2015.

Gross profit for the nine months ended September 30, 2016 increased $4.2 million on lower revenue compared with the corresponding period in 2015 and expanded gross margin percentage from 7.7% to 12.7% as a result of a $2.1 million decline in warranty expense and the normal fluctuation in the timing and magnitude of our contract mix.

Electrical Solutions.  Gross profit for the three months ended September 30, 2016 decreased $1.8 million on lower revenue compared with the corresponding period in 2015 and contracted gross margin percentage from 16.9% to 14.0%, due primarily to lower volume, under-utilization of production operations and higher production costs.

Gross profit for the nine months ended September 30 increased $5.0 million on lower revenue compared with the corresponding period in 2015 as the positive effect of correcting operational inefficiencies in our Chattanooga plant improved our overall performance.

Services.  Gross profit for the three and nine months ended September 30, 2016 decreased $2.6 million and $15.8 million, respectively, compared with the corresponding periods in 2015 due primarily to lower revenue for the reasons stated previously.

Operating Expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended September 30,

 

Variance

 

Nine Months Ended September 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Selling and marketing expenses

 

$

2,126

 

$

3,028

 

(902)

 

(29.8)

 

$

7,343

 

$

9,354

 

(2,011)

 

(21.5)

General and administrative expenses

 

 

12,356

 

 

13,241

 

(885)

 

(6.7)

 

 

38,067

 

 

41,907

 

(3,840)

 

(9.2)

Restatement expenses

 

 

1,132

 

 

6,796

 

(5,664)

 

(83.3)

 

 

5,587

 

 

8,411

 

(2,824)

 

(33.6)

Loss on sale of business and net assets held for sale

 

 

495

 

 

— 

 

495

 

100.0

 

 

8,688

 

 

— 

 

8,688

 

100.0

Impairment expense

 

 

— 

 

 

47,751

 

(47,751)

 

(100.0)

 

 

— 

 

 

47,751

 

(47,751)

 

(100.0)

Bargain purchase gain

 

 

— 

 

 

— 

 

— 

 

— 

 

 

— 

 

 

(3,168)

 

3,168

 

100.0

Depreciation and amortization expense (1)

 

 

1,412

 

 

2,217

 

(805)

 

(36.3)

 

 

5,821

 

 

6,395

 

(574)

 

(9.0)

Total

 

$

17,521

 

$

73,033

 

(55,512)

 

(76.0)

 

$

65,506

 

$

110,650

 

(45,144)

 

(40.8)


(1) Excludes depreciation and amortization expense for the three and nine months ended September 30, 2016 and September 30, 2015 of $0.6 million, $1.8 million, $0.6 million and $1.7 million, respectively, included in cost of revenue.

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Selling and Marketing Expenses.  Selling and marketing expenses for the three months ended September 30, 2016 decreased $0.9 million compared with the corresponding period in 2015 due to $0.4 million lower bad debt expense and our cost-cutting initiatives, which included a decrease in recruiting expense of $0.2 million and a decrease in travel and entertainment expenses of $0.1 million compared with the corresponding period in 2015.

Selling and marketing expenses for the nine months ended September 30, 2016 decreased $2.0 million compared with the corresponding period in 2015. The decline in selling and marketing expenses for the nine months ended September 30, 2016 was due primarily to lower bad debt expense of $0.9 million, a decrease in sales commissions of $0.6 million and a decrease in travel and entertainment expenses of $0.2 million compared with the corresponding period in 2015. The remaining decrease in selling and marketing expenses for the nine months ended September 30, 2016 was due to our overall cost-cutting efforts compared with the corresponding period in 2015.

General and Administrative Expenses.  General and administrative expenses for the three months ended September 30, 2016 decreased $0.9 million compared with the corresponding period in 2015. The decrease in general and administrative expenses for the three months ended September 30, 2016 was due primarily to a reduction in travel and entertainment expenses of $0.4 million and a reduction in recruiting expense of $0.3 million compared with the corresponding period in 2015.

General and administrative expenses for the nine months ended September 30, 2016 decreased $3.8 million compared with the corresponding period in 2015 due primarily to decreases of $1.2 million in travel and entertainment expenses, $1.1 million in share-based compensation expenses, $0.4 million in recruiting expenses and $0.4 million in acquisition costs.

Restatement Expenses.  Restatement expenses for the three and nine months ended September 30, 2016 decreased $5.7 million and $2.8 million, respectively, compared with the corresponding periods in 2015. The decrease in restatement expenses for the three and nine months ended September 30, 2016 compared with the corresponding period in 2015 was due to the initial costs incurred in our internal investigation of the facts and circumstances related to our determination to restate certain of our historical financial results. We expect to incur additional expenses related to the restatement in 2017. Such expenses will include audit and legal, as the restatement was not completed until March 2017. Additionally, there have been document requests from regulators since the filing in March 2017 that have continued to require legal and auditor involvement. The restatement expenses primarily consisted of fees for legal and accounting services.

Loss on Sale of Business and Net Assets Held for Sale .  Loss on sale of business and net assets held for sale for the three months ended September 30, 2016 increased $0.5 million compared with the corresponding period in 2015 due to a loss on the sale of our wholly owned subsidiary, TOG.

Loss on the sale of business and net assets held for sale for the nine months ended September 30, 2016 increased $8.7 million compared with the corresponding period in 2015 due primarily to a write-down of $8.2 million on our net assets held for sale related to the sale of Hetsco. The remaining increase in loss on sale of business and net assets held for sale for the nine months ended September 30, 2016 was due to a $0.5 million loss on the sale of our wholly owned subsidiary, TOG, compared with the corresponding period in 2015.

Impairment Expense.  For the three and nine months ended September 30, 2015, we recorded impairment charges of $47.8 million. Of the $47.8 million total impairment charges recorded for the three and nine months ended September 30, 2015, $37.6 million was due to goodwill impairments and $9.6 million was due to indefinite-lived intangibles impairments, which resulted from the market value of our common stock trading at a price that was lower than the book value of our Company for an extended period. Additionally, we recorded an impairment charge of $0.6 million for the three and nine months ended September 30, 2015 on one of our manufacturing facilities. No such impairment charges were recorded for the three and nine months ended September 30, 2016.

Bargain Purchase Gain.  For the nine months ended September 30, 2015, we recognized a bargain purchase gain of $3.2 million on the acquisition of the Siemens’ eHouse manufacturing operations. The bargain purchase was primarily the result of the divesture by Siemens outside its core business and has been included in our Electrical Solutions segment since the acquisition. No such purchases were made during the three months ended September 30, 2016 and 2015 or during the nine months ended September 30, 2016.

Depreciation and Amortization Expense.  Depreciation and amortization expense for the three and nine months ended September 30, 2016 decreased $0.8 million and $0.6 million, respectively, compared with the corresponding periods in  

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2015 due to the sale of TOG in July 2016, which reduced our depreciable assets compared with the corresponding periods in 2015. Additionally, our decision to classify our Hetsco business as “assets held for sale” in June 2016, stopped further depreciation and amortization charges.

Operating Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended September 30,

 

Variance

 

Nine Months Ended September 30,

 

Variance

($ in thousands)

 

 

2016

 

 

2015

 

$

 

%

 

 

2016

 

 

2015

 

$

 

%

Mechanical Solutions

 

$

517

 

$

(27,650)

 

28,167

 

101.9

 

$

178

 

$

(31,141)

 

31,319

 

100.6

Electrical Solutions

 

 

242

 

 

(16,958)

 

17,200

 

101.4

 

 

(2,947)

 

 

(24,017)

 

21,070

 

87.7

Services

 

 

1,556

 

 

(1,871)

 

3,427

 

183.2

 

 

(3,625)

 

 

11,905

 

(15,530)

 

(130.4)

Corporate

 

 

(6,899)

 

 

(11,622)

 

4,723

 

40.6

 

 

(22,078)

 

 

(23,745)

 

1,667

 

7.0

Total

 

$

(4,584)

 

$

(58,101)

 

53,517

 

92.1

 

$

(28,472)

 

$

(66,998)

 

38,526

 

57.5

 

Mechanical Solutions.  Operating loss for the three months ended September 30, 2016 decreased $28.2 million compared with the corresponding period in 2015 due primarily to $23.9 million of impairment expense related to our goodwill and other intangible assets recognized in 2015. Operating loss for the nine months ended September 30, 2016 decreased $31.3 million compared with the corresponding period in 2015 due primarily to $23.9 million of impairment expense related to our goodwill and other intangible assets recognized in 2015 and a $3.3 million reduction in operating expenses from lower wages and benefits and outside professional services.

Electrical Solutions.  Operating loss for the three and nine months ended September 30, 2016 decreased $17.2 million and $21.1 million, respectively, compared with the corresponding periods in 2015, due primarily to $19.1 million of impairment charges related to our goodwill and indefinite-lived intangible assets recognized during the respective 2015 periods. No such impairment charges were recognized during the three and nine months ended September 30, 2016.

Services.  Operating income for the three months ended September 30, 2016 increased $3.4 million compared with the corresponding period in 2015, due primarily to $4.2 million of impairment expense related to goodwill and trade names specific to our Hetsco business that was recognized in 2015.

Operating income for the nine months ended September 30, 2016 decreased $15.5 million to a loss of $3.6 million from income of $11.9 million in the corresponding period in 2015 due primarily to the gross margins associated with the loss of the large maintenance and modification contract and short term projects at these sites, substantial completion of construction and support services related to restart activities at a nuclear plant and the timing of scheduled outages for a separate nuclear customer. These events accounted for approximately $14.2 million of the decline in operating income for the nine months ended September 30, 2016.

Corporate.  Operating loss for the three months ended September 30, 2016 decreased $4.7 million compared with the corresponding period in 2015 due to a reduction in restatement expenses of $5.7 million compared with corresponding period in 2015. The decrease in operating loss for the three months ended September 30, 2016 was offset by an increase in bank fees related to our covenant waivers of $0.5 million, a $0.5 million increase related to a loss on sale of fixed assets and an increase of $0.3 million in audit fees, not related to the restatement of our historical financial statements compared with the corresponding period in 2015.

Operating loss for the nine months ended September 30, 2016 decreased $1.7 compared with the corresponding period in 2015 due to a decrease in restatement expenses of $2.8 million. The decrease in restatement expenses for the nine months ended September 30, 2016 was partially offset by a $1.2 million increase in bonus expense compared with the corresponding period in 2015.

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Other Expense (Income)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended September 30,

 

Variance

 

Nine Months Ended September 30,

 

Variance

($ in thousands)

  

   

2016

  

 

2015

  

$

  

%

  

   

2016

  

 

2015

  

$

  

%

Interest expense, net

 

$

1,764

 

$

953

 

811

 

85.1

 

$

6,421

 

$

2,408

 

4,013

 

166.7

Foreign currency (gain) loss

 

 

83

 

 

(55)

 

138

 

250.9

 

 

262

 

 

(1,165)

 

1,427

 

122.5

Other income, net

 

 

(109)

 

 

(2)

 

(107)

 

NM*

 

 

(50)

 

 

(9)

 

(41)

 

(455.6)

Total

 

$

1,738

 

$

896

 

842

 

94.0

 

$

6,633

 

$

1,234

 

5,399

 

437.5

*Not meaningful

Total other expense for the three months ended September 30, 2016 increased $0.8 million compared with the corresponding period in 2015 due primarily to an increase in interest expense, net of $0.8 million and a loss of $0.1 million on foreign currency translation compared with the corresponding period in 2015. The increase in interest expense, net for the three months ended September 30, 2016 was due to higher average interest rates compared with the corresponding period in 2015. For the three and nine months ended September 30, 2016, the loss on foreign currency was largely driven by changes in the exchange rates of the Euro relative to the U.S. dollar compared with the corresponding periods in 2015.

Total other expense for the nine months ended September 30, 2016 increased $5.4 million compared with the corresponding period in 2015 due primarily to an increase in interest expense, net of $4.0 million compared with the corresponding period in 2015. The increase in interest expense, net for the nine months ended September 30, 2016 was due to higher average interest rates and a higher average outstanding debt balance of $62.0 compared with an average outstanding debt balance of $57.5 million for the corresponding period in 2015.

Income Tax Expense (Benefit)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended September 30,

 

Variance

 

Nine Months Ended September 30,

 

Variance

($ in thousands)

  

 

2016

  

 

2015

  

$

  

%

  

 

2016

  

 

2015

  

$

  

%

Income tax expense (benefit)

 

$

408

 

$

(7,192)

 

7,600

 

105.7

 

$

1,522

 

$

(7,495)

 

9,017

 

120.3

 

The effective tax rates for the three months ended September 30, 2016 and 2015 were (6.5)% and 12.2%, respectively. The effective tax rates for the nine months ended September 30, 2016 and 2015 were (4.3)% and 11.0%, respectively. The change between the effective tax rates during the three and nine months ended September 30, 2016 and 2015 related primarily to the full valuation allowances recorded on our U.S. and certain foreign deferred tax assets, the income tax rate differential between our foreign jurisdictions in which we have taxable presences and the U.S. and the reductions to unrecognized tax benefits resulting from the lapse of statues of limitations in the respective tax jurisdictions.

The increase in income tax provision of $9.0 million from the nine months ended September 30, 2015 to the nine months ended September 30, 2016 related to an increase of foreign income tax expense and an increase in net deferred tax liabilities predominately related to indefinite-lived intangibles deferred tax liabilities that cannot be used to offset deferred tax assets subject to valuation allowances. Additionally, valuation allowances were recorded against deferred tax liabilities created through the bargain purchase gain recognized for financial reporting purposes during the nine month period ended September 30, 2015, which was a discrete event.

 

Liquidity and Capital Resources

As of December 31, 2016, our principal sources of liquidity were cash on hand and borrowings under our Revolving Credit Facility. However, as of both December 31, 2016 and December 31, 2015, we were not in compliance with the covenants contained in our Revolving Credit Facility. Beginning on July 22, 2016, the administrative agent under our Revolving Credit Facility exercised rights that enabled it to control certain of our accounts by implementing a cash dominion process to use receipts of collateral to directly pay down debt, while allowing us to borrow subject to certain restrictions. As a result, our liquidity was constrained throughout 2016, and during that time we generated additional liquidity through working capital management. Cash generated from asset sales was used to pay down $24.7 million under our Revolving Credit Facility in 2016. Our principal uses of cash were to pay for customer contract-related material, labor and subcontract labor, operating expenses, interest expense on our Revolving Credit Facility, restatement-related expenses and capital assets.

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In June 2017, we repaid the remainder of amounts due under our Revolving Credit Facility when we entered into the Centre Lane Facility. See discussion below under “Our Credit Facilities.” Nonetheless, our liquidity constraints have continued into 2017, and we continue to rely on working capital management and funds from the Centre Lane Amendment as our principal source of liquidity.

Cash and Cash Equivalents

As of December 31, 2016, our operating unrestricted cash and cash equivalents decreased 87.4%, or $19.4 million, to $2.8 million from $22.2 million as of December 31, 2015. The operating cash balance of $2.8 million as of December 31, 2016 consisted of $(0.4) million of U.S. cash and $3.2 million of non-U.S. cash. The U.S. cash decrease was partially attributable to the implementation of the cash dominion process as we used cash receipts to directly pay down debt, as well as the cash collateralization of $8.4 million in letters of credit. As of the third quarter of 2015, cash from our Netherlands-based subsidiaries was available to fund U.S. operations because we withdrew the permanent reinvestment assertion on the undistributed earnings of our Netherlands-based subsidiaries. Non-U.S. cash from our other foreign subsidiaries was generally not available to fund U.S. operations in 2016. The operating cash balance of $22.2 million as of December 31, 2015 consisted of $12.6 million of U.S. cash and $9.6 million of non-U.S. cash.

At December 31, 2016, we had $2.8 million in cash and cash equivalents that could be used, along with normal cash flows from operations, to fund certain unanticipated shortfalls in future cash flows.

At September 5, 2017, we had $15.2 million in cash and cash equivalents that could be used, along with normal cash flows from operations, to fund certain unanticipated shortfalls in future cash flows.

Our Credit Facilities

Revolving Credit Facility

On February 21, 2012, we entered into a $100.0 million Revolving Credit Facility with Wells Fargo Bank, National Association, as Administrative Agent, U.S. Bank National Association, as Syndication Agent and the various lending institutions party thereto. Effective December 17, 2013, we exercised our rights under the accordion feature pursuant to and in accordance with the terms of our Revolving Credit Facility and increased the revolving credit commitments available to us under our Revolving Credit Facility from $100.0 million to $150.0 million. We gave a first priority lien on substantially all of our assets as security for our Revolving Credit Facility, which had a maturity date of February 21, 2017 until that maturity date was extended to June 12, 2017. In June 2017, we entered into the Centre Lane Facility and repaid the full outstanding balance due under the Revolving Credit Facility.

As of December 31, 2016, we had $45.3 million outstanding under our Revolving Credit Facility, we were not in compliance with the financial and certain other covenants contained in our Revolving Credit Facility, and we did not have any available borrowing capacity under our Revolving Credit Facility.

As a result of our non-compliance with the covenants under our Revolving Credit Facility, on a number of occasions in 2015, 2016 and 2017, we entered into amendments and limited waivers with the lenders under our Revolving Credit Facility. These amendments and limited waivers were in effect as of December 31, 2016. Pursuant to the terms of such amendments and limited waivers, our Revolving Credit Facility provided a total available commitment of $67.0 million and borrowings were capped at $51.8 million, exclusive of outstanding standby letters of credit and other restrictions. As of December 31, 2016, the facility had a reduced revolving letter of credit facility of up to $13.5 million, which no longer provided access to multi-currency funds. Subsequent to December 31, 2016, the commitment level was reduced as assets were sold and proceeds were used to repay debt. As of January 31, 2017, borrowings and letters of credit were capped at $31.6 million and $13.5 million, respectively.

While it was in effect, our Revolving Credit Facility included affirmative and negative covenants, including customary limitations on securing additional debt and liens and restrictions on transactions and payments, as well as the following two financial covenants:

·

Our maximum consolidated leverage ratio could not exceed specified limits. For these purposes, our consolidated leverage ratio on any date was the ratio of our consolidated funded indebtedness to our consolidated EBITDA for the four most recent quarters. The agreement defined EBITDA as net income (loss) plus interest expense, net of interest income, income taxes, stock based compensation and depreciation and amortization.

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·

Our consolidated interest coverage ratio was required to be maintained at least at specified minimum levels. For these purposes, our consolidated interest coverage ratio was defined as the ratio of (a) our consolidated EBITDA for the four most recent quarters to (b) our consolidated interest expense (consisting of all Global Power interest) for that period.

The following were considered defaults under our Revolving Credit Facility:

·

Failure to comply with any of the financial covenants;

·

Failure to comply with certain other customary affirmative or negative covenants;

·

Failure to make payments when due;

·

Becoming subject to insolvency proceedings; or

·

Experiencing a change of control.

For these purposes, a change of control would have occurred if any one person or group obtained control of more than 25% ownership, unless they were an investor on February 21, 2012, in which case the ownership percentage would have needed to be more than 40% for a change of control to occur, or if continuing directors were to cease to constitute at least a majority of the members of our Board of Directors. 

As of December 31, 2016, we were subject to interest rate changes on our LIBOR-based variable interest rate under our Revolving Credit Facility. During 2016, we borrowed $116.4 million on our Revolving Credit Facility, and we repaid $141.1 million. As of December 31, 2016, the outstanding principal balance of revolving credit loans on our Revolving Credit Facility was $45.3 million, which was recorded as a long term liability on our consolidated balance sheets. The weighted average interest rate on those borrowings was 10.2% during 2016. We paid an unused line fee of 0.75% pursuant to the terms of our Revolving Credit Facility. At December 31, 2016, our Revolving Credit Facility included an additional margin on base rate loans of 7.5% and on LIBOR based loans of 8.5%.

Centre Lane Term Facility

In June 2017, we and our subsidiaries entered into a 4.5-year senior secured term loan facility with an affiliate of Centre Lane as Administrative Agent and Collateral Agent, and the other lenders from time to time party thereto (collectively, the “Lenders”). The Centre Lane Facility is governed by the terms of the Senior Secured Credit Agreement, dated June 16, 2017 (the “Closing Date”), as amended by the Centre Lane Amendment on August 17, 2017. While not a party to the Centre Lane Facility, entities associated with Wynnefield Capital, Inc., our largest equity investor, funded $6.0 million of the Centre Lane Facility. We used a portion of the proceeds under the Initial Centre Lane Facility to repay in full the outstanding balance under the Revolving Credit Facility. After payment of the Revolving Credit Facility and fees associated with both the Centre Lane Facility and the Centre Lane Amendment, net cash proceeds were $15.3 million.

The Initial Centre Lane Facility provides for an initial loan in an aggregate principal amount of up to $45.0 million, and the Centre Lane Amendment provides for a first-out loan of up to an additional aggregate principal amount of $10.0 million (the “First-Out Loan”). The Initial Centre Lane Facility has a maturity date of December 16, 2021. The First-Out Loan matures on September 30, 2018.

Borrowings under the Centre Lane Facility initially bear interest at LIBOR plus the sum of 9.0% per year, payable in cash, plus 10% payable in-kind (“PIK”) interest. Cash interest is payable monthly, and the PIK interest accrues to and increases the principal balance on a monthly basis. Starting on January 1, 2018, the PIK interest rate will increase to 15.0% per year, unless we elect to make a prepayment on the principal of $25.0 million. It is possible that our evaluation of strategic alternatives for our Mechanical Solutions segment could result in a sale of assets enabling such a prepayment.

Our obligations under the Centre Lane Facility are guaranteed by all of our wholly owned domestic subsidiaries, subject to customary exceptions. Our obligations are secured by first priority security interests on substantially all of our assets and those of our wholly owned domestic subsidiaries. This includes 100% of the voting equity interests of our domestic subsidiaries and certain specified foreign subsidiaries and 65% of the voting equity interests of other directly owned foreign subsidiaries, subject to customary exceptions.

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We may voluntarily prepay the term loans at any time or from time to time, in whole or in part, in a minimum amount of $1 million of the outstanding principal amount, plus any accrued but unpaid interest on the aggregate amount of the term loans being prepaid, plus a prepayment premium, to be calculated as follows (the “Prepayment Premium”):

 

 

 

 

 

 

 

 

 

 

Prepayment Premium as a

 

 

Percentage of Aggregate

Period

 

Outstanding Principal Prepaid

On or prior to first anniversary of Closing Date

 

 

3%

After first anniversary of Closing Date and on or prior to second anniversary of Closing Date

 

 

2%

After second anniversary of Closing Date and on or prior to third anniversary of Closing Date

 

 

1%

After third anniversary of Closing Date

 

 

0%

Subject to certain exceptions, we must prepay an aggregate principal amount equal to 100% of our Excess Cash Flow (as defined in the Centre Lane Facility), minus the sum of all voluntary prepayments, within five business days after the date that is 90 days following the end of each fiscal year. The Centre Lane Facility also requires mandatory prepayment of certain amounts in the event we or our subsidiaries receive proceeds from certain events and activities, including, among others, asset sales, casualty events, the issuance of indebtedness and equity interests not otherwise permitted under the Centre Lane Facility, and the receipt of tax refunds or extraordinary receipts in excess of $500,000, plus, in certain instances, the applicable Prepayment Premium, calculated as set forth above.

The Initial Centre Lane Facility requires payment of an annual administration fee of $25,000 and an upfront fee equal to 7% of the aggregate commitments provided under the Centre Lane Facility, which bears interest at a rate of LIBOR plus 19% annual PIK interest. The upfront fee is payable upon the earlier of maturity or the occurrence of certain events, including significant debt prepayments or asset sales that may occur prior to maturity. In addition to those fees, the Centre Lane Amendment also requires us to pay an upfront fee equal to 7% of the First-Out Loan commitments, which bears interest at the same rate as the initial upfront fee, and an exit fee equal to 7% of the aggregate outstanding principal amount of the First-Out Loan commitments, which is payable upon the maturity date of the First-Out Loan.

The Centre Lane Facility contains customary representations and warranties, as well as customary affirmative and negative covenants. The Centre Lane Facility contains covenants that may, among other things, limit the Company’s ability to incur additional debt, incur liens, make investments, declare or pay dividends, engage in mergers, acquisitions and dispositions, engage in new lines of business or certain transactions with affiliates and change accounting policies or fiscal year.

The Centre Lane Facility also requires us to regularly provide financial information to the Lenders, as well as maintain certain total leverage ratios, fixed charge coverage ratios and minimum levels of liquidity beginning September 30, 2018. Our capital expenditures are limited.

Events of default under the Centre Lane Facility include, but are not limited to, a breach of any of financial covenants or any representations or warranties, failure to timely pay any amounts due and owing, the commencement of any bankruptcy or other insolvency proceeding, judgments in excess of certain acceptable amounts, the occurrence of a change in control, certain events related to ERISA matters and impairment of security interests in collateral or invalidity of guarantees or security documents.

If an event of default occurs, the Lenders may, among other things, declare all borrowings to be immediately due and payable, together with accrued interest and fees, and exercise remedies under the collateral documents related to the Centre Lane Facility.

European Credit Facility

On June 13, 2008, Braden Europe B.V., Global Power Professional Services Netherlands B.V. and Global Power Netherlands B.V. (collectively, “Global Power Netherlands”) entered into a new EUR 14,000,000 Credit Facility (as continued, amended or supplemented from time to time, the “ABN AMRO Credit Facility”) with ABN AMRO Bank N.V. (“Original ABN AMRO”). In 2010, Original ABN AMRO transferred its claims, rights and obligations under the ABN AMRO Credit Facility to a new entity also known as ABN AMRO Bank N.V. (“New ABN AMRO”), as confirmed by the

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Amendment to Existing Credit Agreement (the “ABN AMRO Amendment”), dated July 25, 2011, between Global Power Netherlands and New ABN AMRO. The ABN AMRO Amendment incorporated the standard ABN AMRO General Credit Provisions. The ABN AMRO Credit Facility is automatically renewed each year on the same terms and conditions, so long as certain financial conditions are satisfied.

The ABN AMRO Credit Facility is a Euro-denominated facility with an overdraft facility of EUR 1,000,000 and a contingent liability facility of EUR 13,000,000. Global Power Netherlands’ interest rate was 5.95% per annum at December 31, 2015. Global Power Netherlands pays a facility fee of 0.25% per quarter. Proceeds of borrowings under the ABN AMRO Credit Facility may be used for the Borrower’s business activities. Global Power Netherlands has, by a right of pledge, given a first priority lien on substantially all of its assets as security for the ABN AMRO Credit Facility. The three entities that comprise Global Power Netherlands are jointly and severally liable under the ABN AMRO Credit Facility.

The ABN AMRO Credit Facility imposes a number of covenant requirements on Global Power Netherlands. Global Power Netherlands’ tangible net worth must at all times represent at least 35% of Global Power Netherlands’ adjusted balance sheet total. The adjusted balance sheet total is defined as total assets minus the sum of intangible assets, deferred tax assets, participating interests, receivables from shareholders and/or directors and shares held in the company, as shown in the annual accounts, as well as any off-balance sheet guarantee exposure. Global Power Netherlands may not make profit distributions without the prior written consent of New ABN AMRO or if Global Power Netherlands’ tangible net worth is less than 35% of Global Power Netherlands’ adjusted balance sheet total. Global Power Netherlands will not have a current account with its mother or sister companies. Global Power Netherlands will inform New ABN AMRO in advance of any future guarantees. Global Power Netherlands’ annual accounts shall be prepared in accordance with the International Accounting Standards Board’s standards. New ABN AMRO retains the right to revise the Credit Facility and related security package if Global Power Professional Services Netherlands B.V. and Global Power Netherlands B.V. begin to conduct business outside the Netherlands. Global Power Netherlands shall not grant any second ranking right of pledge to other parties.

As of December 31, 2016, no overdraft amounts were outstanding under this facility, and Global Power Netherlands was in compliance with all covenants under the ABN AMRO Credit Facility.

Letters of Credit and Bonds

In line with industry practice, we are often required to provide letters of credit and surety and performance bonds to customers. These letters of credit and bonds provide credit support and security for the customer if we fail to perform our obligations under the applicable contract with such customer. The interest rate on letters of credit issued under our Revolving Credit Facility letter of credit sublimit was 8.5% per annum as of December 31, 2016 and 2015. To the extent that a letter of credit had an expiry date beyond the original Revolving Credit Facility maturity date of February 21, 2017, cash collateral of an amount equal to 105% of the face amount of such letter of credit was to be provided as security for all reimbursement and other letter of credit obligations. In connection with the refinancing of our Revolving Credit Facility, we are currently unable to obtain letters of credit.

As of December 31, 2016, our outstanding standby letters of credit issued under our Revolving Credit Facility and our ABN AMRO facility were $11.8 million and $10.0 million, respectively. Currently, there are no amounts drawn upon these letters of credit. As of December 31, 2016, we provided cash collateral for $7.9 million for letters of credit with expiry dates beyond the Revolving Credit Facility’s original maturity date. In addition, as of December 31, 2016, we had outstanding surety bonds on projects of $32.7 million. As of December 31, 2015, our outstanding standby letters of credit issued under our Revolving Credit Facility and our ABN AMRO facility totaled $9.8 million and $10.8 million, respectively. Currently, there are no amounts drawn upon these letters of credit. In addition, as of December 31, 2015, we had outstanding surety bonds on projects of $23.8 million. For additional information, see “Note 11—Debt” to our consolidated financial statements.

Deferred Financing Costs

Deferred financing costs are amortized over the terms of the related debt facilities using the effective yield method. Total interest expense associated with the amortization of deferred financing costs was $0.2 million during 2016, $0.3 million during 2015 and $0.2 million during 2014. As of December 31, 2016 and December 31, 2015, we had unamortized deferred financing costs on our Revolving Credit Facility of less than $0.1 million and $0.3 million, respectively.

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Working Capital

Working capital represents total current assets less total current liabilities. At December 31, 2016, our working capital decreased $10.1 million, or 10.9%, to $82.7 million from $92.8 million at December 31, 2015. The primary driver of the decrease in working capital was the decrease in cash and cash equivalents and restricted cash.

Net Cash Flows

Our net consolidated cash flows consisted of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Cash flows provided by (used in):

 

 

 

 

 

 

 

 

 

Operating activities

 

$

(3,623)

 

$

6,781

 

$

(10,568)

Investing activities

 

 

9,509

 

 

(15,259)

 

 

(8,521)

Financing activities

 

 

(25,102)

 

 

22,982

 

 

15,266

Effect of exchange rate changes on cash

 

 

(218)

 

 

(1,181)

 

 

(1,200)

Change in cash and cash equivalents

 

$

(19,434)

 

$

13,323

 

$

(5,023)

 

Our operating, investing and financing activities and the effect of exchange rate changes on our finances are described in more detail below.

Operating Activities

For the years ended December 31, 2016, 2015 and 2014, net earnings (loss) adjusted for noncash activities was $(19.2) million, $(26.9) million and $6.8 million, respectively, and our working capital accounts provided (used) cash of $15.6 million, $33.6 million and $(17.4) million, respectively. Our operating cash outflows in 2016 and 2015 included payments for restatement-related expenses.

Investing Activities

During 2016, the sale of TOG and certain property, plant and equipment, including our sale-leasebacks, provided $18.8 million.

During 2015, we used $7.6 million to acquire certain assets of the Siemens’ eHouse manufacturing operations and $7.3 million to purchase capital assets.

During 2014, we used $8.1 million to purchase capital assets. During 2014, we also received $0.2 million from the sale of certain equipment.

Financing Activities

During 2016, cash used in financing activities was $25.1 million. Repayments on our Revolving Credit Facility accounted for $141.1 million, which was offset by borrowings of $116.4 million.

During 2015, cash provided by financing activities was $23.0 million. Borrowings on our Revolving Credit Facility accounted for $58.0 million, which was offset by repayments of $33.0 million. Additionally, we used $1.6 million of cash to pay dividends and $0.4 million to repurchase stock-based awards for the payment of employees’ statutory taxes due on stock based compensation.

During 2014, cash provided by financing activities was $15.3 million. Of this, $22.0 million came from our net borrowings on our Revolving Credit Facility, which consisted of $99.0 million in borrowings and $77.0 million in repayments during the year. Additionally, we used $6.1 million of cash to pay dividends and $0.6 million to repurchase stock based awards for payment of employees’ statutory taxes due on stock based compensation.

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Effect of Exchange Rate Changes on Cash

The effect of exchange rate changes decreased cash by $0.2 million in 2016 and $1.2 million in both 2015 and 2014. These changes are primarily driven by changes in the exchange rates of the Euro and the Peso relative to the U.S. dollar during the respective periods.

Dividends

We have not declared dividends since the first quarter of 2015 and do not anticipate declaring dividends in the near term. As of December 31, 2016, the terms of our Revolving Credit Facility restricted our ability to pay dividends, and the terms of our Centre Lane Facility currently restrict our ability to pay dividends. In addition, the timing and amounts of any dividends would be subject to determination and approval by our Board of Directors.

Liquidity Outlook

Historically, we have funded our operations through cash on hand, asset sales and draws against our Revolving Credit Facility, as necessary. In June 2017, we completed a refinancing process and entered into the Centre Lane Facility. Using the proceeds from the Centre Lane Facility, we repaid the full balance outstanding under the Revolving Credit Facility in June 2017. However, the terms of the Centre Lane Facility are less favorable to us than the terms of the Revolving Credit Facility, and, among other things, require higher interest payments and subject us to restrictive covenants that significantly limit our operating flexibility and encumber our assets.

Since May 2015, we have successfully funded our operations from working capital management, our cash on hand and asset sales. As of December 31, 2016, we had a net loss of $43.6 million and negative cash flows from operations of $3.6 million. Although we had positive working capital as of December 31, 2016, we refinanced our Revolving Credit Facility in 2017, which allowed us to classify our outstanding debt as long-term. Starting in 2015 and continuing into 2017, management, in conjunction with the Board of Directors, began developing and implementing a multi-step plan to address our severely constrained liquidity.

The plan consists of the following items:

·

Focusing on shortening the collection cycle time on our accounts receivables and lengthening the payment cycle time on our accounts payables;

·

Reducing ongoing operating expenses;

·

Assessing strategic alternatives with regard to Mechanical Solutions, including the potential complete divestiture of this segment in order to reduce debt;

·

Assessing the potential for additional asset sales to reduce our outstanding debt;

·

Repatriating cash held by our foreign subsidiaries; and

·

Seeking an asset-based lending facility that will enable us to issue letters of credit, as well as supplement our working capital needs.

We have implemented the following components of the plan:

·

We believe we have managed our accounts receivables and accounts payables to fund our operations—particularly in light of the significant additional expense load we have incurred related to the restatement of our historical financial results ($6.7 million and $14.4 million in 2016 and 2015, respectively).

·

Since 2015, we have reduced our ongoing operating expenses through facility consolidations or closures and employee reductions. For example, we consolidated our facilities at CFI and Braden Tulsa, closed our plant in Chattanooga, Tennessee and ceased manufacturing at our plant in Monterrey, Mexico.

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·

In 2017, we reduced headcount at Braden Tulsa through a series of reorganizations and restructuring of management and departments.

·

We negotiated and closed the following sales:

·

In July 2016, we sold the stock of TOG, our wholly owned subsidiary, for $6.0 million in cash, subject to customary post-closing working capital adjustments, an escrow withholding of $0.8 million and disposition expenses. The net proceeds of $4.8 million from this sale were used to reduce the outstanding balance of the Revolving Credit Facility. In addition, as a result of the sale, we no longer have liability associated with TOG’s leased property.

·

In December 2016, we completed a $14.8 million sale-leaseback transaction of our facilities in Franklin, Indiana, Auburn, Massachusetts and Houston, Texas, in which we simultaneously sold and entered into 10-year leases of the three facilities. The net proceeds of $12.2 million from this sale were used to reduce the outstanding balance of the Revolving Credit Facility. As a result of the leaseback of the facilities, we expect rental expense to increase $1.3 million per year, excluding Hetsco’s Franklin, Indiana facility, which, as discussed below, was later sold and the lease assumed by the purchaser.

·

In January 2017, we sold the stock of Hetsco for $23.2 million in cash inclusive of working capital adjustments. After transaction costs and an escrow withholding of $1.5 million, the net proceeds of $20.2 million were used to reduce the outstanding balance of the Revolving Credit Facility.

·

We repatriated $10.0 million in cash from our Netherlands subsidiary from January 1, 2017 through September 5, 2017.

·

We have negotiated and closed on a new debt facility, the Centre Lane Facility.

While the initial refinancing of the Revolving Credit Facility by entering into the Initial Centre Lane Facility extended our maturity, it did not provide sufficient funding for working capital needs. The Centre Lane Facility Amendment in August 2017 and associated First-Out Loan provided us with up to $10.0 million in additional working capital, as of September 5, 2017; however, we anticipate that our short-term liquidity position will remain constrained. The terms of the Centre Lane Facility are less favorable to us than the terms of the Revolving Credit Facility. Upon a default under the Centre Lane Facility, our senior secured lenders would have the right to accelerate the then-outstanding amounts under such facility and to exercise their rights and remedies to collect such amounts, which would include foreclosing on collateral constituting substantially all of our assets and those of our subsidiaries.

The First-Out Loan matures on September 30, 2018. In order to have sufficient cash to repay the First-Out Loan, fund our operations and continue as a going concern, we will need to be successful in completing one or more of the following initiatives:

·

Sell assets outside the normal course of business;

·

Repatriate additional cash from our foreign subsidiaries; and

·

Reduce our restricted cash by decreasing our cash collateralized outstanding letters of credit.

If we are unsuccessful in these liquidity generating initiatives by September 30, 2018, and we do not have sufficient cash resources available to repay the First-Out Loan, we could be forced to seek bankruptcy protection, attempt to renegotiate our existing credit facility or raise additional capital through new debt or equity issuances. There can be no assurance that additional capital will be available on acceptable terms and our investors could lose the full value of their investment in our common stock if bankruptcy protection is ultimately sought.

Off‑Balance Sheet Transactions

Our liquidity is currently not dependent on the use of off-balance sheet transactions, but in line with industry practice, we are often required to provide performance and surety bonds to customers and may be required to provide letters of credit. If performance assurances are extended to customers, generally our maximum potential exposure is limited in the

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contract with our customers. We frequently obtain similar performance assurances from third-party vendors and subcontractors for work performed in the ordinary course of contract execution. However, the total costs of a project could exceed our original cost estimates, and we could experience reduced gross profit or possibly a loss for a given project. In some cases, if we fail to meet certain performance standards, we may be subject to contractual liquidated damages.

As of December 31, 2016, we had a contingent liability for issued and outstanding standby letters of credit, generally issued to secure performance on customer contracts. As of December 31, 2016, our outstanding stand‑by letters of credit issued under our Revolving Credit Facility and our ABN AMRO facility were $11.8 million and $10.0 million, respectively. Currently, there are no amounts drawn upon these letters of credit. In addition, as of December 31, 2016, we had outstanding surety bonds on projects of $32.7 million. Our subsidiaries provide financial guarantees for certain contractual obligations in the ordinary course of business.

Contractual Obligations

Our cash requirements as of December 31, 2016 for contractual obligations were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Less than

 

 

 

 

 

 

 

More than

(in thousands)

 

Total

  

1 year

  

1 - 3 years

  

3 - 5 years

  

5 years

Operating lease obligations (1)

 

$

26,793

 

$

4,297

 

$

7,490

 

$

5,890

 

$

9,116

Debt obligations (2)

 

 

45,341

 

 

— 

 

 

— 

 

 

45,341

 

 

— 

Total

 

$

72,134

 

$

4,297

 

$

7,490

 

$

51,231

 

$

9,116


(1) We enter into operating leases in the normal course of business. Some lease agreements provide us with the option to renew the lease or purchase the leased property. Our future operating lease payments would change if we exercised these renewal options and if we entered into additional operating lease agreements.

(2) Debt obligations relate to amounts outstanding under our Revolving Credit Facility and exclude floating rate interest. Based on the amount of such debt at December 31, 2016, and the interest rate of 9.4% on the debt at December 31, 2016, such interest was being incurred at an annual rate of $4.3 million.

The table above omits potential payments related to:

·

Uncertain tax positions of $4.0 million as of December 31, 2016, as we cannot reasonably predict the timing of the net cash outflows associated with the settlement of these obligations; or

·

Interest which may have become due on the constantly changing outstanding balances under our Revolving Credit Facility, as we could not reasonably predict the timing of the cash outflows associated with those payments.

In June 2017, we refinanced our Revolving Credit Facility; as such, the outstanding balance of $45.3 million has been classified to long-term as of December 31, 2016.

Critical Accounting Policies and Estimates

The preparation of our consolidated financial statements and related notes requires us to make judgments, estimates and assumptions that affect the reported amounts of assets, liabilities, revenue and expenses and related disclosure of contingent assets and liabilities. We have based our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ materially from these estimates under different assumptions and conditions.

An accounting policy is considered critical if it requires an accounting estimate to be made based on assumptions about matters that are highly uncertain at the time the estimate is made, and if different estimates that reasonably could have been used, or changes in the accounting estimates that are reasonably likely to occur periodically, could materially impact the consolidated financial statements. We believe that the following critical accounting policies reflect the significant estimates and assumptions used in the preparation of our consolidated financial statements. The following descriptions of critical

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accounting policies, judgments and estimates should be read in conjunction with our consolidated financial statements included in this Form 10-K.

Revenue Recognition.  Substantially all of our Mechanical Solutions and Electrical Solutions segment revenue is derived from fixed-priced contracts. Certain of these contracts specify separate delivery dates of individual equipment units or require customer acceptance of a product. In circumstances where separate delivery dates of individual equipment units exist, we recognize revenue when the customer assumes the risk of loss and title for the equipment, which is generally the date the unit is shipped, and corresponding costs previously deferred are charged to expense. In circumstances where the contract requires customer acceptance of a product in addition to transfer of title and risk of loss to the customer, revenue is either recognized (i) upon shipment when we are able to demonstrate that the customer-specific objective criteria have been met or (ii) upon customer acceptance. Once title and risk of loss have transferred and, where applicable, customer acceptance is complete, we have no further performance obligations.

For the Mechanical Solutions segment, revenue for gas turbine auxiliary equipment contracts exceeding a value of 175,000 in local currency units from our Braden business unit is recognized under the percentage-of-completion method based on efforts expended input measures. Revenue for de minimis auxiliary equipment and part sales are recognized on the completed contract method as equipment is delivered and title is transferred.

For the Electrical Solutions segment, revenue is recognized on the completed contract method, typically when the unit is shipped, due to the lack of ability to estimate contact completion.

Within our Services segment, we enter into a variety of contract structures, including cost plus reimbursement contracts, time and material contracts and fixed-price contracts. The determination of the contract structure is based on the scope of work, complexity and project length and customer preference of contract terms. Cost-plus and time and material contracts represent the majority of the contracts in our Services segment. For these contract types, we recognize revenue when services are performed based on an agreed-upon price for the completed services or based upon the hours incurred and agreed-upon hourly rates. Some of our contracts include provisions that adjust contract revenue for safety, schedule or other performance measures. On cost reimbursable contracts, revenue is recognized as costs are incurred and includes applicable mark-up earned through the date services are provided. Revenue on fixed-price contracts is recognized under the percentage-of-completion method based on cost to cost input measures.

The percentage-of-completion method generally results in the recognition of reasonably consistent profit margins over the life of a contract because management has the ability to produce reasonably dependable estimates of contract billings and contract costs. We use the level of profit margin that is most likely to occur on a contract. If the most likely profit margin cannot be precisely determined, the lowest probable level of profit in the range of estimates is used until the results can be estimated more precisely. Our estimate of the total contract costs to be incurred at any particular time has a significant impact on the revenue recognized for the respective period. Changes in job performance, job conditions, estimated profitability, final contract settlements and resolution of claims may result in revisions to contract revenue and cost and the effects of such revisions are recognized in the period that the revisions are determined. Under percentage-of-completion accounting, management must also make key judgments in areas such as the percentage-of-completion, estimates of project revenue, costs and margin, estimates of total and remaining project hours and liquidated damages assessments. Any deviations from estimates could have a significant positive or negative impact on our results of operations.

Estimated losses on uncompleted contracts, regardless of whether we account for the contract under the completed contract or percentage-of-completion method, are recognized in the earliest open period in which they first become known.

We may incur costs subject to change orders, whether approved or unapproved by the customer, and/or claims related to certain contracts. We determine the probability that such costs will be recovered based upon evidence such as past practices with the customer, specific discussions or preliminary negotiations with the customer or verbal approvals. We treat items as a cost of contract performance in the period incurred and will recognize revenue if it is probable that the contract price will be adjusted and can be reliably estimated.

Pre-contract costs are expensed as incurred.

Long-Lived Assets.  Long-lived assets, such as property, plant and equipment, and purchased intangible assets subject to amortization are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long-lived asset be tested for possible impairment, we first compare undiscounted cash flows expected to be generated by an asset to the carrying value of the asset. If the carrying

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value of the long-lived asset is not recoverable on an undiscounted cash flow basis, impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques, including discounted cash flow models, quoted market values and third party independent appraisals, as considered necessary. We group long-lived assets by legal entity for purposes of recognition and measurement of an impairment loss, as this is the lowest level for which cash flows are independent.

Goodwill and Other Intangible Assets.  Goodwill and indefinite-lived intangible assets are not amortized to expense, but rather are annually tested for impairment as of October 1 and more frequently if circumstances warrant. Our indefinite-lived intangible assets consist of various trade names used in our businesses.

Our testing of goodwill for potential impairment involves the comparison of each reporting unit’s carrying value to its estimated fair value, which is determined using a combination of income and market approaches. For purposes of the income approach, fair value is determined based on the present value of estimated future cash flows, discounted at an appropriate risk-adjusted rate. We use our internal forecasts to estimate future cash flows and include an estimate of long-term future growth rates based on our most recent views of the long-term outlook for each reporting unit. Under the market approach, the fair value is determined by utilizing comparative market multiples in the valuation estimates. The fair value of our Braden reporting unit exceeded book value by a range of 1.7% to 59.9%, depending on the valuation approach. The fair value of our Williams reporting unit exceeded book value by 24% at December 31, 2016.

Similarly, the testing of our trade names for potential impairment involves the comparison of the carrying value for each trade name to its estimated fair value, which is determined using the relief from royalty method.

Impairment write-downs are charged to results of operations in the period in which the impairment is determined.

Income Taxes.  We account for income taxes using the asset and liability method under which deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis. We measure deferred tax assets and liabilities using enacted tax rates expected to be applied to taxable income in the years in which those differences are expected to be recovered or settled. We recognize income as a result of changes in tax rates on deferred tax assets and liabilities in the period that includes the enactment date.

Under ASC 740—Income Taxes (“ASC 740”), the FASB requires companies to assess whether valuation allowances should be established against their deferred tax assets based on the consideration of all available positive and negative evidence and utilizing a “more likely than not” standard. In making such assessments, significant weight is given to evidence that can be objectively verified. A company’s current or previous operating history is given more weight than its future outlook, although we do consider future taxable income projections, ongoing tax planning strategies and the limitation on the use of carryforward losses in determining valuation allowance needs. We establish valuation allowances for our deferred tax assets if, based on the available evidence, it is more likely than not that some portion or all of the deferred tax assets will not be realized.

During the ordinary course of business, there are many transactions and calculations for which the ultimate tax determination is uncertain. We recognize the tax benefit from uncertain tax positions only if it is more likely than not to be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position are based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. We believe that our benefits and accruals recognized are appropriate for all open audit years based on our assessment of many factors, including past experience and interpretation of tax law. This assessment relies on estimates and assumptions and may involve a series of complex judgments about future events. To the extent that the final tax outcome of these matters is determined to be different than the amounts recorded, those differences will impact income tax expense in the period in which the determination is made.

Warranty Costs.  We estimate warranty costs based on past warranty claims, specific identification method, sales history and applicable contract terms. Our warranty terms vary by contract but generally extend for no more than four years after delivery or completion of services. We manage our exposure to warranty claims by having our field service and quality assurance personnel regularly monitor projects and maintain ongoing and regular communications with our customers.

Insurance.  We self-insure a portion of our risk for health benefits and workers’ compensation up to certain policy limits. We maintain insurance coverage for other business risks, including general liability insurance. We retain exposure to potential losses based on deductibles, coverage limits and self-insured retentions. We charged $8.8 million, $8.6 million and

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$10.0 million as an expense during the years ended December 31, 2016, 2015 and 2014, respectively, for health benefits, general liability and workers’ compensation claims incurred and related insurance premiums for excess claim coverage for continuing operations. Our reserves as of December 31, 2016 and 2015 consisted of estimated amounts unpaid for reported and unreported claims incurred. Our accrual for all self-insured risk retention as of December 31, 2016 and 2015 was $0.9 million and $0.6 million, respectively. We have provided $2.6 million in letters of credit for each of the years ended December 31, 2016 and 2015, respectively, as security for possible workers’ compensation claims .

Recently Issued Accounting Pronouncements

In May 2017, the FASB issued ASU 2017-09, “Scope of Modification Accounting.” This ASU is intended to clarify when an entity is required to apply modification accounting when there have been changes to the terms or conditions of a share-based payment award. ASU 2017-09 is effective for annual and interim periods beginning after December 15, 2017 and should be applied prospectively to an award modified on or after the adoption date. We do not expect the adoption of ASU 2017-09 to have a material impact on our financial position, results of operations or cash flows. 

In January 2017, the FASB issued ASU 2017-04, “Simplifying the Test for Goodwill Impairment.” ASU 2017-04 removes the second step of the goodwill impairment test, which requires a hypothetical purchase price allocation. A goodwill impairment will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill. ASU 2017-04 is effective for interim and annual reporting periods beginning after December 15, 2019 and will be applied prospectively. We do not expect the adoption of ASU 2017-04 to have a material impact on our financial position, results of operations or cash flows.

In January 2017, the FASB issued ASU 2017-01, “Clarifying the Definition of a Business,” which changes the definition of a business to assist entities with evaluating when a set of transferred assets and activities is a business. ASU 2017-01 requires an entity to evaluate if substantially all of the fair value of the gross assets acquired (or disposed of) is concentrated in a single identifiable asset or a group of similar identifiable assets; if so, the set of transferred assets and activities is not a business. ASU 2017-01 is effective for interim and annual reporting periods beginning after December 15, 2017 and should be applied on a prospective basis. We do not expect the adoption of ASU 2017-01 to have a material impact on our financial position, results of operations or cash flows.

In November 2016, the FASB issued ASU 2016-18, “Restricted Cash (a consensus of the FASB Emerging Issues Task Force).” ASU 2016-18 requires an entity to include in its cash and cash-equivalent balances in the statement of cash flows those amounts that are deemed to be restricted cash and restricted cash equivalents. ASU 2016-18 is effective for interim and annual reporting periods beginning after December 15, 2017. We do not expect the adoption of ASU 2016-18 to have a material impact on our financial position, results of operations or cash flows.

In October 2016, the FASB issued ASU 2016-16, “Intra-Entity Transfers of Assets Other than Inventory.” ASU 2016-16 requires an entity to recognize the income tax consequences of an intra-entity transfer of an asset, other than inventory, when the transfer occurs. ASU 2016-16 is effective for interim and annual reporting periods beginning after December 15, 2017 and should be applied on a modified retrospective basis. We do not expect the adoption of ASU 2016-16 to have a material impact on our financial position or results of operations. We are currently evaluating the impact the adoption will have on our statement of cash flows.

In August 2016, the FASB issued ASU 2016-15, “Classification of Certain Cash Receipts and Cash Payments.” ASU 2016-15 amends the guidance in ASC 230, which often requires judgment to determine the appropriate classification of cash flows as operating, investing or financing activities, and has resulted in diversity in practice in how certain cash receipts and cash payments are classified. ASU 2016-15 is effective for interim and annual reporting periods beginning after December 15, 2017 and should be applied on a retrospective basis. We do not expect the adoption of ASU 2016-15 to have a material impact on our cash flows.

In March 2016, the FASB issued ASU 2016-09, “Improvements to Employee Share-Based Payment Accounting.” This ASU is intended to simplify various aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. ASU 2016-09 is effective for annual and interim periods beginning after December 15, 2016 and early adoption is permitted. If early adopted, an entity must adopt all of the amendments during the same period. We are currently evaluating the potential impact of the adoption of ASU 2016-09 on our financial position, results of operations and cash flows.

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In February 2016, the FASB issued ASU 2016-02, “Leases.” The main difference between the current requirement under GAAP and ASU 2016-02 is the recognition of lease assets and lease liabilities by lessees for those leases classified as operating leases. ASU 2016-02 requires that a lessee recognize in the statement of financial position a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. For income statement purposes, the FASB retained a dual model, requiring leases to be classified as either operating or finance. Operating leases will result in straight-line expense (similar to current operating leases), while finance leases will result in a front-loaded expense pattern (similar to current capital leases). Classification will be based on criteria that are largely similar to those applied in current lease accounting. ASU 2016-02 is effective for annual and interim periods beginning after December 15, 2018, and early adoption is permitted. ASU 2016-02 must be adopted using a modified retrospective transition and provides for certain practical expedients. We are currently assessing the potential impact of the adoption of ASU 2016-02 on our financial position, results of operations and cash flows.

In July 2015, the FASB issued ASU 2015-11, “Simplifying the Measurement of Inventory.” The new guidance requires an entity to measure inventory, other than that measured using last-in- first out or the retail inventory method, at the lower of cost or net realizable value, which is defined as the estimated selling price in the ordinary course of business, less reasonably predictable costs of completion, disposal and transportation. ASU 2015-11 is effective beginning with the Company’s fiscal year 2017 and should be applied prospectively, with earlier application permitted. We have no plans for early adoption. We do not expect the adoption of ASU 2015-11 to have a material impact on our financial position, results of operations or cash flows.

In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers,” which provides new guidance for revenue recognized from contracts with customers, and will replace the existing revenue recognition guidance. ASU 2014-09 requires that revenue is recognized at an amount the company is entitled to upon transferring control of goods or services to customers, as opposed to when risks and rewards transfer to a customer. In July 2015, the FASB issued ASU 2015-14, “Revenue from Contracts with Customers (Topic 606): Deferral of the Effective Date,” which deferred the effective date of ASU 2014-09 by one year, making it effective for the interim reporting periods within the annual reporting period beginning after December 15, 2017, or January 1, 2018. This standard may be applied retrospectively to all prior periods presented, or retrospectively with a cumulative adjustment to retained earnings in the year of adoption. We currently anticipate adopting the standard using the modified retrospective method. We have begun initial discussions on significant differences and scoping; however, we have not determined the impact the adoption will have on our consolidated financial statements and related disclosures.

The FASB has issued several additional ASUs to provide implementation guidance on ASU 2014-09, including ASU 2016-08, “Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net)” issued in March 2016 and ASU 2016-10, “Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing,” issued in April 2016. We will consider this guidance in evaluating the impact of ASU 2014-09.

 

Item 7A.  Quantitative and Qualitative Disclosures About Market Risk.

We may be exposed to market risk through changes in interest rates and foreign currency exchange fluctuations. We have established policies to monitor and control these market risks.

Foreign Exchange Rate Risk.  We have foreign currency risks related to our revenue and operating expenses denominated in currencies other than the U.S. Dollar, particularly the Euro, Mexican Peso and Chinese Yuan. We do not believe movements in the foreign currencies in which we transact will significantly affect future net earnings. We may seek to minimize the impact of certain foreign currency fluctuations by hedging certain balance sheet exposures with foreign currency forward contracts. Any gain or loss from settling these contracts would be offset by the loss or gain derived from the underlying balance sheet exposures. Additionally, by policy, we do not enter into any hedging contracts for trading or speculative purposes.

Interest Rate Risk.  Our primary market risk exposure is volatility of interest rates, primarily in the U.S. As of December 31, 2016, we were subject to interest rate changes on our LIBOR-based variable interest rate under our Revolving Credit Facility. The Centre Lane Facility also subjects us to LIBOR-based interest, leading to interest rate changes. As of December 31, 2016, we had $45.3 million outstanding on our Revolving Credit Facility. During 2016, we borrowed $116.4 million and repaid $141.1 million on our Revolving Credit Facility.

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Interest Rate Sensitivity.  Based on the absence of any term loan borrowings as of December 31, 2016, a 50 basis point fluctuation in short term interest rates would have a $0.2 million impact on our expected pre-tax income on an annual basis.

 

Item 8.  Financial Statements and Supplementary Dat a.

The financial statements and other information required by this Item are contained in the consolidated financial statements and related notes thereto contained elsewhere in this report.

Item 9.  Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.

 

On December 16, 2015, we disclosed in a Current Report on Form 8-K (as amended on December 21, 2016), that BDO USA, LLP (“BDO”) would serve as our independent registered public accounting firm with respect to the audit of the financial statements for our 2012 through 2014 fiscal years, but that BDO resigned as our auditor for our 2015 fiscal year. We promptly engaged in a process to select an independent registered public accounting firm for our 2015 fiscal year. As a result of that process, our management concluded that, among other considerations, appointing a single accounting firm to audit all outstanding fiscal years would be more efficient than using two firms and would present a greater likelihood of completing the restatement and bringing us current in our SEC reporting obligations more promptly.

Based on the foregoing, our management recommended to the Board and the Audit Committee that, effective March 24, 2016, we dismiss BDO as our independent registered public accounting firm with respect to the audit and review of our financial statements for our 2012 through 2014 fiscal years, and appoint Hein & Associates LLP (“Hein”) as our new independent registered public accounting firm for the periods covered by this Form 10-K. The Board and the Audit Committee each approved that change unanimously. Effective March 24, 2016, we retained Hein as our independent registered public accounting firm for all periods covered by this Form 10-K.

During our two most recent fiscal years ended December 31, 2015, and the subsequent interim period through the date of BDO’s dismissal, there were no disagreements between us and BDO on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures, which disagreements, if not resolved to BDO’s satisfaction, would have caused BDO to make reference to the subject matter of the disagreement in their reports on our consolidated financial statements. BDO’s audit reports on our consolidated financial statements for the years ended December 31, 2013 and 2014, when previously filed, did not contain any adverse opinion or disclaimer of opinion, nor was either report qualified or modified as to uncertainty, audit scope, or accounting principles. However, as stated in our Current Reports on Form 8-K, filed on May 6, 2015, October 26, 2015 and January 26, 2016 (the “Prior 8-Ks”), our previously filed 2012, 2013 and 2014 financial statements, including the previously filed auditor’s reports on our 2012, 2013 and 2014 financial statements, and the auditor’s reports on the effectiveness of our internal control over financial reporting as of December 31, 2012, 2013 and 2014, should no longer be relied upon in light of the subsequent restatement.

As discussed in our Current Report on Form 8-K (as amended), filed on December 16, 2015 (together with the Prior 8-Ks, the “Original Reports”), prior to our dismissal of BDO, we discussed with BDO certain material weaknesses in our internal control over financial reporting relating to revenue recognition, inventory costing and warranty reserves. We have taken, and continue to take, meaningful steps to enhance our internal controls over financial reporting in connection with these material weaknesses and to strengthen our financial reporting and accounting functions. We believe the remediation measures that we are undertaking have improved and will continue to improve the effectiveness of our internal control over financial reporting. However, we have not completed all of the corrective processes and procedures as described in more detail below under the caption “Part II—Item 9A. Controls and Procedures.”

Other issues that we discussed with BDO included those relating to the supporting documentation for manual journal entries (including potential internal control implications), a proposed change in accounting methodology for certain construction contracts from the “completed contract” method to the “percentage-of-completion” method, the recognition of revenue on projects that were completed at or after related warranty matters were identified, amounts of warranty accruals and the potential accounting impact of warranties that meet the definition of “extended warranties,” recording of expected losses on ongoing construction contracts, and the timing of accrued severance benefits to certain employees. In addition, BDO and we concluded a need existed to perform a goodwill impairment review as a result of the anticipated restatement adjustments to the financial statements and a need to strengthen our internal audit function. With respect to the internal audit function, we and BDO discussed evaluating the competency and objectivity of the internal audit function and its ability to effectively perform its duties (such examination of the internal audit function, collectively with the matters described in the prior paragraph, and the first and second sentences of this paragraph, are referred to herein as the “Matters”). Members of our

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management and the Audit Committee discussed the Matters with BDO. However, at the time of BDO’s dismissal, BDO had not completed its evaluation of the Matters, including the magnitude of any internal control deficiencies associated with manual journal entries or the internal audit function. Except for the Matters, there were no “reportable events,” as defined in Item 304(a)(1)(v) of Regulation S-K of the rules and regulations of the SEC, during our years ended December 31, 2013 or 2014 or in any subsequent interim period. We have authorized BDO to respond fully to the inquiries of the successor accounting firm concerning the subject matter of the reportable event stated above.

The Company provided BDO with a copy of the information required by Item 304(a) of Regulation S-K, which was also filed with the SEC in Current Reports on Form 8-K, filed on December 16, 2015 (as amended on December 21, 2015) and March 30, 2016 (as amended on April 4, 2016), respectively. The Company requested that BDO review such disclosures and provide a letter addressed to the SEC. Each such report was subsequently amended to attach as an exhibit the letter from BDO to the SEC.

Pursuant to conversations with BDO, prior to their dismissal, and Hein, the Company is not aware of any financial interest, direct or indirect, held, in any capacity, by BDO, prior to its dismissal, or Hein in the Company or its subsidiaries.

Item 9A.  Controls and Procedures.

Evaluation of Disclosure Controls and Procedures

Disclosure controls and procedures are designed to ensure that information, required to be disclosed in our reports under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our Principal Executive Officer and Principal Financial Officer, as appropriate, to allow timely decisions regarding required disclosure based on the definition of “disclosure controls and procedures” in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. In designing and evaluating disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives.

Under the supervision and with the participation of our management, including our current Co-CEOs and our Chief Financial Officer, we evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2016.

Based on this evaluation, our Co-CEOs and our Chief Financial Officer concluded that our disclosure controls and procedures were not effective as of December 31, 2016, due to material weaknesses in our internal control over financial reporting. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.

Notwithstanding the ineffective disclosure controls and procedures, the material weaknesses in our internal control over financial reporting described below, and our failure to timely file this Form 10-K and certain subsequent reports, our management concluded that the consolidated financial statements included in this report fairly present, in all material respects, our financial position, results of operations and cash flows for the periods presented in accordance with U.S. GAAP. 

Management’s Report on Internal Control over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues within a company are detected. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Under the supervision and with the participation of our management, including our Co-CEOs and our Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of

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December 31, 2016, utilizing the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in the Internal Control–Integrated Framework (2013). The COSO framework summarizes each of the components of a company’s internal control system, including (i) the control environment, (ii) risk assessment, (iii) control activities, (iv) information and communication and (v) monitoring. Based on this evaluation, our management concluded that we did not maintain effective internal control over financial reporting as of December 31, 2016, because material weaknesses reported in Item 9A of our 2015 Form 10-K continued to exist at December 31, 2016, as described below.

Note: The bullet points under each material weakness, when aggregated, resulted in the identified material weakness; however, each individually would also have been sufficient to result in a material weakness.

We had material weaknesses in our control environment and monitoring:

·

We did not implement effective oversight of our finance and accounting processes (including organizational structure and reporting hierarchy), which impacted our ability to make appropriate accounting determinations.

·

We did not effectively design and implement appropriate oversight controls over our period-end financial closing and reporting processes, and our review controls were not sufficient to ensure that errors would be detected in both routine and non-routine financial information.

·

We did not maintain a sufficient complement of qualified personnel with the requisite level of technical expertise to effectively analyze, review and conclude upon technical accounting matters, and thus, we were unable to successfully navigate such accounting matters and accurately report them in a timely manner.

We had material weaknesses related to internal control monitoring and activities to support the financial reporting process:

·

We did not maintain effective controls over journal entries to ensure that journal entries were properly prepared with sufficient supporting documentation or were reviewed and approved in a manner that provided reasonable assurance over the accuracy and completeness of the journal entries.

·

We did not maintain effective controls over the monitoring and review of general ledger accounts, and as a result, account reconciliations and analysis were not performed at an appropriate level of detail and reconciling items were not resolved and adjusted on a timely basis.

·

We did not design and maintain effective controls to provide reasonable assurance over the accuracy and completeness relating to:

o

Recognizing revenue in accordance with the proper method, including percentage of completion and completed contract;  

o

Tracking and completeness of work-in-process;

o

Matching cost of goods sold with related revenue;

o

Reviewing contract performance to estimate expected contract losses in a timely manner;

o

Properly reviewing, recognizing and recording the full scope of contracts and contract modifications with our customers;

o

Calculating and estimating warranty expense and warranty liabilities;

o

Estimating accrued liabilities;

o

Properly reviewing valuation models supporting the goodwill impairment;

o

Identification and proper elimination of intercompany transactions;

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o

Determination and recording of foreign currency translation adjustments; and

o

Safeguarding of physical assets.

We had material weaknesses related to information technology general controls:

·

We did not maintain effective controls over user access to key spreadsheets to prevent unauthorized modifications to formulas within key spreadsheet applications and to detect unauthorized changes or errors in key spreadsheet applications.

·

We did not maintain effective controls over user roles within accounting systems to allow for proper segregation of duties.

·

We did not maintain effective controls over system generated entries associated with foreign currency translation adjustments.

·

We determined that review processes and activities that relied on electronic data generated from our systems were ineffectively designed and incorrectly operating because of material weakness in information technology general controls.

We did not effectively monitor (review, evaluate and assess) the risks associated with key internal control activities that provide the accounting information contained in our financial statements.

These material weaknesses impacted our accounting for revenue recognition, work-in-process costing, cost of goods sold recognition and accrued liabilities. If not remediated, the internal control deficiencies described above could result in errors in our financial statements.

Changes in Internal Control over Financial Reporting

We designed a remediation plan to strengthen our financial reporting and accounting functions and have taken, and will continue to take, remediation steps to address these material weaknesses. We also continue to take meaningful steps to enhance our disclosure controls and procedures and our internal controls over financial reporting by strengthening our financial reporting and accounting functions.

In order to remediate the material weaknesses in our control environment, we have enhanced our reporting structure to more clearly define roles, responsibilities, reporting obligations and decisional authority and to centralize certain functions to ensure knowledgeable and experienced staffing within our accounting and financial reporting departments. As we continue to enhance our staffing, we continue to design training programs for accounting and operations personnel to ensure that our staff has the appropriate knowledge and expertise necessary to perform their assigned duties. In connection with the remediation of the material weaknesses in our control activities we have enhanced our policies relating to the documentation review and approval of journal entries and account reconciliations. To enhance our information technology controls, we are implementing systems and processes in order to create an effective segregation of duties, restrict user access to spreadsheets and applications and improve output controls over system generated entries. Finally, we are implementing procedures to enhance the level of communication and the understanding of our accounting and internal control policies and procedures in an effort to remediate the material weakness in our monitoring efforts. These actions are subject to ongoing senior management review and Audit Committee oversight.

While we continue to take steps to remediate our material weaknesses, we cannot currently represent that significant changes to our internal control over financial reporting have been fully implemented. Since filing our 2015 Report on March 15, 2017, the control enhancements that we have introduced have not been fully implemented or have not been placed in service for a sufficient period of time to conclude on their effectiveness as of December 31, 2016. Because of this, management has concluded that none of our material weaknesses have been remediated.

We believe the remediation measures that we have taken, and continue to take, will improve the effectiveness of our internal control over financial reporting. Other than the continued implementation of these remediation efforts, there were no other changes in our internal control over financial reporting for the year ended December 31, 2016, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

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This Form 10-K does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our independent registered public accounting firm pursuant to rules of the SEC that permit us to provide only management’s report in this annual report.

 

Item 9B.  Other Informatio n.

 

None.

 

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Part II I

 

Item 10.  Directors, Executive Officers and Corporate Governance. 

 

Our Board of Directors

 

Each of the following individuals was a member of the Board as of December 31, 2016: 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

  

Age

  

Position(s) and Office(s) Held with the Company

Terence J. Cryan

 

55

 

President, CEO and Director(1)

Charles Macaluso

 

73

 

Chairman of the Board and Director

Carl Bartoli

 

78

 

Director

David A.B. Brown

 

73

 

Director

Linda Goodspeed

 

55

 

Director

David Keller

 

63

 

Director

Robert B. Mills

 

67

 

Director

Nelson Obus

 

70

 

Director

Michael E. Rescoe

 

64

 

Director

Michael E. Salvati

 

65

 

Director

Gary J. Taylor

 

64

 

Director

 

(1) Mr. Cryan resigned as President and CEO and as a director on July 26, 2017. Upon his resignation, Mr. Holmes and Mr. Pagliara were appointed Co-Presidents, Co-CEOs and directors, and Mr. Wheelock was appointed Vice President, Administration, General Counsel and Secretary.

In addition, each of the following individuals, who joined the Board subsequent to December 31, 2016, is a member of the Board as of the date of this Form 10-K:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name

  

Age

  

Position(s) and Office(s) Held with the Company

Craig E. Holmes

 

60

 

Co-President, Co-CEO and Director

Tracy D. Pagliara

 

54

 

Co-President, Co-CEO and Director

 

The term for each of our directors expires at our next annual meeting of stockholders. Mr. Macaluso, Mr. Mills, Mr. Taylor, Mr. Brown, Ms. Goodspeed and Mr. Obus will be nominated for re‑election at our next annual meeting of stockholders. Directors that are re‑elected at our next annual meeting of stockholders will be elected to serve until the next annual meeting or until their successors have been duly elected and qualified. There are no family relationships among any of the directors listed above or our executive officers.

Set forth below is the specific experience, qualifications and background of each of the individuals listed above.

Terence J. Cryan served as a member of the Board of Directors from January 2008 to July 2017 and as our President and CEO from March 20, 2015 until July 26, 2017. Mr. Cryan has over 30 years of international business experience based in both the United States and Europe. Until March 2015, he served as Managing Director of Concert Energy Partners, a New York City‑based investment and private equity firm focused on the energy industry that he co‑founded in 2001. From September 2011 through April 2012, he served as interim President and Chief Executive Officer of Uranium Resources Inc. He also served as President and Chief Executive Officer of Medical Acoustics LLC from 2007 through 2010. Prior to 2001, Mr. Cryan was a Senior Managing Director in the Investment Banking Division at Bear Stearns.

Earlier in his career, Mr. Cryan served as a Managing Director, head of the Energy & Natural Resources Industry Group and member of the Investment Banking Operating Committee at Paine Webber. Mr. Cryan joined Paine Webber following its acquisition of Kidder, Peabody in 1994.

Since 2012, Mr. Cryan has served as a director of Ocean Power Technologies Corporation. During the past five years, Mr. Cryan served as a director of Superior Drilling Products Incorporated (June 2014 to December 2016), Uranium

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Resources, Inc. (October 2006 to March 2016), The Providence Service Corporation (May 2009 to May 2011) and Gryphon Gold Corporation (August 2009 to December 2012). In January 2015, Mr. Cryan became a National Association of Corporate Directors Board Leadership Fellow, one of the highest levels of credentialing for corporate directors and corporate governance professionals.

Director Qualifications.  Mr. Cryan possesses extensive expertise in financings, mergers and acquisitions. He also has a broad energy industry background and executive‑level experience. Mr. Cryan has over 20 years of experience in international business as an investment banker in the United States and Europe. As a co‑founder of Concert Energy Partners and as former Managing Director, Energy & Natural Resources Industry Group at Paine Webber, Mr. Cryan has in‑depth knowledge of the energy industry. In addition, Mr. Cryan brought board‑level leadership experience, having served on the boards of a number of international companies.

Charles Macaluso has served as Chairman of our Board of Directors since January 2008. Since 1998, Mr. Macaluso has been a principal of Dorchester Capital Advisors, LLC (“Dorchester Capital”), a management consulting and corporate advisory service firm focusing on operational assessment, strategic planning and workouts. Mr. Macaluso currently serves as a director of Darling Ingredients Inc., where he serves as lead director and chairman of its nominating and corporate governance committee, and Pilgrim’s Pride Corporation, where he serves on the audit committee. Previously, Mr. Macaluso also served as a director of The Elder‑Beerman Stores Corp. and Global Crossing Limited. Mr. Macaluso is also a member of the National Association of Corporate Directors.

Director Qualifications.  Mr. Macaluso has had a career focused on operational assessment, strategic planning, crisis management and turnaround advisory services, most recently with Dorchester Capital. Dorchester Capital also has a significant commitment to representing the interests of investor groups as a member of the boards of directors at a diverse array of companies, and Mr. Macaluso brings with him a strong commitment to stockholders’ interests. He also has extensive executive and financial expertise. In addition, Mr. Macaluso brings significant board expertise, including service as chairman on a number of public and private company boards and committees.

Carl Bartoli has served as our Director since January 2008. Mr. Bartoli previously served as President and Chief Executive Officer of Foster Wheeler USA Corporation, an engineering, procurement, and construction services company, and Executive Vice President of Foster Wheeler International Corporation, a construction and engineering services company, for 13 years. As President and Chief Executive Officer of Foster Wheeler USA Corporation, he was responsible for the Process Plant Division, the Fire Heater Division, Foster Wheeler Constructors Corporation and Foster Wheeler Environmental Corporation. This followed a career in project and construction management at ABB Lummus Global (now CB&I/Lummus) and M.W. Kellogg Company (now KBR, Inc.) covering virtually all facets of the engineering, procurement, and construction of power generation, process, pharmaceutical and infrastructure facilities.

Since his retirement from Foster Wheeler, Mr. Bartoli has established and serves as President of C. Bartoli Consultants, LLC serving the utility and process industry in the development and execution of capital projects. He has also participated in the preparation of strategic plans, organizational restructuring and acquisition due diligence of engineering and construction firms. Mr. Bartoli has been affiliated with the Construction Industry Institute, a research organization serving the engineering and construction industry, as a member of the board of advisors and executive committee. Mr. Bartoli is also a member of the National Association of Corporate Directors.

Director Qualifications.  Mr. Bartoli is an engineering and construction business executive with over 40 years of domestic and international experience in the process and utility industry. His experience covers all facets of the engineering and construction industry, including project management, project development, senior line management and executive profit and loss management positions. Mr. Bartoli has also served on the boards of directors of a number of Foster Wheeler Corporation affiliated companies. Since his retirement from Foster Wheeler (now AMEC‑Foster Wheeler) and the establishment of C. Bartoli Consultants, LLC, he has participated in many consulting assignments for the power generation, process and energy industries. He is also a consultant leader with the Gerson Lehrman Group in the energy and industrials sector and is an advisor to Anellotech, Inc., a company developing a cellulosic biomass conversion technology for the production of petrochemicals, and Sundrop Fuels, Inc., a gasification‑based advanced biofuels company.

David A.B. Brown has served as a member of the Board of Directors since May 2016. Mr. Brown currently serves as chairman of the board of directors of Layne Christensen Company and as a member of the board of directors of EMCOR Group, Inc. From June 25, 2014 to January 1, 2015, Mr. Brown also served as President and Chief Executive Officer of Layne Christensen Company, a global water management, construction, and drilling company. Mr. Brown has served as the non-executive chairman of the board of directors of Industrea Acquisition Corp. since July 2017. He served as a member of

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the board of directors of Hercules Offshore, Inc. from November 2015 to December 2016. Mr. Brown was the chairman of the board of directors of Pride International, Inc., a leading provider of offshore contract drilling and related services to oil and natural gas companies worldwide, from May 2005 to May 2011. Mr. Brown served as a director of Ensco plc from May 2011 to May 2014. For more than five years prior to May 2005, Mr. Brown was president of The Windsor Group, a management consulting firm of which he was a co-founder. From 2001 to 2006, Mr. Brown was a member of the board of directors of Mission Resources, Inc.; from 2001 to 2007, a director of NS Group, Inc.; and from 2006 to 2007, a director of Petrohawk Energy Corp. Mr. Brown is a member of the National Association of Corporate Directors.

Director Qualifications .  Mr. Brown has extensive financial and management experience. He is a Chartered Public Accountant and a Chartered Accountant and has served in multiple roles for public companies. Mr. Brown has financial expertise, a thorough understanding of financial statements, corporate finance and accounting and extensive experience with public companies, all of which makes him a valued member of the Board of Directors.

Linda Goodspeed has served as a member of the Board of Directors since May 2016. She is the retired Chief Operating Officer and Managing Partner at WealthStrategies Financial Advisors (a registered investment advisory firm), positions she has held since 2007, and currently serves as a member of the board of directors of each of American Electric Power Co., Inc., AutoZone, Inc. and Darling Ingredients, Inc. She had served as Senior Vice President and Chief Information Officer of The ServiceMaster Company, a provider of home services, from 2011 to 2014. From 2008 to September 2011, Ms. Goodspeed served as Vice President, Information Systems and Chief Information Officer for Nissan North America, Inc., a subsidiary of Nissan Motor Company, a global manufacturer of vehicles. From 2001 to 2008, Ms. Goodspeed served as Executive Vice President at Lennox International, Inc., a global manufacturer of air conditioning, heating and commercial refrigeration equipment. Ms. Goodspeed is a registered investment advisor.

Director Qualifications .  Ms. Goodspeed’s extensive experience in management roles and as a member of the board of director of public companies makes her well qualified to serve as a director of the Company. She has held multiple key strategic and operational roles with several large global companies and in information technology and currently serves on three other boards of public companies. Ms. Goodspeed is also a registered investment advisor.

David Keller  has served as a member of the Board of Directors since May 2015. From June 2014 to January 2015, Mr. Keller served as the Interim Chief Executive Officer of Ocean Power Technologies, Inc., a wave energy technology company. From September 2009 until his retirement in June 2012, he served as our President, CEO and director. Mr. Keller previously served as the President and Chief Operating Officer of The Babcock & Wilcox Company (“B&W”), a wholly owned subsidiary of McDermott International, Inc. and provider of energy and environmental technologies and services for power and industrial markets, from March 2001 until his retirement in June 2007. During his tenure with B&W, Mr. Keller served as a Board Chairman or Director of subsidiaries and joint ventures in the People’s Republic of China, Denmark, the United Kingdom, Australia and South Africa.

During the past five years, Mr. Keller served as director of ThermoEnergy Corporation (April 2013 to May 2014) and Ocean Power Technologies Corporation (October 2013 to October 2015).

Director Qualifications.  Mr. Keller possesses a comprehensive knowledge of the power generation industry. In addition to his experience and understanding in the industry, Mr. Keller also has significant executive management experience, having directly overseen sales, manufacturing, accounting, legal, supply chain and personnel functions of a business whose revenue reached approximately $2 billion under his management.

Robert B. Mills has served as a member of the Board of Directors since October 2015. Since 2016, he has served as a member of the board of directors of Syncora Holdings Ltd., a publicly traded financial guarantee insurance company, and as a member of Syncora’s audit committee since 2017. From 2010 to April 2015, Mr. Mills served as the Chief Operating Officer of Assured Guaranty, Ltd., another publicly traded financial guaranty insurance company. Prior to his role as Chief Operating Officer, Mr. Mills served as Chief Financial Officer of Assured Guaranty, Ltd. from 2004 to 2010. In connection with his role as Chief Operating Officer of Assured Guaranty, Ltd., Mr. Mills chaired the Management Committee, which established corporate policy and the strategic and tactical direction for the business, and served as a member of the board of directors of each of Assured Guaranty, Ltd.’s five separately regulated insurance companies. Prior to his time at Assured Guaranty, Mr. Mills served as Chief Operating Officer and Chief Financial Officer of the Americas Region of UBS AG from 1994 to 2004. From 1971 to 1994, Mr. Mills worked for KPMG and was elected to the partnership in 1981. He is a Certified Public Accountant and a Certified Global Management Accountant.

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Director Qualifications.  Mr. Mills is a Certified Public Accountant and has served as Chief Financial Officer and Chief Operating Officer, most recently for Assured Guaranty, Ltd., a public company. Mr. Mills has extensive financial expertise and a thorough understanding of financial statements, corporate finance and accounting and will be able to provide financial and accounting expertise to the Board of Directors.

Nelson Obus has served as a member of the Board of Directors since June 2016. Mr. Obus has served as president of Wynnefield Capital, Inc. since November 1992 and as the managing member of Wynnefield Capital Management, LLC since January 1997. Wynnefield Capital Management manages two partnerships and Wynnefield Capital, Inc. manages one partnership, all three of which invest in small‑cap value U.S. public equities. Mr. Obus has served on the board of Layne Christensen Company since 2004. From 2001 to 2006, Mr. Obus served as a member of the board of directors of Sylvan Inc., a NASDAQ‑listed company specializing in producing and distributing mushroom spawn. Mr. Obus served as a member of the board of directors of Gilman Ciocia, Inc., a company that provides income tax preparation, accounting and financial planning services from September 2007 to January 2012. From January 2012 to December 31, 2015, Mr. Obus also served as a member of the board of directors of Breeze‑Eastern Corporation, a company that designs, develops, manufactures, sells and services sophisticated mission equipment for helicopters.

Director Qualifications.  Mr. Obus’ pertinent experience, qualifications, attributes and skills include: financial literacy and expertise, capital markets expertise and managerial experience gained through his leadership roles and ownership interest in related investment management companies, Wynnefield Capital Management, LLC and Wynnefield Capital, Inc., and the knowledge and experience he has from attained from service on other public company boards.

Michael E. Rescoe has served as our Director since July 2014. Mr. Rescoe served as executive vice‑president and chief financial officer of Travelport Ltd., a privately held travel services company, from November 2006 until October 2009. He served as executive vice president and chief financial officer of the Tennessee Valley Authority, a federal corporation that is the nation’s largest public power provider, from July 2003 until November 2006. Mr. Rescoe was a senior officer and the chief financial officer of 3Com Corporation, a global technology manufacturing company specializing in Internet connection technology for both voice and data applications, from April 2000 until November 2002. Prior thereto, Mr. Rescoe was associated with Forstman Little, a leveraged buyout firm and prior to that, Mr. Rescoe was chief financial officer of PG&E Corporation, a power and natural gas energy holding company. Mr. Rescoe has also served as a senior investment banker with Kidder, Peabody and a senior managing director of Bear Stearns specializing in the energy and utility section offering strategy and capital markets expertise. Since May 2017, Mr. Rescoe has served as a member of the board of directors and audit committee of Darling Ingredients, Inc., where he previously served as a director, audit committee chair and compensation committee member from May 2011 until February 2014. From December 2003 until October 2011, Mr. Rescoe served as a director of Global Crossing Ltd., where he served as chairman of the audit committee.

Director Qualifications.  Mr. Rescoe has extensive experience in the energy industry and so has a strong understanding of the business in which we engage. In addition to his industry experience, Mr. Rescoe has a strong financial background, including a deep understanding of financial statements, corporate finance, accounting and capital markets, and so is able to provide financial expertise to the Board of Directors.

Michael E. Salvati has served as our Director since August 2011. Since December 2000, Mr. Salvati has been President at Oakridge Consulting, Inc., which provides interim management, management consulting and corporate advisory services to companies ranging in size from start‑ups to multinational corporations. From February 2004 to May 2004, Mr. Salvati served as Chief Financial Officer of AMI Semiconductor, Inc. From September 1998 to February 2000, Mr. Salvati was Executive Vice President and Chief Operating Officer of National Financial Partners, Corp. From June 1996 to June 1998, Mr. Salvati was Chief Financial Officer of Culligan Water Technologies, Inc., where he oversaw the completion of nearly 50 acquisitions over a period of 18 months. Mr. Salvati was a partner at KPMG Peat Marwick LLP from 1990 to 1996.

Mr. Salvati is a Certified Public Accountant and member of the American Institute of Certified Public Accountants, Illinois CPA Society. He currently serves as a member of the board of directors, chair of the audit committee and member of the nominating and governance and compensation committees of Apollo Commercial Real Estate Finance Inc., positions he has held since September 2009 (audit and compensation committees) and May 2017 (nominating and governance committee). He has served as a member of the board of directors and the audit committee of MidCap FinCo Ltd. and MidCap FinCo Holdings Ltd. since February 2015. Mr. Salvati’s previous board memberships include Things Remembered, Inc., Lazydays, Inc., NCH Nu World Marketing, Ltd., Coho Energy, Inc., Prime Succession, Inc. and Castle Holdco 4, Ltd.

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Director Qualifications.  Mr. Salvati has significant experience in the area of corporate advisory services, with an emphasis on strategic planning, capital structure and mergers and acquisitions. In his prior executive positions, he was directly responsible for managing acquisition‑led growth within the relevant companies which are skills that we believe bring value to the Company. Mr. Salvati’s service on multiple public and private company boards over the last twelve years provides us with valuable insights into many of the issues that we face and useful perspectives in relation to compensation and corporate governance matters. Mr. Salvati, as a former auditor, has significant experience and expertise in finance, controls, accounting and audit matters.

Gary J. Taylor has served as a member of the Board of Directors since October 2015. From 2007 to 2012, Mr. Taylor was the Group President, Utility Operations of Entergy Corporation. As Group President, he was responsible for the financial and operational results for six electric utility companies and two natural gas companies, with a collective total of 2.9 million customers and $9.0 billion in annual revenue. From 2003 through 2007, Mr. Taylor served as the Chief Executive Officer and Chief Nuclear Officer for Entergy Nuclear, a subsidiary of Entergy Corporation. From 2000 through 2003, he served as the Chief Operating Officer for the Entergy Corporation subsidiary Entergy Nuclear South, and from 1995 through 2000, he served as Vice President and Chief Nuclear Officer of the V.C. Summer Nuclear station at SCANA Corporation. Mr. Taylor has served as a member of the board of the U.S. Chamber of Commerce and chaired the Energy, Clean Air and Natural Resources Committee. He also served on the board of the United Way of Greater New Orleans, along with the executive committee of the Nuclear Energy Institute, the board of directors of the Institute of Nuclear Power Operations and the board of the American Nuclear Society. He is currently a Trustee of the Virginia Military Institute foundation.

Since July 2016, Mr. Taylor has served as President and Chief Executive Officer of SERC Reliability Corporation, a non‑profit corporation responsible for promoting and improving the reliability and critical infrastructure of the bulk power system in the southeast United States. From February 2015 until July 2016, Mr. Taylor served as Vice President and Chief Operating Officer of SERC Reliability Corporation. He has also been the principal consultant at EnextConsulting, LLC since June 2012.

Director Qualifications.  Mr. Taylor has extensive experience in the energy services industry and a deep understanding of our business. He has prior experience on a boards of directors and in management rolls. Since his retirement from Entergy Corporation, Mr. Taylor has continued to serve as an executive for a non‑profit corporation focused on the energy industry and a management consulting firm.

Craig E. Holmes has served as a member of the Board of Directors since July 2017. Mr. Holmes has also served as Co-President and Co-CEO, along with Mr. Pagliara, since July 2017. Prior to that, in March 2017, he was appointed as the Company’s Chief Financial Officer and Principal Financial Officer. He previously served as the Company’s Senior Vice President of Finance from September 2015 until March 2017. Before joining the Company, from October 2014 to March 2015, he served as the Chief Financial Officer of Goodman Networks Incorporated. Prior to this, he served as Chief Financial Officer of Sizmek, Inc. (formerly Digital Generation, Inc.), a publicly traded open ad management platform company, from October 2012 through its spinoff, merger and company relocation in May 2014. Mr. Holmes served as Chief Financial Officer of Quickoffice, Inc., a global leader in mobile productivity solutions, from May 2011 through its sale to Google, Inc. in July 2012. From November 2009 to April 2011, Mr. Holmes provided advisory and consulting services to the board and management of Enfora Inc., a privately held global manufacturing and software development company. Mr. Holmes also previously served as Chief Financial Officer at two publicly traded corporations, EXCEL Communications (April 1995 to May 1999) and Intervoice, Inc. (August 2003 to November 2009). Mr. Holmes began his career at Arthur Andersen, where he rose to Partner level before leaving to join EXCEL Communications. He currently serves on the board of directors of Hobi International, Inc., where he has served since August 2009, and Independent Bank Group, where he has served since April 2013 and currently serves as chairman of the audit committee.

Director Qualifications . Mr. Holmes has a long history of service in financial and executive management roles in both private and public companies. He has extensive experience serving on and advising boards of directors and brings a wealth of knowledge and relationships to our Company.

Tracy D. Pagliara has served as a member of our Board of Directors since July 2017. Mr. Pagliara has also served as Co-President and Co-CEO, along with Mr. Holmes, since July 2017. Prior to that, he served as our Chief Administrative Officer, General Counsel and Secretary since January 2014, and also as Senior Vice President since November 2015. He previously served as our General Counsel, Secretary and Vice President of Business Development from April 2010 through December 2013. Prior to joining the Company, Mr. Pagliara served as the Chief Legal Officer of Gardner Denver, Inc., a leading global manufacturer of highly engineered compressors, blowers, pumps and other fluid transfer equipment, from August 2000 through August 2008. He also had responsibility for other roles during his tenure with Gardner Denver,

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including Vice President of Administration, Chief Compliance Officer and Corporate Secretary. Prior to joining Gardner Denver, Mr. Pagliara held positions of increasing responsibility in the legal departments of Verizon Communications/GTE Corporation from August 1996 to August 2000 and Kellwood Company from May 1993 to August 1996, ultimately serving in the role of Assistant General Counsel for each company. Mr. Pagliara has been elected to serve on the board of directors and audit, compensation and nominating and corporate governance committees of Uranium Resources, Inc. He is a member of the Missouri and Illinois State Bars and a Certified Public Accountant.

Director Qualifications . Mr. Pagliara has a deep understanding of the Company and its business, having been with the Company since 2010. He has worked in the industry for nearly 20 years and has extensive experience advising public companies. His legal and accounting background further add to his value as a member of the Board of Directors.

Each of Messrs. Macaluso, Cryan, Taylor and Mills was recommended for nomination by the Nominating and Corporate Governance Committee of the Board (the “Nominating and Corporate Governance Committee”), and was nominated for election by the full Board of Directors. Mr. Brown, Mr. Obus, Ms. Goodspeed, Mr. Holmes and Mr. Pagliara were each nominated for election by the full Board of Directors, including the members of the Nominating and Corporate Governance Committee. Messrs. Macaluso and Cryan were appointed as our directors by the Bankruptcy Court upon our emergence from bankruptcy in January 2008. Mr. Obus and Mr. Brown were appointed to the Board pursuant to an election and nomination agreement. All of our directors were re‑elected for new one‑year terms at our Annual Meeting of Stockholders held on May 8, 2015, excluding Mr. Taylor, Mr. Keller, Mr. Mills, Ms. Goodspeed, Mr. Brown, Mr. Obus, Mr. Holmes and Mr. Pagliara who were not appointed as directors until after the 2015 Annual Meeting of Stockholders.

 

Executive Officers and Key Employees of the Registrant

The following sets forth information regarding our executive officers and key employees as of December 31, 2016. Executive officers are appointed by, and hold office at the discretion of, our Board of Directors, subject to the terms of any employment agreements.

 

 

 

 

Name

Position

Terence J. Cryan

President and CEO

Craig E. Holmes

Senior Vice President of Finance

Timothy M. Howsman

Chief Financial Officer, Products and Principal Financial Officer

Tracy D. Pagliara

Senior Vice President, Chief Administrative Officer, General Counsel and Secretary

 

Subsequent to December 31, 2016, Mr. Howsman retired from all positions with the Company in March 2017. Immediately thereafter, Mr. Holmes was appointed the Chief Financial Officer and Principal Financial Officer of the Company. Concurrently Mark F. Jolly, who had been serving as Vice President Finance, became Chief Accounting Officer and Principal Accounting Officer. On July 26, 2017, Mr. Cryan resigned from his positions as President, CEO and Director. Immediately thereafter, Mr. Holmes and Mr. Pagliara were appointed Co-Presidents, Co-CEOs and directors, and Mr. Wheelock was appointed Vice President, Administration, General Counsel and Secretary. In August 2017, Mr. Jolly ceased his employment as Chief Accounting Officer and Principal Accounting Officer and Ms. Gonzalez was appointed Chief Financial Officer.

Terence J. Cryan , 55, served as a member of the Board of Directors from January 2008 to July 2017 and as our President and CEO from March 20, 2015 until July, 26, 2017. Mr. Cryan has over 30 years of international business experience based in both the United States and Europe. Until March 2015, he served as Managing Director of Concert Energy Partners, a New York City‑based investment and private equity firm focused on the energy industry that he co‑founded in 2001. From September 2011 through April 2012, he served as interim President and Chief Executive Officer of Uranium Resources Inc. He also served as President and Chief Executive Officer of Medical Acoustics LLC from 2007 through 2010. Prior to 2001, Mr. Cryan was a Senior Managing Director in the Investment Banking Division at Bear Stearns.

Earlier in his career, Mr. Cryan served as a Managing Director, head of the Energy & Natural Resources Industry Group and member of the Investment Banking Operating Committee at Paine Webber. Mr. Cryan joined Paine Webber following its acquisition of Kidder, Peabody in 1994.

Since 2012, Mr. Cryan served as a director of Ocean Power Technologies Corporation. During the past five years, Mr. Cryan served as a director of Superior Drilling Products Incorporated (June 2014 to December 2016), Uranium Resources, Inc. (October 2006 to March 2016), The Providence Service Corporation (May 2009 to May 2011) and Gryphon

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Gold Corporation (August 2009 to December 2012). In January 2015, Mr. Cryan became a National Association of Corporate Directors Board Leadership Fellow, one of the highest levels of credentialing for corporate directors and corporate governance professionals.

Craig E. Holmes , 60, has served as Co-President and Co-CEO, along with Mr. Pagliara, since July 2017. Prior to that, in March 2017, he was appointed as the Company’s Chief Financial Officer and Principal Financial Officer. He previously served as the Company’s Senior Vice President of Finance from September 2015 until March 2017. Previously, from October 2014 to March 2015, he served as the Chief Financial Officer of Goodman Networks Incorporated. Prior to this, he served as Chief Financial Officer of Sizmek, Inc. (formerly Digital Generation, Inc.), a publicly traded open ad management platform company, from October 2012 through its spinoff, merger and company relocation in May 2014. Mr. Holmes served as Chief Financial Officer of Quickoffice, Inc., a global leader in mobile productivity solutions, from May 2011 through its sale to Google, Inc. in July 2012. From November 2009 to April 2011, Mr. Holmes provided advisory and consulting services to the board and management of Enfora Inc., a privately held global manufacturing and software development company. Mr. Holmes also previously served as Chief Financial Officer at two publicly traded corporations, EXCEL Communications (April 1995 to May 1999) and Intervoice, Inc. (August 2003 to November 2009). Mr. Holmes began his career at Arthur Andersen, where he rose to Partner level before leaving to join EXCEL Communications. He currently serves on the board of directors of Hobi International, Inc., where he has served since August 2009, and Independent Bank Group, where he has served since April 2013 and currently serves as chairman of the audit committee.

Timothy M. Howsman , 56, served as our Chief Financial Officer, Products from April 2015 through March 2017 and concurrently served as our Principal Financial Officer from November 2015 through March 2017. He previously served as our Corporate Controller from August 2014 through March 2015. Prior to joining the Company, Mr. Howsman served as the Vice President, Controller of Blue Lynx Media, LLC, the accounting shared service center for Tribune Publishing, from May 2011 through July 2014. Prior to joining Blue Lynx Media, Mr. Howsman held positions of increasing responsibility in the accounting department of Dresser, Inc., an international manufacturing company providing highly engineered products primarily to the energy sector, from April 2006 to January 2011. During his tenure at Dresser, his roles included serving as the Assistant Corporate Controller and Director, Accounting Center. Mr. Howsman began his career working for one of the former Big Eight public accounting firms, after which he worked in various industries and held positions of increasing responsibility in both accounting and finance as well as operations. He is a Certified Public Accountant, Certified Management Accountant and Certified Internal Auditor.

Tracy D. Pagliara , 54, has served as Co-President and Co-CEO, along with Mr. Holmes, since July 2017. He served as our Chief Administrative Officer, General Counsel and Secretary since January 2014, and also as Senior Vice President from November 2015 until July 2017. He previously served as our General Counsel, Secretary and Vice President of Business Development from April 2010 through December 2013. Prior to joining the Company, Mr. Pagliara served as the Chief Legal Officer of Gardner Denver, Inc., a leading global manufacturer of highly engineered compressors, blowers, pumps and other fluid transfer equipment, from August 2000 through August 2008. He also had responsibility for other roles during his tenure with Gardner Denver, including Vice President of Administration, Chief Compliance Officer and Corporate Secretary. Prior to joining Gardner Denver, Mr. Pagliara held positions of increasing responsibility in the legal departments of Verizon Communications/GTE Corporation from August 1996 to August 2000 and Kellwood Company from May 1993 to August 1996, ultimately serving in the role of Assistant General Counsel for each company. Mr. Pagliara has been elected to serve on the board of directors and audit, compensation and nominating and corporate governance committees of Uranium Resources, Inc. He is a member of the Missouri and Illinois State Bars and a Certified Public Accountant.

Erin Gonzalez , 44, joined the Company as the Tax Director in August 2012, and then served as Company’s Vice President, Tax and Treasury, and the Corporate Treasurer from July 2014 until her promotion to Chief Financial Officer. Previously, Ms. Gonzalez worked at Wal-Mart Stores, Inc., where she served in a variety of roles, including as Director, Global eCommerce Taxation and Tax Planning. She also taught Masters-level courses in Advanced Corporate Taxation and Individual Tax Planning as an adjunct professor at University of Arkansas. Before joining Wal-Mart Stores, Inc., Ms. Gonzalez worked at Arthur Andersen from 1995 to 2002, where she rose to Experienced Manager, followed by a year at KPMG US LLP. She is a Certified Public Accountant.

Charles E. Wheelock , 48, has served as our Vice President, Administration, General Counsel and Secretary since July 2017. He joined the Company in September 2011 as Associate General Counsel and thereafter assumed roles of increasing responsibility, including Vice President, Deputy General Counsel and Chief Compliance Officer. He led the human resources, recruiting and labor relations in the Services segment prior to his current appointment. Prior to joining the Company, Mr. Wheelock spent 10 years at General Electric Company, serving in a variety of roles in its Energy Services and Power Generation businesses. Mr. Wheelock is a member of the State Bar of Georgia.

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Section 16(a) Beneficial Ownership Reporting Compliance

Section 16(a) of the Exchange Act requires that our executive officers, directors and persons who own beneficially more than 10% percent of our outstanding common stock file reports of ownership and changes in ownership and furnish us with copies of all Section 16(a) reports so filed. To our knowledge, based solely on a review of these reports filed with the SEC and certain written representations furnished to us, we believe that our executive officers and directors complied with all applicable Section 16(a) filing requirements during 2016.

Code of Business Conduct and Ethics and Corporate Governance Guidelines

The Board has adopted a Code of Business Conduct and Ethics, which outlines the principles of legal and ethical business conduct under which we do business. The Code of Business Conduct and Ethics is applicable to all of our directors, officers and employees. The Code of Business Conduct and Ethics is available under the heading “Corporate Governance” of the Investor Relations section of our website at http://www.globalpower.com/. Upon request to our Secretary, we will provide a copy of the Code of Business Conduct and Ethics free of charge. Any substantive amendment of the Code of Business Conduct and Ethics, and any waiver of the Code of Business Conduct and Ethics for executive officers or directors, will be made only after approval by the Board or a committee of the Board, and will be disclosed on our website. In addition, any such waiver will be disclosed within four days on a Form 8‑K filed with the SEC if then required by applicable rules and regulations.

In addition, the Board has adopted Corporate Governance Guidelines. The Corporate Governance Guidelines address issues such as the criteria and requirements for the selection and retention of members of the Board, the procedures and practices governing the operation and compensation of the Board and the principles under which management shall direct and operate the business of the Company and its subsidiaries. The Corporate Governance Guidelines are available under the heading “Corporate Governance” of the Investor Relations section of our website at http://www.globalpower.com/. Upon request to our Secretary, we will provide a copy of the Corporate Governance Guidelines free of charge. Any substantive amendment of the Corporate Governance Guidelines will be made only after approval by the Board or a committee of the Board, and will be disclosed on our website.

Board’s Role in Risk Oversight

The Board as a whole has ultimate responsibility for risk oversight and the standing committees of the Board assist in fulfilling this responsibility. In particular, the Audit Committee oversees risk management in the areas of internal control over financial reporting, disclosure controls and procedures and legal and regulatory compliance. The Audit Committee also reviews with management our policies and practices with respect to risk assessment and management, and our exposure to material financial risk and management’s efforts to monitor and control such exposure. The Compensation Committee of the Board (the “Compensation Committee”) oversees our compensation programs and reviews the conduct incented by those programs, including the impact on risk‑taking by our executive officers and employees, as further described under “Part III—Item 11. Executive Compensation—Compensation Discussion and Analysis” below. The Nominating and Corporate Governance Committee oversees the organization, membership and structure of the Board and our corporate governance practices. The committee members regularly report to the full Board on material developments in their areas of oversight.

Director Independence

Our Board of Directors has reviewed the criteria for determining the independence of our directors under the SEC rules. It has affirmatively determined that currently each of Messrs. Macaluso, Bartoli, Rescoe, Salvati, Taylor, Mills, Brown and Obus and Ms. Goodspeed is independent under such criteria. Accordingly, during 2016 and continuing through the filing date of this 10‑K, our Board of Directors has been comprised of a substantial majority of directors who qualify as independent directors under the rules adopted by the SEC and U.S national stock exchanges.

In considering the independence of our directors, the Board of Directors specifically addressed those matters disclosed in “Part III—Item 13. Certain Relationships and Related Transactions, and Director Independence.” There were no specific transactions, relationships or arrangements that were considered by the Board of Directors in determining the independence of any of our directors. Of the independent directors listed in the immediately preceding paragraph, Messrs. Bartoli, Salvati and Rescoe will not stand for re‑election at the next Annual Meeting of the Company’s stockholders, and therefore, effective as of the date of the Annual Meeting, they will no longer be members of the Board of Directors or any committee thereof.

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Audit Committee Financial Expert

We currently have a standing Audit Committee, which, as of December 31, 2016, was composed of Mr. Mills, as chairman, Messrs. Bartoli, Salvati, Rescoe and Brown and Ms. Goodspeed. Our Board of Directors has determined that:

·

Each of Ms. Goodspeed, Mr. Brown, Mr. Rescoe, Mr. Salvati and Mr. Mills qualifies as an “audit committee financial expert,” as defined by Item 407(d)(5) of Regulation S‑K; and

·

Each member of the Audit Committee:

·

meets the criteria for independence set forth in Rule 10A‑3(b)(1) under the Exchange Act;

·

has not participated in the preparation of the financial statements of the Company or any current subsidiary of the Company at any time during the past three years; and

·

is able to read and understand fundamental financial statements, including a company’s balance sheet, income statement and cash flow statement.

.

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Item 11.  Executive Compensation.

Compensation Discussion and Analysis

This Compensation Discussion and Analysis provides a summary of the compensation arrangements and decisions with respect to our named executive officers in 2016, including the individuals listed in the table below (who are referred to as our “current named executive officers”):

Name

    

Position

Terence J. Cryan

 

President and CEO

Timothy M. Howsman

 

Chief Financial Officer, Products and Principal Financial Officer

Tracy D. Pagliara

 

Senior Vice President, Chief Administrative Officer, General Counsel and Secretary

Craig E. Holmes

 

Former Senior Vice President of Finance

 

Effective March 16, 2017, Mr. Howsman retired from his position as Chief Financial Officer, Products, and Mr. Holmes was appointed Chief Financial Officer and Principal Financial Officer. On July 26, 2017, Mr. Cryan resigned from his positions as President, CEO and director. Immediately thereafter, Mr. Holmes and Mr. Pagliara were appointed Co-Presidents, Co-CEOs and directors, and Mr. Wheelock was appointed Vice President, Administration, General Counsel and Secretary. Effective August 2, 2017, Ms. Gonzalez was appointed Chief Financial Officer and Principal Financial Officer.

Our named executive officers for 2016 also included two executives whose employment terminated during the year (who are referred to as our “former named executive officers”): Ross Marcoot, former President of Global Power Services, and Keri Jolly, former Chief Human Resources Officer.

Section 1: Executive Summary

Compensation Objectives for 2016

The overriding objective of our compensation program in 2016 was to attract and retain a quality management team capable of re-establishing a solid foundation for our business through process discipline, operating rigor and accountability, while continuing to provide our customers with high quality products and services.

Our Compensation Policies and Practices

 

·

Stock Ownership Guidelines.  Our stock ownership guidelines require the officers of the Company to hold a minimum level of the Company’s shares of common stock; for the CEO, the lesser of three times his base salary or 75,000 shares, and for the other named executive officers, the lesser of two times his or her base salary or 40,000 shares. These guidelines ensure that each executive has personal wealth tied to the long-term success of the Company and is therefore aligned with stockholder interests.

 

·

No Hedging or Pledging of Company Stock.  Our insider trading policy prohibits our employees, officers and directors from engaging in hedging transactions involving Company stock or holding Company stock in a margin account. Additionally, our employees, officers and directors may only pledge securities with the consent of the Company. No named executive officer or director has pledged securities.

 

·

Claw Back Policy.  We maintain a “claw back” policy, under which our Board has the ability to require our executive officers to forfeit or repay short-term incentive (“STI”) awards and other performance-based compensation if:

o

The payment, grant or vesting of the compensation was based upon financial results that were subsequently restated;

o

The Board determines, in its sole discretion, that the officer engaged in fraud or misconduct that caused or contributed to the need for the restatement;

o

The officer received more compensation than he or she would have received if the financial results had been properly reported; and

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o

The Board determines, in its sole discretion, that forfeiture or repayment of all or a portion of the officer’s performance-based compensation is in the best interest of the Company and its stockholders

 

·

No Excise Tax Gross Ups.  We do not provide excise tax gross ups for severance benefits received in connection with a change in control of the Company.

 

·

Double Trigger Vesting.  Our 2015 Equity Incentive Plan provides for “double trigger” vesting of equity awards assumed in a change in control transaction, so that the awards will not automatically vest on a change in control. Instead, the awards assumed in a transaction will continue to vest on their regularly-scheduled vesting date or, if earlier, upon a termination without cause or resignation for good reason within two years after a change in control.

 

·

No Supplemental Executive Retirement Plan. We do not maintain a supplemental executive retirement plan or any other type of defined benefit retirement plan.

 

·

Consideration of Prior Year’s “Say on Pay” Vote.  As in previous years, stockholders continued to show support for our executive compensation program by approving the compensation of our named executive officers by a vote of approximately 93% of the shares represented by person or by proxy at the 2015 Annual Meeting. The Compensation Committee views the continued support of our stockholders as an endorsement of our compensation program and objectives. We did not hold a stockholders meeting in 2016.

 

Section 2: Elements of Total Direct Compensation

A brief summary of our total direct compensation—consisting of base salary, STI opportunities and LTI opportunities—for our named executive officers is set forth below.

Annual Base Salaries

The Compensation Committee intends to provide our named executive officers with competitive base salaries that are commensurate with their job responsibilities, experience and performance. In 2016, the Compensation Committee approved merit increases of 2.2% for Mr. Cryan and 2.5% for Messrs. Howsman, Pagliara, Holmes and Marcoot, which were consistent with the merit pool increases for the general employee population.

For more information about the 2016 base salaries for each of our named executive officers, please refer to the “Salary” column of and the related footnotes in “—2016 Summary Compensation Table” below.

Short Term Incentive Compensation

The STI plan is designed to motivate our named executive officers to achieve each year’s business plan objectives and individual performance goals.

As part of its management performance evaluation in August 2016, the Compensation Committee reviewed the threshold, target and maximum award opportunities under the STI plan for each of the current named executive officers, which were expressed as a percentage of base salary. During the annual review process, the Compensation Committee did not adjust the target STI opportunity for the current named executive officers because the levels were competitively positioned at that time. The target STI opportunity levels for the current named executive officers, expressed as a percentage of annual base salary, are set forth in the table below.

 

 

 

Named Executive Officer

 

Target

Mr. Cryan

 

80%

Mr. Howsman

 

50%

Mr. Pagliara

 

65%

Mr. Holmes

 

65%

 

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Performance Objectives

The performance objectives for the 2016 STI opportunity for each current named executive officer were allocated 70% to adjusted EBITDA objectives at the corporate and business unit levels and 30% to key performance initiatives as follows:

 

 

 

 

 

 

 

 

EBITDA Performance Goal Weighting

KPI Weighting

 

Total

Mechanical *

Braden Europe

Electrical

Williams

Hetsco

Consolidated

3%

10%

5%

12%

5%

35%

30%

100%

*Excludes Braden Europe

Adjusted EBITDA Objectives

Adjusted EBITDA was defined by reference to the Company’s Revolving Credit Facility, which generally defines adjusted EBITDA as net income (i) plus: income and franchise taxes; interest expense; amortization, depreciation and other non-cash items, including any non-cash write-downs or non-cash write-offs, including fixed asset impairments or write-downs, intangible asset impairments and deferred tax asset write-offs; extraordinary losses (excluding extraordinary losses from asset dispositions, severance and discontinued operations, unless approved by the administrative agent under the Revolving Credit Facility); non-cash stock compensation expense; expenses paid in cash attributable to the restatement; and expenses attributable to the Revolving Credit Facility, and (ii) less: interest income, federal, state, local and foreign income tax benefits, write-ups, re-evaluations and non-cash gains resulting from the marking or re-evaluation of any asset and any extraordinary gains. However, at the time the performance goals were established, the Compensation Committee authorized the add back of severance, restructuring and divestiture charges that were not included in the Board-approved budget for fiscal 2016 (and not otherwise added back under the Revolving Credit Facility definition) in calculating adjusted EBITDA for purposes of the STI plan. The Compensation Committee believes that adjusted EBITDA is the appropriate financial metric because it: (i) excludes non-cash expense impact of purchase price accounting arising from acquisitions and thus is more consistent with our long-term strategic plan; (ii) maintains focus on profitability of the entire Company; and (iii) is an investor preferred metric.

The 2016 adjusted EBITDA targets and actual performance results for purposes of the STI plan were as follows.

 

 

 

 

 

 

 

 

Achievement

Level

EBITDA Goals (in thousands)

Weighted Average Payout %

Mechanical *

Braden Europe

Electrical

Williams

Hetsco

Consolidated

Threshold

(35% weighted average payout opportunity)

$2,029

$6,417

$3,049

$7,843

$3,425

$5,575

 

Target

(70% weighted average payout opportunity)

$2,255

$7,130

$3,387

$8,715

$3,806

$6,194

 

Maximum

(170% weighted average payout opportunity)

$7,070

$9,066

$6,516

$15,593

$5,276

$21,6816

 

Actual Results

$(1,856)

$7,227

$(1,611)

$9,169

$3,271

$702

 

Weighted Average Payout %

10.6475%

12.3216%

22.9691%

*Excludes Braden Europe

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Key Performance Initiatives

The Compensation Committee based a meaningful portion (i.e., 30%) of the STI opportunity for the current named executive officers on its assessment of key performance initiatives, to provide the flexibility to recognize, differentiate and reward the achievement of strategic business goals. The 2016 key performance initiatives for the current named executive officers were as follows:

Goal Category

Description

Weight

Corporate

File restated financials by December 31, 2016

20%

Liquidity initiatives/refinancing

20%

Enhance corporate compliance program

20%

Customer Focus/Operational Excellence

On time delivery of products and services

10%

Maintain production and service quality at contractual levels

10%

Employee Engagement/ Safety

Promote employee engagement through programs and regular communications

10%

Safety record – better of:
(a)  OSHA Total Reportable Cases Incident Rate of 4.8; or
(b) 20% reduction in 2016 recordable rate vs. 2015

10%

 

The Compensation Committee determined that the current named executive officers achieved each of the key performance initiatives listed above, other than filing restated financials by the end of 2016, which resulted in an 80% achievement level for the key performance initiatives, or a weighted average payout of 24% of the participant’s target STI opportunity.

Payouts of STI Awards

Each current named executive officer was entitled to a payout under the 2016 STI program equal to 46.9691% of his target annual incentive opportunity, which reflected a weighted average achievement level of 22.9691% for the adjusted EBITDA measures and 24% for the key performance initiatives. Pursuant to the terms of her severance agreement, Ms. Jolly was entitled to a pro-rated payout under the STI program, based on actual performance during the entire fiscal year relative to performance goals applicable to similarly-situated corporate officers.

Retention Bonus

In order to encourage Mr. Howsman’s full attention and dedication to the Company in his role as interim principal financial officer, he received the following additional retention incentives in March 2016: (i) a retention bonus opportunity equal to $125,000, provided that he remained continuously employed with the Company and its affiliates until the date the Company completed and made an initial filing of its restated financials for required periods prior to 2015 and the original filing of its 2015 financials, or, if earlier, March 31, 2017, which shall be in lieu of any incentive opportunity under the 2016 STI program; (ii) a discretionary bonus of $150,000 that was paid in March 2016, subject to repayment if he voluntarily resigned from the Company and its affiliates, or if the Company terminated his employment for “cause,” in either case prior to the vesting date of the retention bonus; (iii) reimbursement of up to $3,700 for relocation costs and of up to $3,000 per month for temporary living expenses through March 31, 2017 (or, if earlier, through the date of termination of employment); and (iv) the opportunity to accrue vacation time in excess of the maximum limits imposed under the Company’s vacation policy.

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Long-Term Incentive Compensation

As part of its annual management performance evaluation, the Compensation Committee reviewed the long-term incentive (“LTI”) award levels for our current named executive officers. When considering appropriate award levels, the Compensation Committee considered its assessment of each executive’s general performance during the year, as well as his or her relative roles and responsibilities and potential within the Company, our burn rate, the potential dilution that will occur to our stockholders and the median levels of market surveys. Based on this information, the Compensation Committee granted the LTI target opportunities set forth below.

 

 

 

Named Executive Officer

 

LTI Target Opportunity (as a % of base salary)

Mr. Cryan

 

125%

Mr. Howsman

 

20%

Mr. Pagliara

 

75%

Mr. Holmes

 

85%

 

On August 5, 2016, the Compensation Committee approved a new 2016 LTI plan design, which was intended to enhance retention incentives and drive sustained stock price appreciation. Each current named executive officer’s award opportunity under the 2016 LTI plan consisted of two components of roughly equal value:

·

Performance-based restricted share units (“RSUs”), which generally vest in two equal installments on March 30, 2017 and March 30, 2018, provided that the applicable performance goal has been satisfied by each such date (and, if not, through the date the applicable performance goal is subsequently achieved, which must occur within five years after the date of grant). The applicable performance goal will be satisfied if the Company achieves a per share price greater than or equal to $5.50 for any period of 30 consecutive trading days during the five-year period ending on the fifth anniversary of the date of grant. If earned, the performance-based RSUs will be paid in shares.

·

Time-based RSUs, which generally vest on March 30, 2018.

Adjustment to 2014 Long-Term Incentives

In 2016, there were increased retention concerns due to the uncertainty inherent in the business and leadership transitions discussed above and the significant undertaking that was involved in the financial restatement process and operational turnaround. We did not expect any of the 2014 performance-based RSUs to become payable because achievement of the threshold operating margin and relative total shareholder return goals for the 2014-2016 performance period was not reasonably probable. As a result, in June 2016, the Compensation Committee converted the outstanding 2014 performance-based RSUs to time-based RSUs to motivate and retain the executives. The converted awards will vest, subject to continued employment, through an extended vesting date of December 15, 2017.

Section 3: Compensation Consultant and Peer Group

Compensation Consultant

In 2016, the Compensation Committee retained Meridian Compensation Partners, LLC (“Meridian”) to serve as its independent consultant to assist in developing and reviewing our executive compensation program. Meridian reports directly to the Compensation Committee and serves at the sole discretion of the Compensation Committee. It does not perform any other services for us. The Compensation Committee has assessed the independence of Meridian pursuant to SEC rules and concluded that no conflict of interest exists that would prevent the consulting firm from independently advising the Compensation Committee.

We believe that each element of our compensation program should remain competitive in order to retain, and, if necessary, attract, experienced, high caliber executives. To achieve this objective, Meridian was asked to review competitive compensation data, compare current compensation levels to the market and assist in establishing compensation levels. The market data was derived from several sources, including the companies in a compensation peer group established by the Compensation Committee, with the advice of Meridian, and selected compensation surveys.

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Compensation Peer Group

Our compensation peer group consists of companies that primarily operate in the capital goods and energy industry and represent the market in which we compete for executive talent and leadership. Based on these factors, and upon the advice and recommendation of Meridian, the Compensation Committee used the following peer group for purposes of reviewing the compensation program for our named executive officers in 2016:

 

 

Compensation Peer Group

Astec Industries, Inc.

MYR Group Inc.

Chicago Bridge & Iron Company N.V.

Aegion Corporation

Donaldson Company, Inc.

Graham Corporation

CECO Environmental Corp.

Willbros Group, Inc.

Dycom Industries, Inc.

AZZ, Inc.

BWX Technologies, Inc.

Powell Industries, Inc.

Matrix Service Company

Team, Inc.

 

Section 4: Employment, Severance and Change in Control Arrangements

Employment Agreements and Offer Letters

We entered into employment agreements with Messrs. Cryan and Pagliara that entitle them to severance benefits in the event of an involuntary termination of employment other than for disability or “cause” (in the case of Mr. Cryan and as defined in his employment agreement) or without “cause” (in the case of Mr. Pagliara and as defined in his employment agreement), a termination by the executive for “good reason” (each as defined in his respective employment agreement), or if we elect not to renew the term of his agreement. In exchange for the severance benefits, the named executive officers must sign a release of claims against us, agree not to disclose Company confidential information and agree not to compete against us or solicit our employees or customers. These provisions protect our interests and help to ensure our long-term success.

In connection with his appointment as Senior Vice President of Finance, Mr. Holmes entered into an offer letter agreement with the Company. Under the terms of the offer letter, Mr. Holmes was appointed Senior Vice President of Finance with the expectation that he would be appointed Chief Financial Officer of the Company following the Company’s filing of its amended Form 10-K for the fiscal year ended December 31, 2015. In exchange, Mr. Holmes is to receive an annual base salary of $395,000 and a target STI opportunity of 65% of his annual base salary. The offer letter also provides that Mr. Holmes is eligible for participation in the Executive Severance Plan, with an initial “salary continuation period” of six months, which increased to 12 months after he completed at least six months of service and received a satisfactory performance review.

We entered into a letter agreement with Mr. Marcoot that provides that upon a termination without “cause” (as defined in his letter agreement) by the Company, Mr. Marcoot would be entitled to receive base salary continuation for one year.

Executive Severance Plan

In 2016, Mr. Howsman, Mr. Holmes and Ms. Jolly each participated in the Executive Severance Plan (“ESP”), which entitled them to severance benefits in the event of an involuntary termination of employment other than for “cause” or a termination by the executive for “good reason.” The severance benefits equal: (i) salary continuation of one year for Mr. Holmes and Ms. Jolly and six months for Mr. Howsman, (ii) payment of the annual incentive earned for the fiscal year preceding the date of termination to the extent not previously paid and (iii) if the date of termination occurs at least three full calendar months after the beginning of the Company’s fiscal year, a pro-rated annual incentive for the year of termination based on actual performance results for the entire year. In exchange for the severance benefits, the named executive officers must sign a release of claims against us. The ESP is designed to standardize the severance protections provided to our executive officers and eliminate the need for individual employment agreements for executives other than the CEO going forward.

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Enhancements on a Change in Control

The current named executive officers, except Mr. Cryan, are not entitled to enhanced cash severance benefits as the result of a change in control, and we do not provide excise tax gross-up protection with respect to any benefits received in connection with a change in control.

Mr. Cryan’s employment agreement provides that in the event of an involuntary termination of employment other than for disability or “cause” or a termination by Mr. Cryan for “good reason,” in either case within 90 days prior to or two years following a “change in control” (as defined in our 2015 Equity Incentive Plan), Mr. Cryan would be entitled to be paid a lump sum payment equal to the product of his annual base salary multiplied by two and his target STI opportunity, without pro-ration.

The RSUs granted to our named executive officers prior to 2015 provide for fully accelerated vesting of all RSUs (including both time-based and performance-based RSUs) if we undergo a change in control. Under our 2015 Equity Incentive Plan, all equity awards granted thereunder will provide for “double trigger” vesting of equity awards assumed in a change in control transaction, so that the awards will not automatically vest on a change in control. Instead, the awards assumed in a transaction will continue to vest on their regularly-scheduled vesting date or, if earlier, upon a termination without cause or resignation for good reason within two years after a change in control.

Section 5: Additional Compensation Matters

Retirement and Welfare Benefits

We make available to each of our named executive officers certain benefits that are generally available to all salaried employees, including medical, dental, vision, life, accidental death and dismemberment, travel accident and short- and long-term disability insurance. All of our named executive officers are entitled to participate in our 401(k) plan and its flexible spending benefit plan and are entitled to four weeks of paid vacation each year. These benefits are made available so that we can provide competitive compensation to our salaried employees and our named executive officers.

Stock Ownership Guidelines

In 2011, the Compensation Committee approved stock ownership guidelines for our executive officers in order to further align the interests of our executive officers with the interests of our other stockholders. Under the guidelines, each named executive officer is expected to accumulate the lesser of the fixed and variable number of shares as follows:

 

 

 

 

 

 

Position

 

 

Fixed Number of Shares

 

Variable Number of Shares

CEO

 

 

75,000

 

3x Base Salary

Other Named Executive Officers

 

 

40,000

 

2x Base Salary

 

The target date for any new named executive officers to meet these stock ownership guidelines is five years from the date of his or her appointment or hire date. For purposes of these guidelines, the named executive officer will be deemed to “own” shares of our common stock that are beneficially owned by such person, including shares underlying equity awards that will pay out within 60 days of the applicable measuring date. The Compensation Committee will periodically review and adjust, if appropriate, the fixed number of shares based on stock price, adjustments to compensation, evolving market practices and such other factors as it deems appropriate.

Risk Assessment

We believe that our compensation policies and practices for all employees, including executive officers, do not create risks that are reasonably likely to have a material adverse effect on us. Although a significant portion of our executive compensation program traditionally has been performance-based, we have focused on aligning our compensation policies with the long-term interests of our stockholders and avoiding rewards that could create excessive or inappropriate risks to the Company.

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Section 162(m) of the Tax Code

Section 162(m) of the Code (“Section 162(m)”) provides that we generally may not deduct, for federal income tax purposes, annual compensation in excess of $1 million paid to certain named executive officers. Certain “performance-based compensation” paid pursuant to stockholder approved plans is not subject to the deduction limit. The Compensation Committee, however, retains the flexibility to award cash or equity compensation to an executive that is not deductible under Section 162(m) if we believe that it is in our stockholders’ best interests.

For example, the conversion of the performance-based RSUs for the 2014-2016 performance period into time-based RSUs, as described in more detail above in “—Section 2: Elements of Total Direct Compensation—Long-Term Incentive Compensation—Adjustment to 2014 Long-Term Incentives,” caused those awards to lose their status as “performance-based compensation” under Section 162(m). In addition, only 125,000 of the 213,000 performance-based RSUs granted to Mr. Cryan in 2016 were intended to qualify for the performance-based compensation exception; the remaining 88,000 performance-based RSUs were not intended to so qualify and therefore were not subject to the per-participant award limits imposed on those awards under the 2015 Equity Incentive Plan.

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2016 Summary Compensation Table

The following table presents information regarding the compensation earned by our named executive officers in each of 2014, 2015 and 2016, as applicable.

Name and Principal Position

Fiscal
Year

Salary
($)

Bonus
($)(1)

Stock
Awards
($)(2)(3)

 

Option
Awards
($)(4)

Non‑Equity
Incentive Plan
Compensation
($)(5)

All Other
Compensation
($)(6)

Total
($)

Terence J. Cryan (7)  

2016

689,876

1,377,032

259,223

17,605

2,343,736

President and CEO

2015

502,654

212,300

314,760

129,864

1,159,578

 

 

 

 

 

 

 

 

 

Timothy M. Howsman (7)

2016

281,875

150,000

79,582

39,132

550,589

Chief Financial Officer, Products and Principal Financial Officer

2015

251,102

220,153

7,666

478,921

 

 

 

 

 

 

 

 

 

Tracy D. Pagliara (7)

2016

392,135

445,093

119,719

13,098

970,045

Senior Vice President,

2015

340,264

628,313

11,684

980,261

Chief Administrative

Officer, General Counsel and Secretary

2014

328,609

276,719

226,132

9,330

840,790

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Craig E. Holmes (7)
Senior Vice President of Finance

2016

404,875

484,858

123,608

9,822

1,023,163

 

 

 

 

 

 

 

 

 

Ross Marcoot (8)

2016

168,656

221,502

390,158

President of Global Power Services

2015

302,885

65,000

430,402

192,185

277

990,749

 

 

 

 

 

 

 

 

 

Keri Jolly (9)

2016

103,618

26,768

209,537

339,923

Chief Human Resources Officer

2015

310,003

362,574

6,854

679,431

 

 

 

 

 

 

 

 

 

(1) This column reflects signing or retention bonuses paid to our named executive officers for the applicable year.

(2) This column does not reflect the value of stock awards that was earned by the named executive officers during each of the years listed above. Rather, as required by applicable SEC rules, this column reflects the aggregate grant date fair value of time-based RSUs and performance-based RSUs granted to our named executive officers in the applicable year, computed in accordance with FASB ASC Topic 718—Compensation—Stock Compensation (“FASB ASC Topic 718”). The grant date fair value of the performance-based RSUs was based on the probable outcome of the applicable performance conditions as of the date of grant. The grant date fair value of the performance-based RSUs for 2016, assuming that the highest level of performance would be achieved, was as follows: for Mr. Cryan, $832,830; for Mr. Howsman, $54,740; for Mr. Pagliara, $285,430; and for Mr. Holmes, $332,350. For more detail on the separate grants of time-based RSUs and performance-based RSUs, please refer to the Grants of Plans-Based Awards table below in “—2016 Grants of Plan Based Awards.” For a discussion of the assumptions we made in valuing the time-based RSUs and performance-based RSUs, please see “Note 3—Summary of Significant Accounting Policies—Stock-Based Compensation Expense” to our Consolidated Financial Statements.

(3) This column also reflects, for 2016, the incremental fair value, determined in accordance with FASB ASC Topic 718, attributable to the conversion of the performance-based RSUs for the 2014-2016 performance period into time-based RSUs for certain named executive officers, as described more fully above in “—Section 2: Elements of Total Direct Compensation—Long-Term Incentive Compensation—Adjustment to 2014 Long-Term Incentives.” The additional incremental fair value associated with the conversion was $34,905 for Mr. Pagliara.

(4) This column does not reflect the value of shares acquired upon the exercise of the stock option granted to Mr. Cryan in 2015. Rather, as required by applicable SEC rules, this column reflects the aggregate grant date fair value of the stock option, computed in accordance with FASB ASC Topic 718. For a discussion of the assumptions we made in valuing the stock option, see “Note 3—Summary of Significant Accounting Policies—Stock-Based Compensation Expense” to our Consolidated Financial Statements. The stock option has an exercise price of $13.85 per share and a five year term. As of August 2017, this stock option was “underwater,” meaning that the exercise price per share significantly exceeded the closing price of our shares on that date.

(5) This column reflects amounts earned by our named executive officers under our STI plan for the applicable year. The terms of the plan are described more fully in above in “—Section 2: Elements of Total Direct Compensation—Short-Term Incentive Compensation.”

(6) The amounts in the All Other Compensation column consist of the following compensation items for 2016: for Mr. Cryan, 401(k) matching contribution of $11,307 and reimbursement for airline tickets, ground transportation and parking for trips to New York City of $6,298; for Mr. Howsman, 401(k) matching contributions of $9,703, cell phone reimbursement of $720, relocation costs of $3,700, forfeited vacation deposit of $500 and temporary living expenses of $24,509; for Mr. Pagliara, 401(k) matching contributions of $9,773 and tax preparation fees of $3,325; for Mr. Holmes, 401(k) matching contributions of $9,102 and cell phone reimbursement of $720; for Mr. Marcoot, 401(k) matching contributions of $7,817, severance pay of $136,601, relocation fees of $63,707 and vacation payout of $13,378; and for Ms. Jolly, 401(k) matching contributions of $4,342, severance pay of $202,695 and $2,500 for reimbursed attorney fees in connection with her termination.

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(7) Effective March 16, 2017, Mr. Howsman retired from his position as Chief Financial Officer, Products, and Mr. Holmes was appointed Chief Financial Officer and Principal Financial Officer.   Effective July 26, 2017, Mr. Cryan resigned from his positions as President, CEO and director. Upon his resignation, Mr. Holmes and Mr. Pagliara were appointed Co-Presidents, Co-CEOs and directors, and Mr. Wheelock was appointed Vice President, Administration, General Counsel and Secretary. Effective August 2, 2017, Ms. Gonzalez was appointed Chief Financial Officer and Principal Financial Officer.

(8) Mr. Marcoot was hired as President, Nuclear Services effective January 5, 2015 and was later appointed President of Global Power Services. He resigned from all positions with the Company effective July 11, 2016.

(9) Ms. Jolly resigned from her position as Chief Human Resources Officer effective May 2, 2016.

2016 Grants of Plan Based Awards

The following table presents information related to STI and equity awards granted to our named executive officers in 2016.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Fair Value
of Stock and Option Awards(4)

 

 

 

Estimated Future Payouts
Under Non‑Equity Incentive Plan Awards(1)

Estimated Future Payouts
Under Equity Incentive Plan
Awards(2)

 

 

 

 

 

 

 

Name

 

 

 

 

 

 

Grant Date

Threshold

($)

Target

($)

Maximum

($)

Threshold

(#)

Target

(#)

Maximum

(#)

All Other
Stock Awards:
Number of
Shares of
Stock or Units(3)

(#)

 


Grant Date
Fair Value
of Stock and Option Awards(4)

($)

Mr. Cryan

Short‑Term Incentive Plan

N/A

165,570

551,901

1,103,802

 

 

 

 

 

Long-Term Incentive

4/1/2016

 

 

 

 

 

 

100,000

162,000

Long-Term Incentive

8/5/2016

 

 

 

 

86,864

 

 

382,202

Long-Term Incentive

8/5/2016

 

 

 

213,000

213,000

 

832,830

Mr. Howsman

Short‑Term Incentive Plan

N/A

42,281

140,938

281,875

 

 

 

 

 

Long-Term Incentive

8/5/2016

 

 

 

 

5,646

 

 

24,842

Long-Term Incentive

8/5/2016

 

 

 

14,000

14,000

 

54,740

Mr. Pagliara

Short‑Term Incentive Plan

N/A

76,466

254,888

509,776

 

 

 

 

 

Long-Term Incentive

8/5/2016

 

 

 

 

29,454

 

 

129,598

Long-Term Incentive

8/5/2016

 

 

 

73,000

73,000

 

285,430

Modification(5)

8/10/2016

 

 

 

 

 

 

7,333

30,065

Mr. Hol mes

Short‑Term Incentive Plan

N/A

78,951

263,169

526,338

 

 

 

 

 

Long-Term Incentive

8/5/2016

 

 

 

 

34,661

 

 

152,508

Long-Term Incentive

8/5/2016

 

 

 

85,000

85,000

 

332,350

Mr. Marcoot

Ms. Jolly

N/A

$17,097

$56,990

$113,979

N/A

 

 

 

 

 

 

(1) These columns show the dollar value of the potential payout to each current named executive officer for 2016 under our STI plan at threshold, target and maximum levels. Amounts actually earned during 2017 for 2016 performance under the STI plan are included in the “Non-Equity Incentive Plan Compensation” column of the Summary Compensation Table above in “—2016 Summary Compensation Table.” Mr. Marcoot did not participate in the STI plan for 2016.

 

(2) These columns show the number of units that could be paid to each named executive officer under our performance-based RSUs granted in 2016. The performance-based RSUs granted under our LTI plan generally vest in two equal installments on March 30, 2017 and March 30, 2018, provided that the applicable performance goal has been satisfied by each such date (and, if not, through the date the applicable performance goal is subsequently achieved, which must occur within five years after the date of grant). The applicable performance goal will be satisfied if the Company achieves a per share price greater than or equal to $5.50 for any period of 30 consecutive trading days during the five-year period ending on the fifth anniversary of the date of grant. If earned, the performance-based RSUs will be paid in shares.

 

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(3) This column shows the number of time-based RSUs granted to each named executive officer in 2016. The time-based RSUs granted under the LTI plan generally vest on March 30, 2018.

 

(4) These amounts reflect the aggregate grant date fair value of the equity awards computed in accordance with FASB ASC Topic 718. For a discussion of the assumptions we made in valuing the stock awards, see “Note 3—Summary of Significant Accounting Policies—Stock-Based Compensation Expense” to our Consolidated Financial Statements.

 

(5) This row reflects the incremental fair value, determined in accordance with FASB ASC Topic 718, attributable to the conversion of the performance-based RSUs for the 2014-2016 performance period into time-based RSUs, as described more fully in “—Section 2: Elements of Total Direct Compensation—Long-Term Incentive Compensation—Adjustment to 2014 Long-Term Incentives” above.

 

2016 Outstanding Equity Awards at Fiscal Year End

The following table sets forth information regarding unvested equity awards held by each of our named executive officers as of December 31, 2016.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Option Awards

Stock Awards

Name

Number of

Securities

Underlying

Unexercised

Options

(#)

Exercisable(1)

Number of

Securities

Underlying

Unexercised

Options

(#)

Unexercisable

Option

Exercise

Price

($)

Option

Expiration

Date

Number of
Shares or Units
That Have Not
Vested(2)(3)
(#)

Market Value of
Shares or Units
That Have Not
Vested(4)
($)

Equity Incentive
Plan Awards: Number of
Unearned
Shares or Units
That Have Not
Vested(5)

(#)

Equity Incentive
Plan Awards: Market or
Payout Value of
Unearned
Shares or Units
That Have Not
Vested(4)

($)

Terence J. Cryan

122,000

13.85

3/23/2020

111,864

527,998

213,000

1,005,360

Timothy M. Howsman

22,646

106,889

14,000

66,080

Tracy D. Pagliara

74,126

349,875

73,000

344,560

Craig E. Holmes

87,994

415,332

85,000

401,200

Ross Marcoot

Keri Jolly

 

(1) This column reflects the option to purchase 122,000 shares granted to Mr. Cryan on March 23, 2015 as part of his Letter Agreement (32,000 option shares of were fully vested on the date of grant and the remaining 90,000 option shares vested in monthly installments from June 2015 through February 2016).

(2) This column reflects the sum of unvested time-based RSUs held by each named executive officer as of December 31, 2016.

(3) The following table shows the vesting schedules for the unvested time-based RSUs outstanding as of December 31, 2016.

Name

Mar. 1,

Mar. 31,

Jun. 1,

Sept. 30,

Dec 15,,

Dec. 31,

Mar. 31,

2017

2017

2017

2017

2017

2017

2018

Terence J. Cryan

12,500

12,500

86,864

Timothy M. Howsman

1,000

15,000

6,646

Tracy D. Pagliara

6,781

25,000

7,333

 

35,012

Craig E. Holmes

26,667

61,327

 

(4) The market value is based on the closing market price of our common stock on the last trading day of 2016 ($4.72).

(5)  This column reflects the unvested 2016 performance-based RSUs held by each named executive officer as of December 31, 2016, which generally vest in two equal installments on March 30, 2017 and March 30, 2018, provided that the applicable performance goal has been satisfied by each such date (and, if not, through the date the applicable performance goal is subsequently achieved, which must occur within five years after the date of grant).

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2016 Stock Vested

The following table sets forth certain information concerning the vesting of equity awards held by our named executive officers during 2016.

 

 

 

 

Stock Awards

Name

Number of Shares
Acquired on Vesting
(#)

Value Realized
on Vesting(1)
($)

Terence J. Cryan

75,000

231,250

Timothy M. Howsman

18,543

79,217

Tracy D. Pagliara

43,151

150,410

Craig E. Holmes

26,667

80,001

Ross Marcoot

22,269

64,410

Keri Jolly

17,580

42,095

 

(1) Based on the closing price of the common stock on the applicable vesting date.

Pension Benefits

We do not sponsor or maintain any pension plans for our named executive officers.

Non-Qualified Deferred Compensation

We have not adopted any non-qualified deferred contribution plans or other deferred compensation plans.

Estimated Payments Upon Termination or Related to a Change in Control

The table below reflects the amount of incremental compensation to which each current named executive officer would have been entitled as a consequence of certain terminations or in connection with a change in control. The amounts shown in the table below assume that such termination or change in control was effective as of December 31, 2016 and that the price of our common stock upon which certain of the calculations are made was the closing price of $4.72 per share on the last trading day of 2016. The actual amounts to be paid out upon termination of employment or a change in control can only be determined at the time of the event. None of the payments set forth below would be grossed up for taxes. The estimated payments upon termination and change in control are as follows:

 

 

 

 

 

 

 

 

 

 

Event(1)

Terence J.

Cryan

Timothy M.

Howsman

Tracy D.

Pagliara

Craig E.
Holmes

Disability(2)

 

 

 

 

Annual Bonus

$ 259,223  

$125,000

$ 119,719  

$123,608

Disability Benefit

$185,975

$ 140,938

$126,427

$ 202,438  

Accelerated Vesting of Restricted Share Units

$159,465

$54,535

$166,550

$198,500

Total:

$604,663

$320,473

$412,696

$524,546

Death(3)

 

 

 

 

Annual Bonus

$ 259,223  

$125,000

$119,719

$123,608

Accelerated Vesting of Restricted Share Units

$159,465

$54,535

$166,550

$198,500

Total:

$418,688

$179,535

$286,269

$322,108

Termination Without Cause(4)

 

 

 

 

Salary Continuation

$1,034,815

$140,938

$392,135

$404,875

Annual Bonus

$259,223

$125,000

$119,719

$ 123,608  

Accelerated Vesting of Restricted Share Units

$159,465

$54,535

$166,550

$198,500

Total:

$1,453,503

$320,473

$678,404

$726,983

Termination for Good Reason(4)

 

 

 

 

Salary Continuation

$1,034,815

$140,938

$392,135

$404,875

Annual Bonus

$ 259,223

 $

$ 119,719  

$ 123,608  

Accelerated Vesting of Restricted Share Units

$159,465

$54,535

$166,550

$198,500

Total:

$1,453,503

$195,473

$678,404

$726,983

Change in Control (No Termination)(5)

 

 

 

 

Accelerated Vesting of Restricted Share Units

$40,380

Total:

$40,380

Termination Following a Change in Control(6)

 

 

 

 

Salary Continuation

$1,379,753

$140,938

$392,135

$404,875

Annual Bonus

$551,901

$125,000

 

 

Accelerated Vesting of Restricted Share Units

$1,533,358

$172,969

$654,055

$816,532

Total:

$3,465,012

$438,907

$1,046,190

$1,221,407

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(1) No named executive officer would have been entitled to any severance payments if we terminated him/her for cause or he/she terminated his/her employment with us without good reason on December 31, 2016.

(2) If terminated due to disability on December 31, 2016:

·

Each applicable named executive officer would have been entitled to receive a pro-rated annual incentive based on actual performance for the year of termination. The amount of the pro-rated annual incentive shown in the table assumes a December 31, 2016 termination and, therefore, is equal to 100% of the 2016 annual incentive that would have been payable had the executive remained employed through the annual incentive payment date in 2017.

·

Each of Mr. Cryan and Mr. Pagliara would have been entitled to receive 100% of his base salary for six months, which is comprised of the 60% salary continuation benefit provided under the Company-sponsored short-term disability insurance program and the 40% supplemental disability benefit provided under his employment agreement.

·

Each of Mr. Howsman and Mr. Holmes would have been entitled to receive an amount equal to 50% of his base salary for six months.

·

See below for the treatment of RSUs.

(3) Upon termination of employment by reason of death on December 31, 2016, a current named executive officer’s personal representative would have been entitled to the same pro-rated annual incentive to which the named executive officer would have been entitled upon termination by reason of disability (if any), other than the salary continuation. See below for the treatment of RSUs.

(4) Upon termination of the current named executive officer by us without cause or termination by the executive for good reason (if applicable), in either case on December 31, 2016:

·

Mr. Cryan would have been entitled to receive (i) salary continuation for 18 months, (ii) any unpaid annual incentive for the prior fiscal year and (iii) a pro-rated annual incentive based on actual performance for the year of termination.

·

Mr. Howsman would have been entitled to receive (i) salary continuation for six months and (ii) a pro-rated annual incentive based on actual performance for the year of termination.

·

Mr. Pagliara and Mr. Holmes would have been entitled to receive (i) salary continuation for one year and (ii) a pro-rated annual incentive based on actual performance for the year of termination.

·

See below for the treatment of RSUs.

·

The amounts shown in the table assume a December 31, 2016 termination and, therefore, include 100% of the annual incentive that would have been payable had the executive remained employed through the annual incentive payment date in 2017. The current named executive officers generally are subject to restrictive covenants, such as confidentiality, non-solicitation and non-compete provisions.

(5) See below for the treatment of RSUs upon a change in control on December 31, 2016.

(6) For Mr. Cryan only, upon a termination by us without cause or a resignation for good reason, in either case within 90 days prior to or within two years following a change in control, he would have been entitled to receive a lump sum equal to two times his annual base salary along with a target STI opportunity, without pro-ration (in lieu of the 18 months of salary continuation otherwise payable upon such a termination).

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Treatment of RSUs

We have granted RSU awards to our executive officers pursuant to our 2011 Equity Incentive Plan and our 2015 Equity Incentive Plan. The termination provisions of the award agreements are described below.

·

The RSU agreements granted pursuant to the 2011 and 2015 Equity Incentive Plans provide that:

o

Upon a termination by the Company without “cause” (as defined in the award agreement), by the executive officer for “good reason” (as defined in the award agreement) or due to the executive officer’s death or “disability” (as defined in the award agreement), each executive officer shall be entitled to pro-rated vesting of RSUs.

o

For awards granted under the 2011 Equity Incentive Plan, upon the consummation of a “change of control” (as defined in that equity plan), all unvested time-based RSUs would become fully vested and the “target” number (as defined in the award agreement) of performance-based RSUs would become fully vested.

o

For awards granted under the 2015 Equity Incentive Plan, upon the consummation of a “change of control” (as defined in that equity plan):

·

To the extent outstanding awards are assumed, converted or replaced by the resulting entity: (i) any performance-based outstanding awards shall be converted by the resulting entity as if “target” performance had been achieved as of the date of the change in control and shall continue to vest during the remaining performance period or other period of required service; and (ii) all other awards shall continue to vest during the applicable vesting period, if any. If a participant incurs a termination other than for cause, death or disability or for good reason during the two-year period commencing on the date of the change in control, then upon such termination (A) all outstanding awards that may be exercised shall become fully exercisable and shall remain exercisable for the full duration of their term, (B) all restrictions with respect to outstanding awards shall lapse, with any performance objectives deemed to be satisfied at the “target” level, and (C) all outstanding awards shall become fully vested.

·

To the extent outstanding awards are not assumed, converted or replaced by the resulting entity: (i) all outstanding awards that may be exercised shall become fully exercisable and shall remain exercisable for the full duration of their term; (ii) all restrictions with respect to outstanding awards shall lapse, with any performance objectives with respect to outstanding awards deemed to be satisfied at the “target” level; and (iii) all outstanding awards shall become fully vested.

·

Certain retention awards of RSUs provide for full vesting of the award upon a termination by the Company without “cause” (as defined in the award agreement), by the executive officer for “good reason” (as defined in the award agreement), due to the executive officer’s death or “disability” (as defined in the award agreement) or upon a “change in control” (as defined in our 2015 Equity Incentive Plan).

Definitions Under Mr. Cryan’s Employment Agreement 

“Cause” means: (i) continued failure to perform duties or disregard of the directives of the Board; (ii) willful material misrepresentation; (iii) commission of any act of fraud, misappropriation or embezzlement; (iv) conviction, guilty plea or plea of nolo contendere for any crime involving dishonesty or for any felony; (v) a material breach of fiduciary duties of loyalty or care or a material violation of the Company’s Code of Business Conduct and Ethics or any other Company policy; (vi) engaging in illegal conduct, gross misconduct, gross insubordination or gross negligence that is materially and demonstrably injurious to the Company’s business or financial condition; or (vii) a material breach of his representations under the employment agreement or his restrictive covenants.

“Good Reason” means: (i) a material reduction in title, duties, responsibilities or reporting relationship; (ii) a material reduction in base salary (other than certain across the board reductions) or target annual incentive opportunity; (iii) failure to nominate Mr. Cryan for re-election as a member of the Board; or (iv) any other material breach under the employment agreement.

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Definitions Under Mr. Pagliara’s Employment Agreement 

“Cause” generally means: (i) consistent failure to perform duties and responsibilities as specified; (ii) a material breach of confidentiality, noncompetition or nonsolicitation covenants; (iii) commission of a felony or any crime involving theft, dishonesty or moral turpitude; (iv) commission of one or more acts or omissions that are willful and deliberate acts intended to harm or injure our business, operations, financial condition or reputation; (v) disregard of the directives of our Board of Directors or CEO; (vi) drunkenness or use of drugs that interferes with the performance of duties under the employment agreement; or (vii) any attempt to secure any personal profit in connection with our business without prior written approval by the Company.

“Good Reason” means: (i) a material diminution of duties, responsibilities or authority; or (ii) a material breach of our obligations under the employment agreement, in each case subject to notice requirements and cure provisions.

Definitions under Mr. Holmes’ Offer Letter

“Good Reason” means: (i) a material reduction in title, duties, responsibilities or reporting relationship; (ii) a material reduction in annual base salary (other than in connection with an across the board salary reduction which applies in a comparable manner to other senior executives) or “target” STI opportunity; or (iii) any other material breach of the offer letter by the Company.

Definitions Under the Executive Severance Plan

“Cause” means: (i) continued failure to perform duties or disregard of the directives of the Board or his or her supervisor; (ii) willful material misrepresentation; (iii) commission of any act of fraud, misappropriation or embezzlement; (iv) conviction, guilty plea or plea of nolo contendere for any crime involving dishonesty or for any felony; (v) a material breach of fiduciary duties of loyalty or care or a material violation of the Company’s Code of Business Conduct and Ethics or any other Company policy; (vi) the engaging in illegal conduct, gross misconduct, gross insubordination or gross negligence that is materially and demonstrably injurious to the Company’s business or financial condition; or (vii) a material breach of his or her representations under his or her employment agreement or his or her restrictive covenants.

“Good Reason” generally means a reduction by the Company of participant’s base salary by more than 10 percent (10%) (other than an across the board reduction which applies in a comparable manner to other senior executives of the Company).

Change in Control

Under the 2011 Equity Incentive Plan, a “change in control” generally means any of the following: (i) the acquisition of 50% or more of the voting stock of the Company, other than an acquisition by certain related parties or an acquisition pursuant to a transaction the primary purpose of which is to effect an equity financing of the Company; (ii) turnover of a majority of the incumbent members of our Board of Directors (other than the election of certain new directors whose election or nomination was approved by a majority of the incumbent Board of Directors); (iii) a reorganization, merger or consolidation, unless our stockholders immediately prior to the transaction own more than 50% of the common stock of the resulting corporation as a result of their prior ownership of the common stock of the Company; (iv) a complete liquidation or dissolution of the Company; or (v) the sale or other disposition of all or substantially all of the Company’s assets (other than a sale or disposition to a subsidiary).

Under the 2015 Equity Incentive Plan, a “change in control” generally means any of the following: (i) the acquisition of 50% or more of the common stock of the Company or the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors, other than an acquisition directly from the Company, any acquisition by the Company, any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or its affiliated companies or any acquisition by any corporation pursuant to a transaction which complies with the aforementioned; (ii) turnover of a majority of the incumbent members of our Board of Directors (other than the election of certain new directors whose election or nomination was approved by a majority of the incumbent Board of Directors); (iii) consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company, unless following such combination (x) our stockholders immediately prior to the transaction own more than 50% of the common stock or outstanding voting shares, (y) no person beneficially owns, directly or indirectly, 50% or more of the outstanding shares of common stock resulting from such combination or the combined voting power of the then-outstanding securities, except to the extent such ownership existed prior to the

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combination, and (z) at least a majority of the members of the board of directors of the resulting corporation were members of the incumbent board; or (iv) approval by the stockholders of a complete liquidation or dissolution of the Company.

Separation Agreements

Effective May 2, 2016, we entered into a separation agreement with Ms. Jolly. Under the terms of her separation agreement, Ms. Jolly was entitled to receive the benefits due under the ESP: (i) salary continuation of one year and (ii) a pro-rated annual incentive for the year of termination based on actual performance results for the entire year. She was also entitled to reimbursement of up to $2,500 in attorneys’ fees incurred by her in connection with the separation agreement. The separation agreement also included a standard non-disparagement covenant, as well as a release of claims against the Company and any affiliates, and required Ms. Jolly to reaffirm the restrictive covenants in her equity award agreements. Finally, under the terms of her equity award agreements, Ms. Jolly was entitled to pro-rata vesting of her outstanding equity awards (with performance-based awards payable based on actual performance results for the entire performance period).

Effective July 11, 2016, we entered into a separation agreement with Mr. Marcoot. Under the terms of his separation agreement, Mr. Marcoot was entitled to receive the benefits due under his letter agreement, which equaled base salary continuation for one year. The separation agreement also included a standard non-disparagement covenant, as well as a release of claims against the Company and any affiliates, and required Mr. Marcoot to reaffirm the restrictive covenants in his equity award agreements. Finally, under the terms of his equity award agreements, Mr. Marcoot was entitled to pro-rata vesting of his outstanding equity awards (with performance-based awards payable based on actual performance results for the entire performance period).

Following is a summary of the severance benefits received or payable to Ms. Jolly and Mr. Marcoot.

 

 

 

Description of Payment/Benefit

Ms. Jolly

Mr. Marcoot

Salary Continuation

$202,695

$136,601

2016 STI

$26,768

Time-based RSU Vesting

$19,539

$11,313

Performance-based RSU Vesting

Attorney Fees

$2,500

Total

$251,502

$147,914

 

2016 Director Compensation

Except as noted below, the following table provides information on the compensation awarded to, earned by or paid to each person who served as a non-employee director during 2016.

 

 

 

 

 

 

 

 

 

 

 

 

Name

Fees Earned or Paid in Cash
($)

Stock Awards
($)(1)

Total
($)

Carl Bartoli

68,625

 

68,625

David A. Brown

41,578

 

41,578

David L. Keller

54,125

 

54,125

Linda Goodspeed

43,016

 

43,016

Charles Macaluso

116,063

 

116,063

Robert B. Mills

74,625

 

74,625

Nelson Obus

29,772

 

29,772

Michael E. Rescoe

71,000

 

71,000

Michael E. Salvati

71,500

 

71,500

Gary J. Taylor

57,125

 

57,125

 

(1) The non-employee directors did not receive a grant of restricted shares in 2016; however, in July 2017, the Company informed non-employee directors that, at the next annual shareholder meeting, it planned to grant awards to the such directors as compensation for their service as a director in 2016 and 2017. The Board expects to grant restricted shares with a value of $80,000 for service in 2016 (pro-rated for a partial year of service, if any) and $80,000 for service in 2017 to continuing non-employee directors. Non-employee directors whose term expires at the next annual shareholder meeting are expected to receive $20,000 for service in 2016 and $20,000 for service in 2017 (pro-rated for service during the year), in addition to accelerated vesting of any outstanding restricted shares and a cash payment equal to any excess of the award value of such shares over the value of the accelerated vesting.

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The total number of unvested restricted shares held by each non-employee director as of December 31, 2016 was as follows:

 

 

Name

Unvested Restricted Shares (#)

Carl Bartoli

7,882

David A. Brown

David L. Keller

Linda Goodspeed

Charles Macaluso

7,882

Robert B. Mills

Nelson Obus

Michael E. Rescoe

4,545

Michael E. Salvati

7,882

Gary J. Taylor

 

The Board compensation is determined by the Nominating and Corporate Governance Committee subject to approval by the entire Board of Directors. The objectives for our non-employee director compensation program are to attract highly qualified individuals to serve on the Board of Directors and align directors’ interests with the interests of our stockholders. The Nominating and Corporate Governance Committee reviews the program periodically to ensure that it continues to meet these objectives. To determine whether the director compensation program is competitive, the Nominating and Corporate Governance Committee considers general market information on program design and the advice of the Compensation Committee’s independent compensation consultant. In recommending director compensation levels, the Nominating and Corporate Governance Committee also considers the significant amount of time that directors expend in fulfilling their duties to the Company, as well as the skill level required by the Company of members of the Board of Directors. The Nominating and Corporate Governance Committee recommends any change it considers appropriate to the full Board of Directors for its review and approval and includes the relevant information and data for the Board of Directors to use in its considerations.

Directors who are employed by our Company or any of our subsidiaries do not receive compensation for serving as directors. As of December 31, 2016, directors who are not employees of our Company or any of our subsidiaries were entitled to receive an annual retainer as follows:

·

$47,500 for each non-employee director;

·

$10,000 for membership in each committee;

·

$50,000 for the Board of Directors Chairperson;

·

$20,000 for the Audit Committee Chairperson;

·

$13,750 for the Compensation Committee Chairperson; and

·

$13,750 for the Nominating and Corporate Governance Committee Chairperson.

In addition, directors were entitled to receive:

·

a meeting fee of $1,500 for each Board of Directors meeting attended in person;

·

a meeting fee of $1,000 for each Board of Directors meeting attended telephonically;

·

a meeting fee of $1,000 for each committee meeting attended in person or telephonically;

·

a meeting fee of $1,000 for each Audit Committee meeting attended in person or telephonically, regardless of whether such director is a member of the Audit Committee; and

·

a meeting fee of $1,500 for each Board of Directors or committee meeting attended in person outside of normal Board and committee meetings.

Beginning January 1, 2017, the Board modified the cash portion of the director compensation program to increase the annual retainer from $47,500 to $60,000, eliminate the per-meeting and committee membership fees for all directors and

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decrease the compensation for service as chair of the Nominating and Corporate Governance Committee from $13,750 to $10,000.

We offer each director an annual allowance for continuing education, the amount of which is set by the Board of Directors from time to time. For 2016, the amount was $10,000; however, all of the directors elected to take advantage of free educational resources rather than using the allowance. We also reimburse non-employee directors for out of pocket expenses incurred in connection with attending Board and committee meetings.

The Board recognizes that ownership by the non-employee directors of the Company’s common stock will align their interests with the interests of our stockholders. As a result, each non-employee director is required to own the lesser of (i) shares with a value of three times his or her annual cash retainer or (ii) 8,000 shares. The target date for the existing directors to meet these stock ownership guidelines is January 1, 2017, except any new directors or directors appointed after January 1, 2011, for whom the target date is five years from the date of his or her appointment. For purposes of these guidelines, the director will be deemed to “own” the Company’s shares that are beneficially owned by such person, including equity awards that will payout within 60 days of the applicable measuring date. As of September 5, 2017, each non-employee director who served in 2016 who was required to meet the ownership requirements met or exceeded the minimum ownership requirement.

Compensation Committee Interlocks and Insider Participation

Messrs. Bartoli, Macaluso and Rescoe served as members of the Compensation Committee until June 27, 2016, upon which date Ms. Goodspeed, Mr. Taylor and Mr. Brown were instead appointed to the Compensation Committee. During their time as members of the Compensation Committee in 2016, none of aforementioned directors was an officer or employee of the Company. None of our executive officers serve as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as a member of our Board of Directors or Compensation Committee.

Compensation Committee Report

The Compensation Committee, comprised of independent directors, reviewed and discussed the above Compensation Discussion and Analysis with the Company’s management. Based on that review and discussion, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in this Form 10-K.

Compensation Committee:

Linda Goodspeed (Chair)

David A.B. Brown

Gary J. Taylor

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Item 12.  Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

Security Ownership of Certain Beneficial Owners and Management

Except as indicated otherwise, the following table sets forth certain information, as of September 5, 2017, regarding the beneficial ownership of our common stock by holders of greater than five percent of our common stock that have filed ownership reports with the SEC, each of our current directors, each of our named executive officers named in the Summary Compensation Table, and all of our current directors and named executive officers as a group. Except as otherwise indicated, addresses are c/o Global Power Equipment Group Inc., 400 East Las Colinas Boulevard, Suite 400, Irving, Texas 75039.

 

 

 

 

 

 

 

 

 

 

 

 

Common Stock Beneficially Owned

Name of Beneficial Owner

  

Number of Shares (#)

  

Percentage of Class (%)(1)

Greater than 5% Holders:

 

 

 

 

 

Nelson Obus(2)

 

3,167,718

 

17.82

%

Emancipation Management LLC (3)

 

1,729,858

 

9.73

%

Tontine Asset Associates, LLC(4)

 

1,381,464

 

7.77

%

 

 

 

 

 

 

Directors and Named Executive Officers(5):

 

 

 

 

 

Carl Bartoli

 

39,474

 

*

 

David A. B. Brown

 

 —

 

*

 

Linda A. Goodspeed

 

 —

 

*

 

David L. Keller

 

69,601

 

*

 

Charles Macaluso

 

40,474

 

*

 

Robert B. Mills

 

 —

 

*

 

Michael E. Rescoe

 

6,061

 

*

 

Michael E. Salvati

 

25,921

 

*

 

Gary J. Taylor

 

 —

 

*

 

Nelson Obus(2)

 

3,167,718

 

17.82

%

Craig E. Holmes (6)

 

38,305

 

*

 

Tracy D. Pagliara(7)

 

108,274

 

*

 

Terence J. Cryan(8)

 

245,240

 

1.38

%

Timothy M. Howsman(8)

 

21,051

 

*

 

Ross Marcoot(8)

 

14,746

 

*

 

Keri Jolly(8)

 

13,359

 

*

 

Directors and Named Executive Officers as a Group (14 persons)(9)

 

3,762,119

 

21.16

%


* Less than 1%.

(1) As reported by such persons as of September 5, 2017 and including, in the case of our named executive officers, RSUs that vest within 60 days of September 5, 2017, which are treated for purposes of this table on an as‑converted basis. Percentages are based on 17,778,885 shares of our common stock outstanding, except as indicated otherwise and except where the person has the right to acquire shares within 60 days of the record date, which increases the number of shares beneficially owned by such person and the number of shares outstanding for determining that person’s percentage of ownership. We have determined beneficial ownership in accordance with the rules of the SEC. Unless otherwise indicated in the footnotes to this table, each stockholder named in the table has sole voting and investment power with respect to all shares shown as beneficially owned by that stockholder. We have omitted percentages of less than 1% from the table.

(2) The shares listed were reported on a Schedule 13D/A, filed with the SEC on August 23, 2017, with respect to holdings as of August 17, 2017. They include: (i) 963,454 shares of common stock (the “Partner Shares”) held by Wynnefield Partners Small Cap Value, L.P., of which Wynnefield Capital Management, LLC (“WCM”) is the sole general partner and has the sole power to direct the voting and disposition of these shares and, as a result, may be deemed to beneficially hold the Partner Shares; (ii) 1,573,953 shares of common stock (the “Partner I Shares”) held by Wynnefield Partners Small Cap Value, L.P. I, of which WCM is the sole general partner and has the sole power to direct the voting and disposition of these shares and, as a result, may be deemed to beneficially hold the Partner I Shares; (iii) 530,306 shares of common stock (the “Offshore Shares”) held by Wynnefield Small Cap Value Offshore Fund, Ltd., of which Wynnefield Capital, Inc. (“WCI”) is the sole investment manager and has the sole

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power to direct the voting and disposition of these shares and, as a result, may be deemed to beneficially hold the Offshore Shares; and (iv) 100,005 shares of common stock (the “Plan Shares”) held by Wynnefield Capital, Inc. Profit Sharing & Money Purchase Plan (the “Plan”), an employee profit sharing plan. Mr. Nelson Obus and Mr. Joshua Landes are the co‑managing members of WCM and in such role, share the power to direct the voting and disposition of the shares of common stock WCM may be deemed to beneficially hold and, as a result, may be deemed to beneficially hold the Partner Shares and the Partner I Shares. Mr. Obus and Mr. Landes are executive officers of WCI and in such role, share the power to direct the voting and disposition of the Offshore Shares and, as a result, may be deemed to beneficially hold the Offshore Shares. Mr. Obus and Mr. Landes are co‑trustees of the Plan and in such role, share the power to direct the voting and disposition of the Plan Shares and, as a result, may be deemed to beneficially hold the Plan Shares. The principal business address of the reporting persons is 450 Seventh Avenue, Suite 509, New York, NY 10123.

(3) The shares listed were reported on a Schedule 13G/A, filed with the SEC on August 9, 2017, with respect to holdings of shares of common stock held by accounts managed by Circle N Advisors, LLC as of July, 31, 2017. Emancipation Management LLC holds shared dispositive power of the shares with Circle N Advisors, LLC, which Emancipation Management LLC owns, and Mr. Charles Frumberg, the managing member of Emancipation Management LLC. The principal business address of Emancipation Management LLC and Mr. Frumberg is 825 Third Avenue, New York, NY 10022. The principal business address of Circle N Advisors, LLC is 200 Westgate Business Center Dr., Fishkill, NY 12524.

(4) The shares listed were reported on a Schedule 13G/A filed with the SEC on February 10, 2017, with respect to holdings as of December 31, 2016. Tontine Asset Associates, LLC holds shared voting and dispositive power of the shares with Mr. Jeffrey L. Gendell, each of which may be deemed to beneficially hold the shares. The principal business address of each of the reporting persons is 1 Sound Shore Drive, Suite 304, Greenwich, CT 06830.

(5) No non-employee director has a right to obtain beneficial ownership of additional shares within 60 days of September 5, 2017. Shares held by non-employee directors include restricted shares awarded.

(6) Mr. Holmes has no shares underlying RSUs which may be acquired upon vesting within 60 days of September 5, 2017.

(7) Mr. Pagliara has 25,000 shares underlying RSUs which may be acquired upon vesting within 60 days of September 5, 2017.

(8) The shares reported are based on the Company’s records as of the termination date of such individual’s employment and do not take into account any transactions that may have occurred after such date.

(9) Represents beneficial ownership of our common stock held by our current directors and executive officers as a group as of September 5, 2017, including any RSUs exercisable within 60 days of September 5, 2017. Omits former executive officers that are no longer employed by the Company.

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Securities Authorized For Issuance Under Equity Compensation Plans

The following table provides information as of December 31, 2016 about the Company’s equity compensation plans under which shares of the Company’s common stock are authorized for issuance.

 

 

 

 

 

 

 

 

 

 

Plan Category

Number of securities to be issued upon exercise of outstanding options, warrants and rights
(a)(1)

 

Weighted-average exercise price of outstanding options, warrants and rights
(b)(2)

Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))(3)

Equity compensation plans approved by security holders

1,109,869

$

13.85

28,362

Equity compensation plans not approved by security holders

347,553

 

— 

— 

Total

1,457,422

$

13.85

28,362

 

(1)

Consists of outstanding stock options, time-based RSUs and performance-based RSUs granted at target under the 2011 Equity Incentive Plan and 2015 Equity Incentive Plan at December 31, 2016, including 122,000 unexercised options for Mr. Cryan.

(2)

Represents the strike price for Mr. Cryan’s 122,000 unexercised stock options.

(3)

The amount of available shares under the 2015 Equity Incentive Plan as of December 31, 2016. No additional shares may be granted under the 2011 Equity Incentive Plan.

(4)

Represents the number of inducement grants made prior to December 31, 2016 in the form of time-based RSUs and performance-based RSUs. Inducement grants are made outside of an equity incentive plan and are vested against the Company’s treasury reserve.

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Item 13.  Certain Relationships and Related Transactions and Director Independence.

Approval of Related Party Transactions

The Board has adopted a formal written policy governing the review and approval of related person transactions, which is posted under the heading “Corporate Governance” of the Investor Relations section of our website at http://www.globalpower.com/. For purposes of this policy, the terms “related person” and “transaction” are as defined in Item 404(a) of Regulation S‑K. The policy provides that each director, director nominee and executive officer shall promptly notify the Corporate Secretary of any transaction involving the Company and a related person. Such transaction will be presented to and reviewed by the Audit Committee for approval, ratification or such other action as may be appropriate. On an annual basis, the Audit Committee reviews any previously approved related party transaction that is continuing, as well as any related party transaction disclosed in response to our annual directors’ and officers’ questionnaire. The policy itself is annually reviewed and was last reviewed in December 2016.

Director Independence

For a discussion of our director independence, see “Part III—Item 10. Directors, Executive Officers and Corporate Governance—Director Independence.”

 

Item 14.  Principal Accountant Fees and Services.

Audit and Non‑Audit Fees

The following table sets forth the estimated or actual fees paid or accrued by us for professional services rendered by Hein related to the audit of our consolidated financial statements for the years ended December 31, 2016 and 2015:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

($ in thousands)

  

2016(1)

  

  

2015(1)

Audit Fees

 

$

1,188,155

 

 

$

1,594,838

Audit-Related Fees(2)

 

 

— 

 

 

 

— 

Tax Fees

 

 

— 

 

 

 

— 

All Other Fees

 

 

— 

 

 

 

— 

Total

 

$

1,188,155

 

 

$

1,594,838


(1) Audit and Non‑Audit Fees paid to Hein were compensation for its audit of the Company’s consolidated financial statements for the years ended December 31, 2016 and December 31, 2015, and quarterly periods, including internal controls, including compensation for its audit of the Company’s restated balance sheets as of December 31, 2015 and 2014 and consolidated statements of operations, consolidated statements of stockholders’ equity and consolidated statements of cash flow for each of our fiscal years ended December 31, 2015, 2014 and 2013.

(2) Audit‑related fees consisted of the aggregate fees, including expenses, billed for assurance and related services that are not reported under “Audit Fees.”

Audit Committee Pre‑Approval of Audit and Non‑Audit Services

The Audit Committee’s policy is to pre‑approve all audit and non‑audit services provided to the Company by its independent registered public accounting firm (except for items exempt from pre‑approval requirements under applicable laws and rules). All audit and non‑audit services included in the table above were pre‑approved by the Audit Committee.

When considered necessary, management prepares an estimate of fees for the service and submits the estimate to the Audit Committee for its review and pre‑approval. Any modifications to the estimates will be submitted to the Audit Committee for pre‑approval at the next regularly scheduled Audit Committee meeting. All fees paid to our independent registered public accounting firm during the periods covered by this report and through the date hereof were in accordance with this pre‑approval policy.

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Part IV

Item 15.  Exhibits and Financial Statement Schedules.

Documents filed as part of this Report:

Financial Statements: The following reports of independent accountants and our consolidated financial statements are set forth in the index beginning on page F-1:

·

Report of Independent Registered Public Accounting Firm

·

Consolidated Balance Sheets as of December 31, 2016 and 2015

·

Consolidated Statements of Operations for the years ended December 31, 2016, 2015 and 2014

·

Consolidated Statements of Changes in Stockholders’ Equity for the years ended December 31, 2016, 2015 and 2014

·

Consolidated Statements of Cash Flows for the years ended December 31, 2016, 2015 and 2014

·

Notes to Consolidated Financial Statements

The following financial statement schedule is contained on page F-46 in this Report.

·

Valuation and Qualifying Accounts and Reserves for the years ended December 31, 2016, 2015 and 2014

All other schedules are omitted because they are not applicable or the required information is shown in the consolidated financial statements or the notes thereto.

List of Exhibits

See Index to Exhibits on the pages below. We agree to furnish to the SEC, upon request, copies of any long-term debt instruments that authorize an amount of securities constituting 10% or less of the total assets of Global Power on a consolidated basis.

Item 16. Form 10-K Summary.

None.

 

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Exhibits:  The following are furnished as exhibits to this Form 10 K:

 

 

Exhibit

Description

2.1

Membership Interest Purchase and Sale Agreement, dated as of July 14, 2012, by and among Global Power, Koontz‑Wagner Holdings, LLC and, solely with respect to Sections 7.12(b)(2) and 7.12(c) thereof, High Street Capital III SBIC, L.P. (filed as Exhibit 10.3 to our Form 10‑Q filed with the Commission on August 9, 2012 and incorporated herein by reference).

3.1

Second Amended and Restated Certificate of Incorporation of Global Power (filed as Exhibit 3.1 to our Form 10 (Commission File No. 001‑16501) filed with the Commission on April 30, 2010 and incorporated herein by reference).

3.2

Certificate of Amendment, dated June 30, 2010, to Second Amended and Restated Certificate of Incorporation of Global Power (filed as Exhibit 3.2 to our Amendment No. 2 to Form 10 filed with the Commission on July 20, 2010 and incorporated herein by reference).

3.3

Third Amended and Restated By‑Laws of Global Power (filed as Exhibit 3.1 to our Form 10‑Q filed with the Commission on August 15, 2011 and incorporated herein by reference)/(File No. 001‑16501).

10.1

Employment Agreement, dated as of March 22, 2010, by and between Global Power and Tracy D. Pagliara (filed as Exhibit 10.22 to our Amendment No. 2 to Form 10 filed with the Commission on July 20, 2010 and incorporated herein by reference).*

10.2

Amended and Restated Global Power Incentive Compensation Plan (filed as Exhibit 10.1 to our Form 10‑Q filed with the Commission on May 16, 2011 and incorporated herein by reference)/(File No. 001‑16501).*

10.3

Global Power 2011 Equity Incentive Plan (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on May 24, 2011 and incorporated herein by reference)/(File No. 001‑16501).*

10.4

Credit Agreement, dated as of February 21, 2012 (the “New Credit Agreement”), by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.26 to our Form 10‑K filed with the Commission on March 14, 2012 and incorporated herein by reference).

10.5

First Amendment to the New Credit Agreement and First Amendment to the Security Agreement, dated as of April 25, 2012, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 10‑Q filed with the Commission on May 1, 2012 and incorporated herein by reference).

10.6

Second Amendment to the New Credit Agreement, dated as of July 19, 2012, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.4 to our Form 10‑Q filed with the Commission on August 9, 2012 and incorporated herein by reference).

10.7

Third Amendment and Limited Waiver to the New Credit Agreement and Second Amendment to the Security Agreement, dated as of March 4, 2013 and effective as of December 7, 2012, entered into by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, U.S. Bank National Association, and the other lenders from time to time party thereto (filed as Exhibit 10.29 to our Form 10‑K filed with the Commission on March 7, 2013 and incorporated herein by reference).

10.8

Fourth Amendment and Limited Waiver to the New Credit Agreement, dated as of December 22, 2014, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.34 to our Form 10‑K filed with the Commission on March 9, 2015 and incorporated herein by reference).

10.9

Fifth Amendment and Limited Waiver to the New Credit Agreement, dated as of May 28, 2015, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on June 2, 2015 and incorporated herein by reference).

10.10

Limited Waiver and Sixth Amendment to the New Credit Agreement, dated as of June 30, 2015, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on July 2, 2015 and incorporated herein by reference).

10.11

Limited Waiver and Seventh Amendment to the New Credit Agreement and Amendment to Other Loan Documents, dated as of August 31, 2015, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on September 1, 2015 and incorporated herein by reference).

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10.12

First Amendment to Limited Waiver and Seventh Amendment to the New Credit Agreement and Amendment to Other Loan Documents, dated as of December 11, 2015, by and among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on December 16, 2015 and incorporated herein by reference).

10.13

Second Amendment to Limited Waiver and Seventh Amendment to the New Credit Agreement and Amendment to Other Loan Documents, dated as of March 25, 2016, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto.♦

10.14

Third Amendment to Limited Waiver and Seventh Amendment to the New Credit Agreement and Amendment to Other Loan Documents, dated as of July 22, 2016, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on July 26, 2016 and incorporated herein by reference).

10.15

Ninth Amendment to the New Credit Agreement and Fourth Amendment to Limited Waiver Agreement, dated as of October 4, 2016, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on October 11, 2016 and incorporated herein by reference).

10.16

Tenth Amendment to the New Credit Agreement and Fifth Amendment to Limited Waiver Agreement, dated as of October 27, 2016, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on October 31, 2016 and incorporated herein by reference).

10.17

Eleventh Amendment to the New Credit Agreement and Sixth Amendment to Limited Waiver Agreement, dated as of November 30, 2016, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on December 6, 2016 and incorporated herein by reference).

10.18

Twelfth Amendment to the New Credit Agreement, dated as of December 23, 2016, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on February 27, 2017 and incorporated herein by reference).

10.19

Thirteenth Amendment to the New Credit Agreement and Seventh Amendment to Limited Waiver Agreement, dated as of January 30, 2017, by and among Global Power, certain of its subsidiaries, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various lending institutions party thereto (filed as Exhibit 10.2 to our Form 8‑K filed with the Commission on February 27, 2017 and incorporated herein by reference).

10.20

Fourteenth Amendment to Credit Agreement and Eighth Amendment to Limited Waiver Agreement, dated as of February 21, 2017, by and among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various financial institutions party thereto (filed as Exhibit 10.3 to our Form 8‑K filed with the Commission on February 27, 2017 and incorporated herein by reference).

10.21

Fifteenth Amendment to Credit Agreement and Ninth Amendment to Limited Waiver Agreement, dated as of March 3, 2017, by and among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various financial institutions party thereto as lenders (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on March 9, 2017 and incorporated herein by reference).

10.22

Sixteenth Amendment to Credit Agreement and Eleventh Amendment to Limited Waiver Agreement, dated as of May 11, 2017, by and among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various financial institutions party thereto as lenders (filed as Exhibit 10.1 to our Form 8-K filed with the Commission on May 15, 2017 and incorporated herein by reference).

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10.23

Seventeenth Amendment to Credit Agreement and Twelfth Amendment to Limited Waiver Agreement, dated as of May 31, 2017, by and among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various financial institutions party thereto as lenders (filed as Exhibit 10.1 to our Form 8-K filed with the Commission on June 1, 2017 and incorporated herein by reference).

10.24

Eighteenth Amendment to Credit Agreement, dated as of June 1, 2017, by and among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various financial institutions party thereto as lenders.♦

10.25

Nineteenth Amendment to Credit Agreement, dated as of June 9, 2017, by and among the Company, Wells Fargo Bank, National Association, as Administrative Agent, Swingline Lender and Issuing Lender, and the various financial institutions party thereto as lenders.♦

10.26

Election and Nomination Agreement by and among (i) Wynnefield Partners Small Cap Value, L.P., Wynnefield Partners Small Cap Value, L.P. I, Wynnefield Small Cap Value Offshore Fund, Ltd., Wynnefield Capital, Inc. Profit Sharing & Money Purchase Plan, Wynnefield Capital Management, LLC, and Wynnefield Capital, Inc. and (ii) Global Power, dated as of June 1, 2016 and effective May 25, 2016 (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on June 1, 2016 and incorporated herein by reference).

10.27

Form of Global Power Restricted Shares Award Agreement (filed as Exhibit 10.1 to our Form 10‑Q filed with the Commission on November 9, 2012 and incorporated herein by reference).*

10.28

Form of Global Power Restricted Share Unit Agreement (filed as Exhibit 10.27 to our Form 10-K filed with the Commission on March 14, 2012 and incorporated herein by reference).

10.29

Amendment to Attachment A of the Form of Global Power Restricted Shares Unit Agreement (filed as Exhibit 10.5 to our Form 10‑Q/A filed with the Commission on August 20, 2012 and incorporated herein by reference).*  

10.30

Global Power Short‑Term Incentive Plan (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on February 26, 2013 and incorporated herein by reference).*

10.31

Form of Global Power Restricted Shares Unit Agreement (filed as Exhibit 10.30 to our Form 10‑K filed with the Commission on March 7, 2013 and incorporated herein by reference).*

10.32

Lender Joinder Agreement, dated as of December 17, 2013, by and among Global Power, as the borrower, certain other subsidiaries of the borrower, Wells Fargo Bank, National Association, as Administrative Agent, and U.S. Bank, National Association, Branch Banking and Trust Company and JPMorgan Chase Bank, N.A., as lenders (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on December 17, 2013 and incorporated herein by reference).

10.33

Global Power Executive Severance Plan (filed as Exhibit 10.34 to our Form 10‑K filed with the Commission on March 17, 2014 and incorporated herein by reference).*

10.34

Letter Agreement, dated as of March 20, 2015, by and between Terence Cryan and Global Power (filed as Exhibit 10.2 to our Form 8‑K filed with the Commission on March 23, 2015 and incorporated herein by reference).*

10.35

Form of Nonqualified Stock Option Agreement, dated as of March 23, 2015, by and between Terence Cryan and Global Power (filed as Exhibit 10.3 to our Form 8‑K filed with the Commission on March 23, 2015 and incorporated herein by reference).*

10.36

Form of Restricted Share Unit Agreement (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on April 6, 2015 and incorporated herein by reference).*

10.37

2015 Equity Incentive Plan (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on May 14, 2015 and incorporated herein by reference).*

10.38

Employment Agreement, dated as of June 26, 2015, by and between Terence J. Cryan and Global Power (filed as Exhibit 10.2 to our Form 8‑K filed with the Commission on July 2, 2015 and incorporated herein by reference).*

10.39

Separation Agreement, dated as of September 24, 2015, by and between Global Power and Raymond K. Guba (filed as Exhibit 10.1 to our Form 8‑K filed with the Commission on September 25, 2015 and incorporated herein by reference).*

10.40

Global Power Executive Severance Plan, as Amended and Restated on August 19, 2015 (filed as Exhibit 10.2 to our Form 8‑K filed with the Commission on September 25, 2015 and incorporated herein by reference).*

10.41

Offer Letter Agreement, dated as of September 17, 2015, by and between Craig Holmes and Global Power (filed as Exhibit 10.3 to our Form 8‑K filed with the Commission on September 25, 2015 and incorporated herein by reference).*

10.42

Inducement Restricted Share Unit Agreement, dated September 24, 2015, by and between Craig Holmes and Global Power Equipment Group Inc. (filed as Exhibit 10.4 to our Form 8‑K filed with the Commission on September 25, 2015 and incorporated herein by reference).*

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10.43

Inducement Restricted Share Unit Agreement, dated September 24, 2015, by and between Peter Dawes and Global Power Equipment Group Inc. (filed as Exhibit 10.5 to our Form 8‑K filed with the Commission on September 25, 2015 and incorporated herein by reference).*

10.44

Stock Purchase Agreement, dated January 13, 2017, by and between the Company, as Seller, and Chart Lifecycle, Inc., as Buyer, relating to the sale of Hetsco Holdings, Inc., which is the sole stockholder of Hetsco, Inc. (filed as Exhibit 10.63 to our Form 10-K filed with the Commission on March 15, 2017 and incorporated herein by reference).

10.45

Retirement and Consulting Agreement, dated March 15, 2017, by and between Global Power and Timothy Howsman (filed as Exhibit 10.64 to our Form 10-K filed with the Commission on March 15, 2017 and incorporated herein by reference).*

10.46

Form of Global Power Time‑Based Restricted Share Unit Agreement. (filed as Exhibit 10.65 to our Form 10-K filed with the Commission on March 15, 2017 and incorporated herein by reference).*

10.47

Form of Global Power Performance‑Based Restricted Share Unit Agreement. (filed as Exhibit 10.66 to our Form 10-K filed with the Commission on March 15, 2017 and incorporated herein by reference).*

10.49

Retention Incentives Agreement, dated as of March 19, 2016, by and between Timothy Howsman and Global Power Equipment Group Inc. (filed as Exhibit 10.67 to our Form 10-K filed with the Commission on March 15, 2017 and incorporated herein by reference).*

10.50

Mark Jolly Offer Letter, dated November 8, 2016 (filed as Exhibit 10.1 to our Form 8-K filed with the Commission on March 16, 2017).*

10.51

Senior Secured Credit Agreement, dated as of June 16, 2017, by and among Global Power Equipment Group Inc., as Borrower, the Lenders party thereto, and Centre Lane Partners Master Credit Fund II, L.P., as Administrative Agent and Collateral Agent.♦

10.52

First Amendment to Senior Secured Credit Agreement, dated as of August 17, 2017, by and among Global Power Equipment Group Inc., as Borrower, the Lenders party thereto, and Centre Lane Partners Master Credit Fund II, L.P., as Administrative Agent and Collateral Agent. ♦

10.53

Separation Agreement, dated as of July 26, 2017, by and between Terence Cryan and Global Power Equipment Group Inc. (filed as Exhibit 10.1 to our Form 8-K filed with the Commission on July 27, 2017 and incorporated herein by reference).*

10.54

Separation Agreement, dated as of August 1, 2017, by and between Mark Jolly and Global Power Equipment Group Inc.♦

10.55

Employment Agreement, dated September 11, 2017, by and between Tracy Pagliara and Global Power Equipment Group Inc.♦

10.56

Employment Agreement, dated September 11, 2017, by and between Craig Holmes and Global Power Equipment Group Inc.♦

10.57

Employment Agreement, dated September 11, 2017, by and between Erin Gonzalez and Global Power Equipment Group Inc.♦

14.1

Code of Business Conduct and Ethics of Global Power (filed as Exhibit 14.1 to our Form 8‑K filed with the Commission on July 18, 2014 and incorporated herein by reference).

16.1

Letter from BDO USA, LLP to the U.S. Securities and Exchange Commission, dated December 17, 2015 (filed as Exhibit 16.1 to our Form 8‑K/A filed with the Commission on December 21, 2015 and incorporated herein by reference).

16.2

Letter from BDO USA, LLP to the U.S. Securities and Exchange Commission, dated March 31, 2016 (filed as Exhibit 16.1 to our Form 8‑K/A filed with the Commission on April 4, 2016 and incorporated herein by reference).

21.1

Subsidiaries of Global Power.♦

23.1

Consent of Independent Registered Public Accounting Firm.♦

24.1

Powers of Attorney for our directors and certain executive officers (included on signature page).♦

31.1

Certification by the Co-Chief Executive Officer Pursuant to Section 302 of the Sarbanes‑Oxley Act of 2002.♦

31.2

Certification by the Co-Chief Executive Officer Pursuant to Section 302 of the Sarbanes‑Oxley Act of 2002.♦

31.3

Certification by the Chief Financial Officer Pursuant to Section 302 of the Sarbanes‑Oxley Act of 2002.♦

32.1

Certification by the Co-Chief Executive Officer Pursuant to Section 906 of the Sarbanes‑Oxley Act of 2002.♦

32.2

Certification by the Co-Chief Executive Officer Pursuant to Section 906 of the Sarbanes‑Oxley Act of 2002.♦

32.3

Certification by the Chief Financial Officer Pursuant to Section 906 of the Sarbanes‑Oxley Act of 2002.♦

101.INS

XBRL Instance Document♦

101.SCH

XBRL Taxonomy Extension Schema Document♦

101.CAL

XBRL Taxonomy Extension Calculation Linkbase Document♦

101.DEF

XBRL Taxonomy Extension Definition Linkbase Document♦

101.LAB

XBRL Taxonomy Extension Labels Linkbase Document♦

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101.PRE

XBRL Taxonomy Extension Presentation Linkbase Document♦


* Indicates a management contract or compensatory plan or arrangement.

Filed herewith.

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SIGNATURES

 

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this Form to be signed on its behalf by the undersigned, thereunto duly authorized.

Dated: September 12, 2017

 

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

 

 

 

By:

/s/ Craig E. Holmes

 

 

Craig E. Holmes,
Co-President and Co-Chief Executive Officer

 

 

 

By:

/s/ Tracy D. Pagliara

 

 

Tracy D. Pagliara,
Co-President and Co-Chief Executive Officer

 

Each individual whose signature appears below constitutes and appoints Craig E. Holmes and Tracy D. Pagliara, each Co-President and Co-Chief Executive Officer, and Charles E. Wheelock, Vice President, Administration, General Counsel and Secretary, and each of them singly, his or her true and lawful attorneys‑in‑fact and agents with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Annual Report on Form 10‑K filed with the Securities and Exchange Commission, granting unto said attorneys‑in‑fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all the said attorneys‑in‑fact and agents or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant, in the capacities and on the dates indicated.

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r

 

 

 

 

NAME

    

TITLE

    

DATE

/s/ Craig E. Holmes

 

Co‑Chief Executive Officer, Co‑President and Director (Principal Executive Officer)

 

September 12, 2017

Craig E. Holmes

 

 

 

 

 

 

 

/s/ Tracy D. Pagliara

 

Co‑Chief Executive Officer, Co‑President and Director (Principal Executive Officer)

 

September 12, 2017

Tracy D. Pagliara

 

 

 

 

 

 

 

/s/ Erin Gonzalez

 

Chief Financial Officer (Principal Financial and Accounting Officer)

 

September 12, 2017

Erin Gonzalez

 

 

 

 

 

 

 

/s/ Carl Bartoli

 

Director

 

September 12, 2017

Carl Bartoli

 

 

 

 

 

 

 

/s/ David L. Keller

 

Director

 

September 12, 2017

David L. Keller

 

 

 

 

 

 

 

/s/ Charles Macaluso

 

Director and Chairman of the Board

 

September 12, 2017

Charles Macaluso

 

 

 

 

 

 

 

/s/ Robert B. Mills

 

Director

 

September 12, 2017

Robert B. Mills

 

 

 

 

 

 

 

/s/ Michael E. Rescoe

 

Director

 

September 12, 2017

Michael E. Rescoe

 

 

 

 

 

 

 

/s/ Michael E. Salvati

 

Director

 

September 12, 2017

Michael E. Salvati

 

 

 

 

 

 

 

 

 

Director

 

September 12, 2017

Gary J. Taylor

 

 

 

 

 

 

 

/s/ David A. B. Brown

 

Director

 

September 12, 2017

David A. B. Brown

 

 

 

 

 

 

 

/s/ Linda A. Goodspeed

 

Director

 

September 12, 2017

Linda A. Goodspeed

 

 

 

 

 

 

 

/s/ Nelson Obus

 

Director

 

September 12, 2017

Nelson Obus

 

 

 

 

 

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Item 8.  Financial Statements and Supplementary Data

 

Global Power Equipment Group Inc. and Subsidiaries

Table of Contents

 

 

 

Report of Independent Registered Accounting Firm  

F-2

Consolidated Financial Statements:

 

Consolidated Balance Sheets as of December 31, 2016 and 2015  

F-3

Consolidated Statements of Operations for the years ended December 31, 2016, 2015 and 2014  

F-4

Consolidated Statements of Comprehensive (Loss) Income for the years ended December 31, 2016, 2015 and 2014  

F-5

Consolidated Statements of Stockholders’ Equity for the years ended December 31, 2016, 2015 and 2014  

F-6

Consolidated Statements of Cash Flows for the years ended December 31, 2016, 2015 and 2014  

F-7

Notes to the Consolidated Financial Statements  

F-8

Schedule II  

F-46

 

F-1


 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders

Global Power Equipment Group Inc.

We have audited the accompanying consolidated balance sheets of Global Power Equipment Group Inc. and subsidiaries (the “Company”) as of December 31, 2016 and 2015, and the related consolidated statements of operations, comprehensive (loss) income, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2016. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Global Power Equipment Group Inc. and subsidiaries as of December 31, 2016 and 2015, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2016, in conformity with U.S. generally accepted accounting principles.

/s/ Hein & Associates LLP

Dallas, Texas

September 12, 2017

F-2


 

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEET S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

(in thousands, except share data)

 

2016

  

2015

ASSETS

  

 

 

  

 

 

Current assets:

 

 

 

 

 

 

Cash and cash equivalents

 

$

2,805

 

$

22,239

Restricted cash

 

 

8,765

 

 

321

Accounts receivable, net of allowance of $1,634 and $1,971, respectively

 

 

59,280

 

 

93,077

Inventories:

 

 

 

 

 

 

Raw material

 

 

4,210

 

 

6,893

Finished goods

 

 

699

 

 

1,204

Inventory reserve

 

 

(981)

 

 

(1,798)

Costs and estimated earnings in excess of billings

 

 

52,696

 

 

45,491

Assets held for sale

 

 

22,832

 

 

— 

Other current assets

 

 

7,936

 

 

4,608

Total current assets

 

 

158,242

 

 

172,035

Property, plant and equipment, net

 

 

12,596

 

 

33,822

Goodwill

 

 

36,456

 

 

50,319

Intangible assets, net

 

 

24,801

 

 

44,003

Other long-term assets

 

 

747

 

 

851

Total assets

 

$

232,842

 

$

301,030

LIABILITIES AND STOCKHOLDERS’ EQUITY

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

 

Accounts payable

 

$

19,076

 

$

16,861

Accrued compensation and benefits

 

 

10,640

 

 

15,587

Billings in excess of costs and estimated earnings

 

 

6,754

 

 

10,098

Accrued warranties

 

 

5,806

 

 

8,050

Liabilities related to assets held for sale

 

 

1,151

 

 

— 

Other current liabilities

 

 

33,915

 

 

28,605

Total current liabilities

 

 

77,342

 

 

79,201

Long-term debt

 

 

45,341

 

 

70,000

Deferred tax liabilities

 

 

15,499

 

 

14,982

Other long-term liabilities

 

 

7,526

 

 

6,080

Total liabilities

 

 

145,708

 

 

170,263

Commitments and contingencies (Note 15)

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

 

Common stock, $0.01 par value, 170,000,000 shares authorized and 18,855,409 and 18,571,411 shares issued, respectively, and 17,485,941 and 17,261,276 shares outstanding, respectively

 

 

188

 

 

186

Paid-in capital

 

 

76,708

 

 

74,841

Accumulated other comprehensive loss

 

 

(9,513)

 

 

(7,618)

Retained earnings

 

 

19,764

 

 

63,371

Treasury stock, at par (1,369,468 and 1,310,135 common shares, respectively)

 

 

(13)

 

 

(13)

Total stockholders’ equity

 

 

87,134

 

 

130,767

Total liabilities and stockholders’ equity

 

$

232,842

 

$

301,030

 

The accompanying notes are an integral part of these consolidated financial statements.

F-3


 

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATION S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands, except share data)

  

2016

  

2015

  

2014

Revenue

 

 

 

 

 

 

 

 

 

Mechanical Solutions

 

$

112,022

 

$

122,593

 

$

145,910

Electrical Solutions

 

 

75,559

 

 

93,057

 

 

77,280

Services

 

 

231,007

 

 

373,353

 

 

315,863

Total revenue

 

 

418,588

 

 

589,003

 

 

539,053

Cost of revenue

 

 

 

 

 

 

 

 

 

Mechanical Solutions

 

 

96,515

 

 

113,853

 

 

122,769

Electrical Solutions

 

 

73,309

 

 

94,042

 

 

72,297

Services

 

 

199,775

 

 

328,511

 

 

270,653

Total cost of revenue

 

 

369,599

 

 

536,406

 

 

465,719

 Gross profit 

 

 

48,989

 

 

52,597

 

 

73,334

 

 

 

 

 

 

 

 

 

 

Selling and marketing expenses

 

 

9,544

 

 

12,130

 

 

10,045

General and administrative expenses

 

 

57,194

 

 

69,471

 

 

58,747

Loss on sale of business and net assets held for sale

 

 

8,812

 

 

— 

 

 

— 

Impairment expense

 

 

— 

 

 

47,755

 

 

— 

Bargain purchase gain

 

 

— 

 

 

(3,168)

 

 

— 

Depreciation and amortization expense (1)

 

 

7,154

 

 

8,602

 

 

8,326

Total operating expenses

 

 

82,704

 

 

134,790

 

 

77,118

Operating loss

 

 

(33,715)

 

 

(82,193)

 

 

(3,784)

 

 

 

 

 

 

 

 

 

 

Interest expense, net

 

 

8,398

 

 

4,484

 

 

1,820

Foreign currency gain

 

 

(217)

 

 

(1,014)

 

 

(65)

Other expense, net

 

 

15

 

 

12

 

 

34

Total other expenses, net

 

 

8,196

 

 

3,482

 

 

1,789

Loss from continuing operations before income tax

 

 

(41,911)

 

 

(85,675)

 

 

(5,573)

Income tax expense (benefit)

 

 

1,702

 

 

(6,946)

 

 

41,661

Loss from continuing operations

 

 

(43,613)

 

 

(78,729)

 

 

(47,234)

Discontinued operations:

 

 

 

 

 

 

 

 

 

Loss from discontinued operations, net of tax

 

 

— 

 

 

— 

 

 

(1)

Loss from discontinued operations

 

 

— 

 

 

— 

 

 

(1)

Net loss

 

$

(43,613)

 

$

(78,729)

 

$

(47,235)

Loss per common share:

 

 

 

 

 

 

 

 

 

Basic loss per common share from continuing operations 

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

Basic loss per common share from discontinued operations 

 

 

— 

 

 

— 

 

 

— 

Basic loss per common share

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

 

 

 

 

 

 

 

 

 

 

Diluted loss per common share from continuing operations 

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

Diluted loss per common share from discontinued operations 

 

 

— 

 

 

— 

 

 

— 

Diluted loss per common share

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)


(1)

Excludes depreciation and amortization expense for the years ended December 31, 2016, 2015 and 2014 of $2.2 million, $2.5 million and $1.6 million, respectively, included in cost of revenue.

 

The accompanying notes are an integral part of these consolidated financial statements.

F-4


 

Table of Contents

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOM E

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Net loss

 

$

(43,613)

 

$

(78,729)

 

$

(47,235)

Foreign currency translation adjustment

 

 

(1,895)

 

 

(5,075)

 

 

(6,015)

Comprehensive loss

 

$

(45,508)

 

$

(83,804)

 

$

(53,250)

 

The accompanying notes are an integral part of these consolidated financial statements.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUIT Y

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accumulated

 

 

 

 

 

 

 

 

 

 

 

 

 

Common Shares

 

 

 

 

Other

 

 

 

 

 

 

 

 

 

 

 

 

 

$0.01 Per Share

 

Paid-in

 

Comprehensive

 

Retained

 

Treasury Shares

 

 

 

(in thousands, except share data)

  

Shares

  

Amount

  

Capital

  

Income (loss)

  

Earnings

  

Shares

  

Amount

  

Total

Balance, December 31,  2013

 

18,294,998

 

$

183

 

$

69,049

 

$

3,472

 

$

197,020

 

(1,235,055)

 

$

(12)

 

$

269,712

Issuance of restricted stock units

 

100,474

 

 

 1

 

 

(1)

 

 

— 

 

 

— 

 

— 

 

 

— 

 

 

— 

Tax withholding on restricted stock units

 

— 

 

 

— 

 

 

(601)

 

 

— 

 

 

— 

 

(31,298)

 

 

(1)

 

 

(602)

Share-based compensation

 

— 

 

 

— 

 

 

3,081

 

 

— 

 

 

— 

 

— 

 

 

— 

 

 

3,081

Dividends

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

(6,123)

 

— 

 

 

— 

 

 

(6,123)

Net loss

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

(47,235)

 

— 

 

 

— 

 

 

(47,235)

Foreign currency translation

 

— 

 

 

— 

 

 

— 

 

 

(6,015)

 

 

— 

 

— 

 

 

— 

 

 

(6,015)

Balance, December 31,  2014

 

18,395,472

 

$

184

 

$

71,528

 

$

(2,543)

 

$

143,662

 

(1,266,353)

 

$

(13)

 

$

212,818

Issuance of restricted stock units

 

175,939

 

 

 2

 

 

(2)

 

 

— 

 

 

— 

 

— 

 

 

— 

 

 

— 

Tax withholding on restricted stock units

 

— 

 

 

— 

 

 

(429)

 

 

— 

 

 

— 

 

(43,782)

 

 

— 

 

 

(429)

Share-based compensation

 

— 

 

 

— 

 

 

3,744

 

 

— 

 

 

— 

 

— 

 

 

— 

 

 

3,744

Dividends

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

(1,562)

 

— 

 

 

— 

 

 

(1,562)

Net loss

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

(78,729)

 

— 

 

 

— 

 

 

(78,729)

Foreign currency translation

 

— 

 

 

— 

 

 

— 

 

 

(5,075)

 

 

— 

 

— 

 

 

— 

 

 

(5,075)

Balance, December 31,  2015

 

18,571,411

 

$

186

 

$

74,841

 

$

(7,618)

 

$

63,371

 

(1,310,135)

 

$

(13)

 

$

130,767

Issuance of restricted stock units

 

283,998

 

 

 2

 

 

(2)

 

 

— 

 

 

— 

 

— 

 

 

— 

 

 

— 

Tax withholding on restricted stock units

 

— 

 

 

— 

 

 

(267)

 

 

— 

 

 

— 

 

(59,333)

 

 

— 

 

 

(267)

Share-based compensation

 

— 

 

 

— 

 

 

2,136

 

 

— 

 

 

— 

 

— 

 

 

— 

 

 

2,136

Dividends

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

 6

 

— 

 

 

— 

 

 

 6

Net loss

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

(43,613)

 

— 

 

 

— 

 

 

(43,613)

Foreign currency translation

 

— 

 

 

— 

 

 

— 

 

 

(1,895)

 

 

— 

 

— 

 

 

— 

 

 

(1,895)

Balance, December 31,  2016

 

18,855,409

 

$

188

 

$

76,708

 

$

(9,513)

 

$

19,764

 

(1,369,468)

 

$

(13)

 

$

87,134

 

The accompanying notes are an integral part of these consolidated financial statements.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOW S

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Years Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Operating activities:

 

 

 

 

 

 

 

 

 

Net loss

 

$

(43,613)

 

$

(78,729)

 

$

(47,235)

Adjustments to reconcile net loss to net cash (used in) provided by operating activities:

 

 

 

 

 

 

 

 

 

Deferred income tax provision (benefit)

 

 

516

 

 

(8,670)

 

 

39,682

Depreciation and amortization on plant, property and equipment and intangible assets

 

 

9,417

 

 

11,072

 

 

9,935

Amortization of deferred financing costs

 

 

231

 

 

253

 

 

229

Impairment expense

 

 

— 

 

 

47,755

 

 

— 

Loss on disposals of property, plant and equipment

 

 

2,446

 

 

19

 

 

752

Loss on sale of business and net assets held for sale

 

 

8,812

 

 

— 

 

 

— 

Bad debt expense

 

 

530

 

 

865

 

 

364

Gain on bargain purchase

 

 

— 

 

 

(3,168)

 

 

— 

Stock-based compensation

 

 

2,434

 

 

3,744

 

 

3,081

Changes in operating assets and liabilities, net of businesses acquired and sold:

 

 

 

 

 

 

 

 

 

(Increase) decrease in accounts receivable

 

 

27,510

 

 

20,132

 

 

(23,764)

(Increase) decrease in inventories

 

 

1,878

 

 

467

 

 

(1,428)

(Increase) decrease in costs and estimated earnings in excess of billings

 

 

(9,110)

 

 

8,050

 

 

(6,331)

(Increase) decrease in other current assets

 

 

(3,636)

 

 

2,600

 

 

699

(Increase) decrease in other assets

 

 

537

 

 

(950)

 

 

(608)

(Decrease) increase in accounts payable

 

 

2,849

 

 

2,029

 

 

(6,864)

Increase (decrease) in accrued and other liabilities

 

 

1,014

 

 

1,225

 

 

21,362

Decrease in accrued warranties

 

 

(2,226)

 

 

1,573

 

 

2,739

Increase (decrease) in billings in excess of costs and estimated earnings

 

 

(3,212)

 

 

(1,486)

 

 

(3,181)

Net cash (used in) provided by operating activities

 

 

(3,623)

 

 

6,781

 

 

(10,568)

Investing activities:

 

 

 

 

 

 

 

 

 

Acquisitions, net of cash acquired

 

 

— 

 

 

(7,629)

 

 

(725)

Proceeds from sale of business, net of restricted cash and transaction costs

 

 

4,847

 

 

— 

 

 

— 

Net transfers of restricted cash

 

 

(8,444)

 

 

(321)

 

 

120

Proceeds from sale of property, plant and equipment

 

 

13,978

 

 

 7

 

 

171

Purchase of property, plant and equipment

 

 

(872)

 

 

(7,316)

 

 

(8,087)

Net cash provided by (used in) investing activities

 

 

9,509

 

 

(15,259)

 

 

(8,521)

Financing activities:

 

 

 

 

 

 

 

 

 

Repurchase of stock-based awards for payment of statutory taxes due on stock-based compensation

 

 

(267)

 

 

(429)

 

 

(601)

Debt issuance costs

 

 

(177)

 

 

— 

 

 

 8

Dividends paid

 

 

— 

 

 

(1,589)

 

 

(6,141)

Proceeds from long-term debt

 

 

116,418

 

 

58,000

 

 

99,000

Payments of long-term debt

 

 

(141,076)

 

 

(33,000)

 

 

(77,000)

Net cash (used in) provided by financing activities

 

 

(25,102)

 

 

22,982

 

 

15,266

Effect of exchange rate changes on cash

 

 

(218)

 

 

(1,181)

 

 

(1,200)

Net change in cash and cash equivalents

 

 

(19,434)

 

 

13,323

 

 

(5,023)

Cash and cash equivalents, beginning of year

 

 

22,239

 

 

8,916

 

 

13,939

Cash and cash equivalents, end of year

 

$

2,805

 

$

22,239

 

$

8,916

 

 

 

 

 

 

 

 

 

 

Supplemental Disclosures:

 

 

 

 

 

 

 

 

 

Cash paid for interest

 

$

6,242

 

$

3,486

 

$

1,170

Cash paid for income taxes, net of refunds

 

$

1,612

 

$

643

 

$

(195)

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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Table of Contents

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS

NOTE 1— BUSINESS AND ORGANIZATIO N

Global Power Equipment Group Inc. and its wholly owned subsidiaries (“Global Power,” “we,” “us,” “our,” or “the Company”) are comprehensive providers of custom-engineered solutions and modification and maintenance services for customers in the power generation and process and industrial markets. We operate within three reportable segments: Mechanical Solutions, Electrical Solutions and Services. Through our Mechanical Solutions segment, we design, engineer and manufacture gas turbine auxiliary products for customers throughout the world. Through our Electrical Solutions segment, we focus on custom engineering and manufacturing of integrated control house systems, engine generator packages and enclosures, industrial tanks and custom-engineered equipment skids for the energy, oil and gas, digital data storage and electrical industries. Through our Services segment, we provide on-site specialty modification and maintenance services, outage management, facility upgrade services, specialty maintenance and other industrial services to nuclear, fossil fuel and hydroelectric power plants and other industrial operations in the United States (“U.S.”). Our corporate headquarters are located in Irving, Texas, with various facilities around the U.S. and internationally in The Netherlands, Mexico and the People’s Republic of China.

We report on a fiscal quarter basis utilizing a “modified” 4-4-5 calendar (modified in that the fiscal year always begins on January 1 and ends on December 31). However, we have continued to label our quarterly information using a calendar convention. The effects of this practice are modest and only exist when comparing interim period results. The reporting periods and corresponding fiscal interim periods are as follows:

 

 

 

 

 

 

 

 

 

 

Reporting Interim Period

 

Fiscal Interim Period

 

  

2016

  

2015

Three Months Ended March 31

 

January 1, 2016 to April 3, 2016

 

January 1, 2015 to March 29, 2015

Three Months Ended June 30

 

April 4, 2016 to July 3, 2016

 

March 30, 2015 to June 28, 2015

Three Months Ended September 30

 

July 4, 2016 to October 2, 2016

 

June 29, 2015 to September 27, 2015

 

Seasonality:  Our Services segment is materially impacted by seasonality, resulting in fluctuations in revenue and gross profit during our fiscal year. Generally, this is driven by our customers’ schedule of planned outages. Our Mechanical Solutions and Electrical Solutions segments are not materially impacted by seasonality, but instead are more impacted by the cyclicality of, and fluctuations in, the U.S. and international economies that we serve.

NOTE 2—LIQUIDITY

Our consolidated financial statements have been prepared on a going concern basis, which assumes that we will be able to meet our obligations and continue our operations during the next year. These financial statements do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classifications of liabilities that may result should we be unable to continue as a going concern.

Historically, we have funded our operations through cash on hand, asset sales and draws against our Revolving Credit Facility, as necessary. In June 2017, we completed a refinancing process and entered into the Centre Lane Facility, a 4.5-year senior secured first lien term loan. In August 2017, we entered into an amendment to the Centre Lane Facility to provide for a first-out term loan, which matures in September 2018. Using the proceeds from the Centre Lane Facility, we repaid the full balance outstanding under the Revolving Credit Facility in June 2017. However, the terms of the Centre Lane Facility are less favorable to us than the terms of the Revolving Credit Facility, and, among other things, require higher interest payments and subject us to restrictive covenants that significantly limit our operating flexibility and encumber our assets. After payment of the Revolving Credit Facility and fees associated with both the Centre Lane Facility and the Centre Lane Amendment, net cash proceeds were $15.3 million.

As of December 31, 2016, we had a net loss of $43.6 million and negative cash flows from operations of $3.6 million. Although we had positive working capital as of December 31, 2016, we refinanced our Revolving Credit Facility in 2017, which allowed us to classify our outstanding debt as long-term. Starting in 2015 and continuing into 2017, management, in conjunction with the Board of Directors, began developing and implementing a multi-step plan to address our severely constrained liquidity.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The plan consists of the following items:

·

Focusing on shortening the collection cycle time on our accounts receivables and lengthening the payment cycle time on our accounts payables;

·

Reducing ongoing operating expenses wherever possible including workforce reductions and curtailments at underutilized facilities;

·

Assessing the potential for additional asset sales in order to reduce our outstanding debt;

·

Assessing strategic alternatives with regard to Mechanical Solutions, including the potential complete divestiture of this segment in order to reduce our outstanding debt;

·

Repatriating cash held by our foreign subsidiaries; and

·

Seeking an asset-based lending facility that will enable us to issue letters of credit, as well as supplement our working capital needs.

While the initial refinancing of the Revolving Credit Facility by entering into the Initial Centre Lane Facility extended our maturity, it did not provide sufficient funding for working capital needs. The Centre Lane Amendment in August 2017 and associated First-Out Loan provided us with up to $10.0 million in additional working capital, as of September 5, 2017; however, we anticipate that our short-term liquidity position will remain constrained. The terms of the Centre Lane Facility are less favorable to us than the terms of the Revolving Credit Facility. Upon a default under the Centre Lane Facility, our senior secured lenders would have the right to accelerate the then outstanding amounts under such facility and to exercise their rights and remedies to collect such amounts, which would include foreclosing on collateral constituting substantially all of our assets and those of our subsidiaries.

The First-Out Loan matures on September 30, 2018. In order to have sufficient cash to repay the First-Out Loan, fund our operations and continue as a going concern, we will need to be successful in completing one or more of the following initiatives:

·

Sell assets outside the normal course of business;

·

Repatriate additional cash from our foreign subsidiaries; and

·

Reduce our restricted cash by decreasing our cash collateralized outstanding letters of credit.

If we are unsuccessful in these liquidity generating initiatives by September 30, 2018, and we do not have sufficient cash resources available to repay the First-Out Loan, we could be forced to seek bankruptcy protection, attempt to renegotiate our existing credit facility or raise additional capital through new debt or equity issuances. There can be no assurance that additional capital will be available on acceptable terms and our investors could lose the full value of their investment in our common stock if bankruptcy protection is ultimately sought.

NOTE 3—SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Principles of Consolidation:  The accompanying consolidated financial statements include the accounts of Global Power Equipment Group, Inc. and its wholly owned subsidiaries. All intercompany accounts and transactions have been eliminated in consolidation. Certain amounts in 2015 have been reclassified to conform to the 2016 presentation.

Use of Estimates:  The preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles (“GAAP”) requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying footnotes. Actual results could vary materially from those estimates.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Discontinued Operations:  In August 2011, we completed the sale of substantially all of the operating assets of our Deltak business unit. Discontinued operations are presented net of tax. The following notes relate to our continuing operations only unless otherwise noted.

Revenue Recognition:  Substantially all of our Mechanical Solutions and Electrical Solutions segment revenue is derived from fixed‑priced contracts. Certain of these contracts specify separate delivery dates of individual equipment units or require customer acceptance of a product. In circumstances where separate delivery dates of individual equipment units exists, we recognize revenue when the customer assumes the risk of loss and title for the equipment, which is generally the date the unit is shipped, and corresponding costs previously deferred are charged to expense. In circumstances where the contract requires customer acceptance of a product in addition to transfer of title and risk of loss to the customer, revenue is either recognized (i) upon shipment when we are able to demonstrate that the customer-specific objective criteria have been met or (ii) upon customer acceptance. Once title and risk of loss have transferred and, where applicable, customer acceptance is complete, we have no further performance obligations.

For the Mechanical Solutions segment, revenue for gas turbine auxiliary equipment contracts exceeding 175,000 in local currency units from our Braden business unit is recognized under the percentage‑of‑completion method based on efforts expended input measures. Revenue from de minimis auxiliary equipment and part sales are recognized on the completed contract method as equipment is delivered and title is transferred.

For the Electrical Solutions segment, revenue is recognized on the completed contract method, typically when the unit is shipped, due to the lack of ability to estimate contract completion.

Within our Services segment, we enter into a variety of contract structures including cost plus reimbursements, time and material contracts and fixed‑price contracts. The determination of the contract structure is based on the scope of work, complexity and project length, and customer preference of contract terms. Cost-plus and time and material contracts represent the majority of the contracts in our Services segment. For these contract types, we recognize revenue when services are performed based on an agreed‑upon price for the completed services or based upon the hours incurred and agreed‑upon hourly rates. Some of our contracts include provisions that adjust contract revenue for safety, schedule or other performance measures. On cost reimbursable contracts, revenue is recognized as costs are incurred and includes applicable mark‑up earned through the date services are provided. Revenue on fixed-price contracts is recognized under the percentage‑of‑completion method based on cost‑to‑cost input measures.

The percentage‑of‑completion method generally results in the recognition of reasonably consistent profit margins over the life of a contract because management has the ability to produce reasonably dependable estimates of contract billings and contract costs. We use the level of profit margin that is most likely to occur on a contract. If the most likely profit margin cannot be precisely determined, the lowest probable level of profit in the range of estimates is used until the results can be estimated more precisely. Our estimate of the total contract costs to be incurred at any particular time has a significant impact on the revenue recognized for the respective period. Changes in job performance, job conditions, estimated profitability, final contract settlements and resolution of claims may result in revisions to contract revenue and cost, and the effects of such revisions are recognized in the period that the revisions are determined. Under percentage‑of‑completion accounting, management must also make key judgments in areas such as the percentage‑of‑completion, estimates of project revenue, costs and margin, estimates of total and remaining project hours and any liquidated damages assessments. Any deviations from estimates could have a significant positive or negative impact on our results of operations.

Estimated losses on uncompleted contracts, regardless of whether we account for the contract under the completed contract or percentage-of-completion method, are recognized in the earliest open period in which they first become known.

We may incur costs subject to change orders, whether approved or unapproved by the customer, and/or claims related to certain contracts. We determine the probability that such costs will be recovered based upon evidence such as past practices with the customer, specific discussions or preliminary negotiations with the customer or verbal approvals. We treat items as a cost of contract performance in the period incurred and will recognize revenue if it is probable that the contract price will be adjusted and can be reliably estimated.

Pre‑contract costs are expensed as incurred.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Cash and Cash Equivalents:  Cash and cash equivalents include cash on hand and on deposit with initial maturities of three months or less. As of December 31, 2016, $3.2 million of cash and cash equivalents was held outside the U.S.

Restricted Cash:  Restricted cash as of December 31, 2016 consisted of $8.1 million that served as collateral for letters of credit and company credit card obligations and $0.7 million held in escrow for certain indemnities as claims. As of December 31, 2015, $0.3 million of restricted cash was held as collateral for letters of credit.

Accounts Receivable:  Accounts receivables are reported net of allowance for doubtful accounts and discounts. The allowance is based on numerous factors including but not limited to (i) current market conditions, (ii) review of specific customer economics and (iii) other estimates based on the judgment of management. Account balances are charged off against the allowance after all reasonable means of collection have been pursued and the potential for recovery is considered remote. We do not generally charge interest on outstanding amounts.

Inventories:  Inventories consist primarily of raw materials and are stated at the lower of first‑in, first‑out cost or market, net of applicable reserves.

Property, Plant and Equipment:  Property, plant and equipment are stated at historical cost, less accumulated depreciation. For financial reporting purposes, depreciation is calculated using the straight‑line method over the estimated useful lives. Costs of significant additions, renewals and betterments are capitalized. When an asset is sold or otherwise disposed of, the related cost and accumulated depreciation are removed from the respective accounts and the gain or loss on disposition is reflected in the accompanying consolidated statements of operations. Depreciation expense related to capital equipment used in production is included in cost of revenue. Maintenance and repairs are charged to operations when incurred.

Long‑Lived Assets:  Long‑lived assets, such as property, plant, and equipment, and purchased intangible assets subject to amortization, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long‑lived asset be tested for possible impairment, we first compare the undiscounted cash flows expected to be generated by an asset to the carrying value of the asset. If the carrying value of the long‑lived asset is not recoverable on an undiscounted cash flow basis, impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third‑party independent appraisals, as considered necessary. We group long‑lived assets by legal entity for purposes of recognition and measurement of an impairment loss as this is the lowest level for which cash flows are independent.

Goodwill and Indefinite-Lived Intangible Assets: Goodwill and indefinite-lived intangible assets are not amortized to expense, but rather are annually tested for impairment as of October 1 and more frequently if circumstances warrant. Our indefinite-lived intangible assets consist of various trade names used in our businesses.

Our testing of goodwill for potential impairment involves the comparison of each reporting unit’s carrying value to its estimated fair value, which is determined using a combination of income and market approaches. Similarly, the testing of our trade names for potential impairment involves the comparison of the carrying value for each trade name to its estimated fair value, which is determined using the relief from royalty method.

Impairment write‑downs are charged to results of operations in the period in which the impairment is determined.

Cost of Revenue:  Cost of revenue primarily includes charges for materials, direct labor and related benefits, freight (inbound and outbound), direct supplies and tools, purchasing and receiving costs, inspection costs and internal transfer costs. Cost of revenue for the Mechanical Solutions and Electrical Solutions segments also includes warehousing costs and utilities related to production facilities and, where appropriate, an allocation of overhead.

Warranty Costs:  We estimate costs based upon past warranty claims, sales history, the applicable contract terms and the remaining warranty periods. Warranty terms vary by contract but generally provide for a term of four years or less. We manage our exposure to warranty claims by having our field service and quality assurance personnel regularly monitor projects and maintain ongoing and regular communications with our customers.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Insurance.  We self‑insure a portion of our risk for health benefits and workers’ compensation. We maintain insurance coverage for other business risks including general liability insurance. We accrue for incurred but not reported claims by utilizing lag studies.

Shipping and Handling Costs:  We account for shipping and handling costs in accordance with Accounting Standards Codification (“ASC”) 605‑45 Principal Agent Considerations. Amounts billed to customers in sale transactions related to shipping and handling costs are recorded as revenue. Shipping and handling costs incurred are included in cost of revenue in the accompanying consolidated statements of operations.

Advertising Costs:  We account for advertising costs in accordance with ASC 720‑35—Advertising Costs. Generally, advertising costs are immaterial and are expensed as incurred and included in selling and marketing expense.

General and Administrative Expense:  General and administrative expense is primarily comprised of indirect labor and related benefits, legal and professional fees, indirect utilities, office rent, bad debt expense, indirect travel and related expenses.

Research and Development Expense: Research and development costs are charged to expense in the periods in which they are incurred. Research and development costs of $0.5 million, $0.3 million and $0.4 million for the years ended December 31, 2016, 2015 and 2014, respectively, are included in general and administrative expenses in the accompanying consolidated statements of operations.

Stock‑Based Compensation Expense:  We measure and recognize stock‑based compensation expense based on estimated fair values of the stock awards on the date of grant. Vesting of stock awards is based on certain service, performance and market conditions or service only conditions over a one to four year period. For all awards with graded vesting other than awards with performance‑based vesting conditions, we record compensation expense for the entire award on a straight‑line basis over the requisite service period, net of estimated forfeitures. For graded‑vesting awards with performance‑based vesting conditions, total compensation expense is recognized over the requisite service period for each separately vesting tranche of the award as if the award is, in substance, multiple awards once performance criteria are set. For market-based awards that cliff vest, total compensation expense is recorded on a straight-line basis over the requisite performance period. We recognize stock‑based compensation expense related to performance-based and market-based awards based upon our determination of the potential likelihood of achievement of the specified performance conditions at each reporting date, net of estimated forfeitures. Stock‑based compensation expense is included in operating expenses in the accompanying consolidated statements of operations.

We estimate expected forfeitures of stock‑based awards at the grant date and recognize compensation cost only for those awards expected to vest. We estimate our forfeiture rate based on several factors including historical forfeiture activity, expected future employee turnover, and other qualitative factors. We ultimately adjust this forfeiture assumption to actual forfeitures.

Foreign Currency:  The functional currency of each of our foreign subsidiaries is the applicable local currency. Assets and liabilities of the foreign subsidiary are translated to U.S. dollars using the exchange rate in effect at the balance sheet date, and results of operations are translated using an average rate during the period. Translation adjustments are accumulated and reported as a component of accumulated other comprehensive loss.

Income Taxes:  We account for income taxes using the asset and liability method under which deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. We measure deferred tax assets and liabilities using enacted tax rates expected to be applied to taxable income in the years in which those differences are expected to be recovered or settled.

Under ASC 740 Income Taxes (“ASC 740”), the FASB requires companies to assess whether valuation allowances should be established against their deferred tax assets based on the consideration of all available positive and negative evidence, using a “more likely than not” standard. In making such assessments, significant weight is given to evidence that can be objectively verified. A company’s current or previous operating history are given more weight than its future outlook,

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

although we do consider future taxable income projections, ongoing tax planning strategies and the limitation on the use of carryforward losses in determining valuation allowance needs. We establish valuation allowances for our deferred tax assets if, based on the available evidence, it is more likely than not that some portion or all of the deferred tax assets will not be realized.

During the ordinary course of business, there are many transactions and calculations for which the ultimate tax determination is uncertain. We recognize the tax benefit from uncertain tax positions only if it is more likely than not to be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position are based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. We believe that our benefits and accruals recognized are appropriate for all open audit years based on our assessment of many factors including past experience and interpretation of tax law. This assessment relies on estimates and assumptions and may involve a series of complex judgments about future events. To the extent that the final tax outcome of these matters is determined to be different than the amounts recorded, those differences will impact income tax expense in the period in which the determination is made.

Derivative Financial Instruments:  See Note 8 for discussion of the Company’s policies related to derivative financial instruments.

Adoption of New Accounting Pronouncements:

In December 2016, we adopted Accounting Standards Update (“ASU”) 2014-15, “Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern.” ASU 2014-15 requires an entity's management to evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the entity's ability to continue as a going concern within one year after the date that the financial statements are issued (or within one year after the date that the financial statements are available to be issued when applicable). When conditions or events raise substantial doubts about an entity's ability to continue as a going concern, management shall disclose: (i) the principal conditions or events that raise substantial doubt about the entity's ability to continue as a going concern; (ii) management's evaluation of the significance of those conditions or events in relation to the entity's ability to meet its obligations; and (iii) management's plans that are intended to mitigate the conditions or events and whether or not those plans alleviate the substantial doubt about the entity's ability to continue as a going concern. ASU 2014-15 was adopted on a prospective basis and did not have an impact on our financial position, results of operations or cash flows.

In the first quarter of 2016, we adopted ASU 2015-16, “Simplifying the Accounting for Measurement-Period Adjustments.” This ASU requires an acquirer in a business combination to recognize adjustments to provisional amounts that are identified during the measurement period in the reporting period in which the adjustment amounts are determined. Additionally, the effect on earnings of changes in depreciation, amortization or other income effects, if any, as a result of the change to the provisional amounts, must be calculated as if the accounting had been completed at the acquisition date. The adoption of ASU 2015-16 was adopted on a prospective basis and did not have an impact on our financial position, results of operations or cash flows.

In the first quarter of 2016, we adopted ASU 2015-15, “Presentation and Subsequent Measurement of Debt Issuance Costs Associated with Line of Credit Arrangements.” This ASU clarifies the presentation and measurement of debt issuance costs incurred in connection with line of credit arrangements. This guidance allows an entity to defer and present debt issuance costs related to a line of credit arrangement as an asset and subsequently amortizing the deferred debt issuance costs ratably over the term of the line of credit arrangement. The adoption of ASU 2015 15 was adopted on a prospective basis and did not have an impact on our financial position, results of operations or cash flows.

In the first quarter of 2016, we adopted ASU 2015-03, “Simplifying the Presentation of Debt Issuance Costs.” This ASU changes the presentation of debt issuance costs on the balance sheet by requiring an entity to present debt issuance costs related to a recognized debt liability as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. ASU 2015-03 was adopted on a prospective basis and did not have an impact on our financial position, results of operations or cash flows.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

In the first quarter of 2016, we adopted ASU 2015-01 “Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items.” Under this ASU, an entity will no longer be allowed to separately disclose extraordinary items, net of tax, in the income statement after income from continuing operations if an event or transaction is unusual in nature and occurs infrequently. ASU 2015-01 was adopted on a prospective basis did not have an impact on our financial position, results of operations or cash flows.

In the first quarter of 2016, we adopted ASU 2014-12, “Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved After the Requisite Service Period.” This ASU requires that a performance target that affects vesting, and that could be achieved after the requisite service period, be treated as a performance condition. The adoption of ASU 2014-12 did not have an impact on the company’s financial position, results of operations or cash flows.

Recently Issued Accounting Pronouncements:

In May 2017, the FASB issued ASU 2017-09, “Scope of Modification Accounting.” This ASU is intended to clarify when an entity is required to apply modification accounting when there have been changes to the terms or conditions of a share-based payment award. ASU 2017-09 is effective for annual and interim periods beginning after December 15, 2017 and should be applied prospectively to an award modified on or after the adoption date. We do not expect the adoption of ASU 2017-09 to have a material impact on our financial position, results of operations or cash flows.

In January 2017, the FASB issued ASU 2017-04, “Simplifying the Test for Goodwill Impairment.” ASU 2017-04 removes the second step of the goodwill impairment test, which requires a hypothetical purchase price allocation. A goodwill impairment will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill. ASU 2017-04 is effective for interim and annual reporting periods beginning after December 15, 2019 and will be applied prospectively. We do not expect the adoption of ASU 2017-04 to have a material impact on our financial position, results of operations or cash flows.

In January 2017, the FASB issued ASU 2017-01, “Clarifying the Definition of a Business,” which changes the definition of a business to assist entities with evaluating when a set of transferred assets and activities is a business. ASU 2017-01 requires an entity to evaluate if substantially all of the fair value of the gross assets acquired (or disposed of) is concentrated in a single identifiable asset or a group of similar identifiable assets; if so, the set of transferred assets and activities is not a business. ASU 2017-01 is effective for interim and annual reporting periods beginning after December 15, 2017 and should be applied on a prospective basis. We do not expect the adoption of ASU 2017-01 to have a material impact on our financial position, results of operations or cash flows.

In November 2016, the FASB issued ASU 2016-18, “Restricted Cash (a consensus of the FASB Emerging Issues Task Force).” ASU 2016-18 requires an entity to include in its cash and cash-equivalent balances in the statement of cash flows those amounts that are deemed to be restricted cash and restricted cash equivalents. ASU 2016-18 is effective for interim and annual reporting periods beginning after December 15, 2017. We do not expect the adoption of ASU 2016-18 to have a material impact on our financial position or results of operations. We are currently evaluating the impact adoption will have on our statement of cash flows.

In October 2016, the FASB issued ASU 2016-16 “Intra-Entity Transfers of Assets Other than Inventory.” ASU 2016-16 requires an entity to recognize the income tax consequences of an intra-entity transfer of an asset, other than inventory, when the transfer occurs. ASU 2016-16 is effective for interim and annual reporting periods beginning after December 15, 2017 and should be applied on a modified retrospective basis. We do not expect the adoption of ASU 2016-16 to have a material impact on our financial position, results of operations or cash flows.

In August 2016, the FASB issued ASU 2016-15, “Classification of Certain Cash Receipts and Cash Payments.” ASU 2016-15 amends the guidance in ASC 230, which often requires judgment to determine the appropriate classification of cash flows as operating, investing or financing activities, and has resulted in diversity in practice in how certain cash receipts and cash payments are classified. ASU 2016-15 is effective for interim and annual reporting periods beginning after December 15, 2017 and should be applied on a retrospective basis. We do not expect the adoption of ASU 2016-15 to have a material impact on our cash flows.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

In March 2016, the FASB issued ASU 2016-09, “Improvements to Employee Share-Based Payment Accounting.” This ASU is intended to simplify various aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. ASU 2016-09 is effective for annual and interim periods beginning after December 15, 2016 and early adoption is permitted. If early adopted, an entity must adopt all of the amendments during the same period. We are currently evaluating the potential impact of the adoption of ASU 2016-09 on our financial position, results of operations and cash flows.

In February 2016, the FASB issued ASU 2016-02, “Leases.” The main difference between the current requirement under GAAP and ASU 2016-02 is the recognition of lease assets and lease liabilities by lessees for those leases classified as operating leases. ASU 2016-02 requires that a lessee recognize in the statement of financial position a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term (other than leases that meet the definition of a short-term lease). The liability will be equal to the present value of lease payments. The asset will be based on the liability, subject to adjustment, such as for initial direct costs. For income statement purposes, the FASB retained a dual model, requiring leases to be classified as either operating or finance. Operating leases will result in straight-line expense (similar to current operating leases) while finance leases will result in a front-loaded expense pattern (similar to current capital leases). Classification will be based on criteria that are largely similar to those applied in current lease accounting. ASU 2016-02 is effective for annual and interim periods beginning after December 15, 2018 and early adoption is permitted. ASU 2016-02 must be adopted using a modified retrospective transition, and provides for certain practical expedients. We are currently assessing the potential impact of the adoption of ASU 2016-02 on our financial position, results of operations and cash flows.

In July 2015, the FASB issued ASU 2015-11, “Simplifying the Measurement of Inventory.” The new guidance requires an entity to measure inventory, other than that measured using last-in- first out or the retail inventory method, at the lower of cost or net realizable value, which is defined as the estimated selling price in the ordinary course of business, less reasonably predictable costs of completion, disposal and transportation. ASU 2015-11 is effective beginning with the Company’s fiscal year 2017 and should be applied prospectively, with earlier application permitted. We have no plans for early adoption. We do not expect the adoption of ASU No. 2015-11 to have a material impact on our financial position, results of operations or cash flows.

In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers,” which provides new guidance for revenue recognized from contracts with customers, and will replace the existing revenue recognition guidance. ASU No. 2014-09 requires that revenue is recognized at an amount the company is entitled to upon transferring control of goods or services to customers, as opposed to when risks and rewards transfer to a customer. In July 2015, the FASB issued ASU No. 2015-14, “Revenue from Contracts with Customers (Topic 606): Deferral of the Effective Date,” which deferred the effective date of ASU No. 2014-09 by one year, making it effective for the interim reporting periods within the annual reporting period beginning after December 15, 2017, or January 1, 2018. This standard may be applied retrospectively to all prior periods presented, or retrospectively with a cumulative adjustment to retained earnings in the year of adoption. We anticipate adopting the standard using the modified retrospective method. We have begun initial discussions on significant differences and scoping; however, we have not determined the impact the adoption will have on our consolidated financial statements and related disclosures.

The FASB has issued several additional ASUs to provide implementation guidance on ASU No. 2015-14, including ASU No. 2016-08, “Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net)” issued in March 2016 and ASU No. 2016-10, “Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing” issued in April 2016. We will consider this guidance in evaluating the impact of ASU 2014-09.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

NOTE 4—ACQUISITION

In February 2015, we acquired all the assets of Siemens’ eHouse manufacturing operations, a manufacturer and integrator of engineered packaged control house solutions for a variety of industries, including energy, oil and gas, and electrical. This acquisition allowed us to expand our products and service offerings internationally and in the U.S. A summary of the acquisition is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Assets

 

 

 

Primary Form of

Business Acquired (in thousands)

 

Date of Closing

 

Acquired

 

Segment

 

Consideration

Siemens Energy Packaged Power Solutions

 

February 27, 2015

 

$

7,629

 

Electrical Solutions

 

Cash

 

This acquired business has been included in our results of operations since the date of closing. Due to the timing of this acquisition and related operating results, our 2016 and 2015 operating results are not entirely comparable. The fair values of the acquired assets were determined based on valuation techniques using cost and sales comparison approaches.

The fair value of the net assets acquired exceeded the purchase consideration by $3.2 million, resulting in a bargain purchase gain at acquisition, which is included in bargain purchase gain in our consolidated statement of operations for the year ended December 31, 2015. We reassessed the recognition and measurement of identifiable assets and liabilities acquired and concluded that all acquired assets and liabilities were recognized and that the valuation procedures and resulting estimates of fair values were appropriate. The bargain purchase was primarily the result of divesture by Siemens of eHouse manufacturing operations outside their core business.

A summary of the purchase consideration and allocation of the purchase consideration is as follows:

 

 

 

 

 

 

 

 

 

 

 

(in thousands)

  

Total

Current assets

 

$

3,085

Property, plant and equipment

 

 

9,347

Identifiable intangible assets

 

 

320

Total assets acquired

 

 

12,752

Long-term deferred tax liability

 

 

(1,955)

Net assets acquired

 

 

10,797

Bargain purchase gain

 

 

(3,168)

Fair value of net assets acquired

 

$

7,629

 

Acquired identifiable intangible assets of $0.3 million consisted of customer projects currently in backlog. We are amortizing this acquired intangible asset over two years. Amortization expense related to the intangible assets was $0.2 million and $0.1 million for the year ended December 31, 2016 and 2015, respectively.

We have not disclosed the pro-forma impact of the Siemens eHouse manufacturing operations acquisition, as such impact was not material to our consolidated financial position or results of operations.

We incurred $0.4 million of transaction, due diligence and integration costs related to the acquisition of the Siemens’ eHouse manufacturing operations that are reflected in general and administrative expenses in our consolidated statements of operations for the year ended December 31, 2015.

 

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

NOTE 5—ASSETS HELD FOR SALE AND DISPOSITION

Assets Held for Sale

In June 2016, we engaged a financial advisor to assist with the sale of our wholly owned subsidiary, Hetsco, Inc. (“Hetsco”) in order to pay down debt. Hetsco was part of our Services segment. In connection with our decision to sell Hetsco, we adjusted the net assets to estimated fair value less estimated selling expenses which resulted in a write-down of $8.3 million. The assets and liabilities of Hetsco have been reclassified to “assets held for sale” and “liabilities related to assets held for sale,” respectively, in the accompanying consolidated balance sheet. The significant assets and liabilities of Hetsco as of December 31, 2016 were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

(In thousands)

 

 

December 31, 2016

Accounts receivable

 

$

4,739

Other assets

 

 

642

Property and equipment

 

 

1,230

Goodwill and other intangible assets

 

 

16,221

Assets held for sale

 

$

22,832

 

 

 

 

Accounts payable

 

$

355

Accrued liabilities

 

 

796

Liabilities related to assets held for sale

 

$

1,151

 

A summary of Hetsco’s income (loss) before income taxes for the years ended December 31, 2016, 2015 and 2014 is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(In thousands)

 

 

2016

 

 

2015

 

 

2014

Income (loss) before income taxes

 

$

(7,713)

 

$

(5,374)

 

$

814

 

On January 13, 2017 we sold the stock of Hetsco for $23.2 million in cash, inclusive of working capital adjustments. See “Note 20–Subsequent Events.”

Disposition of TOG

On July 29, 2016, we sold the stock of our wholly owned subsidiary TOG Holdings, Inc. (“TOG”) for $6.0 million in cash which, after deductions of (i) an escrow withholding of $0.8 million and (ii) selling expenses of $0.4 million, resulted in net proceeds of $4.8 million. We sold TOG as part of our liquidity efforts. We used the net proceeds to reduce indebtedness. The funds held in escrow will be used to satisfy any properly supported indemnification claims, and any funds remaining in escrow 18 months after the closing will be released to us subject to any pending indemnification claims. In addition, as a result of the sale, we no longer have liability associated with TOG’s leased property. In connection with our sale of TOG, we recorded a loss of $0.5 million which is included in general and administrative expense in the accompanying consolidated statements of operations. TOG was part of our Mechanical Solutions segment. A summary of TOG’s income (loss) before income taxes for the years ended December 31, 2016, 2015 and 2014 is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

 

2016

 

 

2015

 

 

2014

Income (loss) before income taxes

 

$

(176)

 

$

(4,732)

 

$

370

 

 

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

NOTE 6—PROPERTY, PLANT AND EQUIPMENT

Our property, plant and equipment balances, by significant asset category, are as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Estimated

 

December 31,

($ in thousands)

 

Useful Lives

  

2016

  

2015

Land

 

— 

 

$

418

 

$

3,122

Buildings and improvements

 

5 - 39 years

 

 

6,805

 

 

20,135

Machinery and equipment

 

3 - 12 years

 

 

15,986

 

 

21,371

Furniture and fixtures

 

2 - 10 years

 

 

14,469

 

 

14,136

Construction-in-progress

 

— 

 

 

756

 

 

3,521

 

 

 

 

 

38,434

 

 

62,285

Less accumulated depreciation

 

 

 

 

(25,838)

 

 

(28,463)

Property, plant and equipment, net

 

 

 

$

12,596

 

$

33,822

 

Construction‑in‑progress primarily included building improvements and machinery and equipment as of December 31, 2016 and December 31, 2015. Depreciation expense was $5.0 million, $5.3 million and $4.3 million during the years ended December 31, 2016, 2015 and 2014, respectively. During 2015, we recognized impairment charges of $0.6 million related to an impairment of a building in our Mechanical Solutions segment. No impairment charges were recognized for the year ended December 31, 2016.

NOTE 7—GOODWILL AND OTHER INTANGIBLE ASSETS

The following table details the changes in the carrying amount of goodwill by reportable segment:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mechanical

 

Electrical

  

 

  

 

 

 

 

Solutions

 

Solutions

 

Services

 

 

 

(in thousands)

 

Segment

 

Segment

 

Segment

 

Total

Balance as of January 1, 2015

 

$

26,016

 

$

13,501

 

$

48,396

 

$

87,913

Impairment

 

 

(23,284)

 

 

(13,501)

 

 

(809)

 

 

(37,594)

Balance as of December 31, 2015

 

 

2,732

 

 

— 

 

 

47,587

 

 

50,319

Sale of business

 

 

(1,676)

 

 

— 

 

 

— 

 

 

(1,676)

Goodwill reclassified to assets held for sale

 

 

— 

 

 

— 

 

 

(12,187)

 

 

(12,187)

Balance as of December 31, 2016

 

$

1,056

 

$

— 

 

$

35,400

 

$

36,456

 

The following other intangible assets are included in other noncurrent assets on the Company’s balance sheets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2016

 

December 31, 2015

 

 

Weighed

 

Gross

 

 

 

 

 

 

 

Gross

 

 

 

 

 

 

 

 

Average

  

Carrying

  

Accumulated

  

 

 

 

Carrying

 

Accumulated

 

 

 

($ in thousands)

 

life

 

Amount

 

Amortization

 

Net

 

Amount

 

Amortization

 

Net

Customer relationships

 

8.5 years

 

$

19,600

 

$

(9,610)

 

$

9,990

 

$

38,500

 

$

(14,963)

 

$

23,537

Non-compete agreements

 

5 years

 

 

1,716

 

 

(1,405)

 

 

311

 

 

3,016

 

 

(1,755)

 

 

1,261

Backlog

 

1.1 years

 

 

320

 

 

(320)

 

 

— 

 

 

320

 

 

(145)

 

 

175

Trade names

 

Indefinite

 

 

14,500

 

 

— 

 

 

14,500

 

 

19,030

 

 

— 

 

 

19,030

Total

 

 

 

$

36,136

 

$

(11,335)

 

$

24,801

 

$

60,866

 

$

(16,863)

 

$

44,003

 

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Amortization expense during 2016, 2015 and 2014 was $4.4 million, $5.8 million and $5.6 million, respectively. The estimated future aggregate amortization expense of other intangible assets as of December 31, 2016 is as follows:

 

 

 

 

 

 

 

 

December 31,

 

 

(in thousands)

2017

 

$

2,593

2018

 

 

2,411

2019

 

 

2,346

2020

 

 

1,998

2021

 

 

953

Thereafter

 

 

— 

Total

 

$

10,301

 

We test goodwill and trade names for impairment on an annual basis, as of October 1, and when events or changes in circumstances indicate the fair value of a reporting unit with goodwill has been reduced below the carrying value of the net assets of the reporting unit in accordance with ASC 350–Intangibles–Goodwill and Other.

We determine the fair value of each reporting unit using a combination of income and market approaches. For purposes of the income approach, fair value is determined based on the present value of estimated future cash flows, discounted at an appropriate risk-adjusted rate. We use our internal forecasts to estimate future cash flows and include an estimate of long-term future growth rates based on our most recent views of the long-term outlook for each reporting unit, which falls within Level 3 of the fair value hierarchy. We also use three market approaches to estimate the fair value of our reporting units utilizing comparative market multiples in the valuation estimates. While the income approach has the advantage of utilizing more company specific information, the market approaches have the advantage of capturing market based transaction pricing.

As of December 31, 2016 our indefinite-lived intangible assets consisted of our Williams Industrial Services Group, Koontz-Wagner Custom Control and IBI Power trade names. We determine the fair value of our trade names using the relief from royalty method. Under that method, the fair value of each trade name is determined by calculating the present value of the after tax cost savings associated with owning the assets and therefore not having to pay royalties for its use for the remainder of its estimated useful life. As a result of our annual indefinite-lived intangible asset impairment analysis as of October 1, 2016, we determined the fair value of our trade names exceeded their book values; therefore, no impairment charge was recorded for the year ended December 31, 2016.

As a result of our annual goodwill impairment analysis as of October 1, 2016, we determined that the fair value of our Mechanical Solutions and Services reporting units each exceeded their respective book values, and accordingly, no impairment charge was necessary for the year ended December 31, 2016.

During the second quarter of 2015, our stock price declined, which we believe was due to the announcement of the inability to rely upon our previously reported financial statements. At the time, we believed this to be a temporary decline in our market capitalization that would rebound upon the issuance of restated financial statements. During the third quarter of 2015, we lost a significant customer in our Services segment and the forecast for our Mechanical Solutions segment began to deteriorate. Our restatement efforts continued during the third quarter of 2015, and our stock price further declined. As a result, we performed a goodwill impairment analysis using the required two-step process as of September 30, 2015. Given that our annual impairment testing date is October 1, we did not perform the quantitative impairment analysis at October 1, as we did not believe that there would be a material change from the September 30 analysis.

The results of our step one analysis indicated that the carrying value of all reporting units except William Industrial Services, LLC. exceeded their fair values. Accordingly, we performed the second step of the analysis and concluded that the associated goodwill and trade names were impaired. Impairment of $47.2 million was recorded for the year ended December 31, 2015 and consisted of $37.6 million of goodwill impairment and $9.6 million of impairment of trade names. We had no impairment losses on our goodwill or intangible assets prior to 2015.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Estimating the fair value of reporting units and trade names requires the use of estimates and significant judgments that are based on a number of factors including current and historical actual operating results, balance sheet carrying values, our most recent forecasts, and other relevant quantitative and qualitative information. If current or expected conditions deteriorate, it is reasonably possible that the judgments and estimates described above could change in future periods and result in impairment charges.

NOTE 8—FINANCIAL INSTRUMENTS

ASC 820–Fair Value Measurement, defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. ASC 820 also establishes a three tier fair value hierarchy, which categorizes the inputs used in measuring fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets and liabilities and the lowest priority to unobservable inputs.

Our financial instruments as of December 31, 2016 and 2015 consisted primarily of cash and cash equivalents, restricted cash, receivables, payables and debt instruments. The carrying values of these financial instruments approximate their respective fair values, as they are either short term in nature or carry interest rates that are periodically adjusted to market rates. As discussed below, we held seven foreign currency forward exchange contracts at December 31, 2016. We measured fair value and recorded the associated change in value using available market rates for forward contracts of the same duration to mark the contracts to market. These foreign currency forward exchange contracts matured in 2017.

Derivative Financial Instruments

We selectively use financial instruments in the management of our foreign currency exchange exposures. These financial instruments are considered derivatives under ASC 815–Derivatives and Hedging, and are analyzed at the individual contract level to determine whether or not a contract qualifies for hedge accounting.

As of December 31, 2016, the Company had total gross notional amount of $10.0 million of foreign currency contract commitments related to the Euro denominated engineering and Construction obligations. The foreign currency contracts are of varying duration, none of which extend beyond April 2017. As of December 31, 2015, the Company had no foreign currency contract commitments.

The Company designates only those contracts which closely match the underlying transactions as hedge for accounting purposes. These hedges resulted in substantially no ineffectiveness in the Company’s consolidated statements of operations and there were no components excluded from the assessment of hedge effectiveness for the year ended December 31, 2016. All of the instruments were highly liquid and were not entered into for trading purposes.

Derivative instruments are presented on a gross basis on the Company’s consolidated balance sheet. The assets and liabilities in the table below reflect the gross amount of derivative instruments at December 31, 2016.

The fair value of the Company’s derivatives designated as hedging instruments on the consolidated balance sheet was as follows:

 

 

 

 

 

 

 

 

 

 

 

 

As of December 31,

 

2016

($ in thousands)

 

Balance Sheet Location

  

Fair Value

Foreign exchange contracts

 

Other current assets

 

$

748

 

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The Company had no assets or liabilities designated as hedge instruments as of December 31, 2015. As of December 31, 2016 and 2015, the Company had no derivative assets or liabilities not designated as hedging instruments.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

  

Location

  

2016

  

2015

  

2014

Foreign exchange contracts designated as hedging instruments

 

Other (income) expense, net

 

$

(11)

 

$

(117)

 

$

375

Foreign exchange contracts not designated as hedging instruments

 

Other (income) expense, net

 

$

— 

 

$

511

 

$

962

 

The   gains and losses recognized in earnings on hedging instruments for the fair value hedges offset the amount of gains and losses recognized in earnings on the hedged item in the same location in the consolidated statements of operations.

Fair Value of Financial Instruments

ASC 820–Fair Value Measurement defines fair value as the exit price, which is the price that would be received to sell an asset or paid to transfer a liability in a transaction between market participants at the measurement date. ASC 820 also establishes a three-tier fair value hierarchy, which categorizes the inputs used in measuring fair value. The hierarchy gives the highest priority to unadjusted quoted prices in the active markets for identical assets and liabilities and the lowest priority to unobservable inputs.

The following table shows our liabilities measured at fair value on our consolidated balance sheet as of December 31, 2014, and the related fair value input categories:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair Value Measurements at Reporting Date Using

(in thousands)

  

 

Total Fair Value Liabilities at December 31, 2016

  

 

Quoted Prices in Active Markets for Identical Assets (Level 1)

  

 

Significant Other Observable Inputs (Level 2)

  

 

Significant Unobservable Inputs (Level 3)

Foreign exchange contracts

 

$

748

 

$

— 

 

$

748

 

$

— 

   Total

 

$

748

 

$

— 

 

$

748

 

$

— 

 

 

NOTE 9—INCOME TAXES

Income (loss) before income taxes was as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Domestic

 

$

(46,902)

 

$

(85,905)

 

$

(11,690)

Foreign

 

 

4,991

 

 

230

 

 

6,117

(Loss) income from continuing operations

 

 

(41,911)

 

 

(85,675)

 

 

(5,573)

Income from discontinued operations

 

 

— 

 

 

— 

 

 

 6

(Loss) income before income tax

 

$

(41,911)

 

$

(85,675)

 

$

(5,567)

 

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The following table summarizes the income tax expense (benefit) by jurisdiction:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Current:

 

 

 

 

 

 

 

 

 

Federal

 

$

— 

 

$

— 

 

$

— 

State

 

 

33

 

 

54

 

 

(391)

Foreign

 

 

1,153

 

 

1,670

 

 

2,377

Total current

 

 

1,186

 

 

1,724

 

 

1,986

Deferred:

 

 

 

 

 

 

 

 

 

Federal

 

 

904

 

 

(6,808)

 

 

37,567

State

 

 

110

 

 

(636)

 

 

2,681

Foreign

 

 

(498)

 

 

(1,226)

 

 

(566)

Total deferred

 

 

516

 

 

(8,670)

 

 

39,682

Income tax expense (benefit)

 

$

1,702

 

$

(6,946)

 

$

41,668

 

Income tax expense (benefit) is allocated between continuing operations and discontinued operations as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Continuing operations

 

$

1,702

 

$

(6,946)

 

$

41,661

Discontinued operations

 

 

— 

 

 

— 

 

 

 7

Income tax expense (benefit)

 

 

1,702

 

 

(6,946)

 

 

41,668

 

Effective Tax Rate Reconciliation

The amount of the income tax provision for continuing operations during the years ended December 31, 2016, 2015 and 2014 differs from the statutory federal income tax rate of 35% as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

 

 

2016

 

2015

 

2014

 

(in thousands)

 

Amount

  

Percent

  

Amount

  

Percent

  

Amount

  

Percent

 

Tax expense (benefit) computed at the maximum U.S. statutory rate

 

$

(14,669)

 

35.0

%

$

(29,986)

 

35.0

%

$

(1,951)

 

35.0

%

Difference resulting from state income taxes, net of federal income tax benefits

 

 

(1,623)

 

3.9

%

 

(2,987)

 

3.5

%

 

(759)

 

13.6

%

Foreign tax rate differences

 

 

(463)

 

1.1

%

 

162

 

(0.2)

%

 

(599)

 

10.7

%

Non-deductible business disposition costs

 

 

515

 

(1.2)

%

 

— 

 

— 

 

 

— 

 

— 

 

Non-deductible expenses, other

 

 

282

 

(0.7)

%

 

(605)

 

0.7

%

 

567

 

(10.2)

%

Goodwill impairment

 

 

— 

 

— 

 

 

1,882

 

(2.2)

%

 

— 

 

— 

 

Deemed foreign dividends

 

 

1,097

 

(2.6)

%

 

1,725

 

(2.0)

%

 

— 

 

— 

 

Change in net operating loss carryforward

 

 

 2

 

— 

 

 

75

 

(0.1)

%

 

(655)

 

11.8

%

Change in valuation allowance

 

 

17,415

 

(41.6)

%

 

21,898

 

(25.6)

%

 

44,900

 

(805.7)

%

Change in accrual for uncertain tax positions

 

 

(651)

 

1.6

%

 

(106)

 

0.1

%

 

361

 

(6.5)

%

Change in foreign tax credits

 

 

(568)

 

1.4

%

 

(754)

 

0.9

%

 

257

 

(4.6)

%

Change in unremitted foreign earnings

 

 

326

 

(0.8)

%

 

2,299

 

(2.7)

%

 

— 

 

0.0

%

Other, net

 

 

39

 

(0.2)

%

 

(549)

 

0.7

%

 

(460)

 

8.3

%

Total tax expense (benefit)

 

$

1,702

 

(4.1)

%

$

(6,946)

 

8.1

%

$

41,661

 

(747.6)

%

 

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Deferred Taxes

The significant components of deferred income tax assets and liabilities consist of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

(in thousands)

 

2016

  

2015

Assets:

 

 

 

 

 

 

Cost in excess of identifiable net assets of business acquired

 

$

6,313

 

$

5,416

Reserves and other accruals

 

 

7,953

 

 

6,945

Tax credit carryforwards

 

 

11,926

 

 

12,079

Accrued compensation and benefits

 

 

3,796

 

 

4,297

State net operating loss carryforwards

 

 

6,147

 

 

5,087

Federal net operating loss carryforwards

 

 

51,448

 

 

40,705

Gain/loss on assets held for sale

 

 

3,150

 

 

— 

Other

 

 

269

 

 

985

 

 

 

91,002

 

 

75,514

Liabilities:

 

 

 

 

 

 

Undistributed foreign earnings

 

 

(2,624)

 

 

(2,299)

Indefinite life intangibles

 

 

(17,321)

 

 

(15,940)

Property and equipment

 

 

(43)

 

 

(2,611)

Net deferred tax assets

 

 

71,014

 

 

54,664

Valuation allowance for net deferred tax assets

 

 

(86,513)

 

 

(69,646)

Net deferred tax liability after valuation allowance

 

$

(15,499)

 

$

(14,982)

 

We have a net deferred tax liability of $15.5 million and $15.0 million as of December 31, 2016 and December 31, 2015, respectively. The net deferred tax liabilities for the years ended December 31, 2016 and 2015 predominantly related to indefinite-lived intangibles deferred tax liabilities that cannot be used to offset deferred tax assets subject to valuation allowances. Additional valuation allowances of $16.9 million and $21.9 million were recorded against the gross deferred tax asset balances as of December 31, 2016 and December 31, 2015, respectively.

As of December 31, 2016, we would need to generate $209.7 million of future U.S. pre-tax income to realize our deferred tax assets.

The income tax benefit of the Company’s excess tax benefit related to restricted stock awards amounts to $2.6 million as of December 31, 2016. The income tax benefit related to excess tax benefits will be credited to paid-in-capital upon the adoption of ASU 2016-09.

Net Operating Losses and Tax Credit Carryforwards

As of December 31, 2016, we have $157.9 million of federal net operating loss (“NOL”) carryforwards expiring between 2026 and 2036. We have state NOL carryforwards of $194.5 million expiring between 2017 and 2036. We have $2.7 million of foreign NOL carryforwards that will begin expiring in 2017. We have $9.6 million in foreign tax credit carryforwards expiring between 2017 and 2026.

Under the Internal Revenue Code, the amount of and the benefits from NOL and tax credit carryforwards may be limited or permanently impaired in certain circumstances.

Valuation Allowances

We review, at least annually, the components of our deferred tax assets. This review is to ascertain that, based upon all of the information available at the time of the preparation of the financial statements, it is more likely than not, that we expect to utilize these deferred tax assets in the future. If we determine that is more likely than not that these deferred tax assets will not be utilized, a valuation allowance is recorded, reducing the deferred tax asset to the amount expected to be

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

realized. Many factors are considered in the determination that the deferred tax assets are more likely than not will be realized, including recent cumulative earnings, expectations regarding future taxable income, length of carryforward periods, and other relevant quantitative and qualitative factors. The recoverability of the deferred tax assets is determined by assessing the adequacy of future expected taxable income from all sources, including reversal of taxable temporary differences, forecasted operating earnings, and tax planning strategies.

As of December 31, 2014, we placed a significant amount of weight on the negative evidence regarding the Company’s recent history of restated cumulative pre-tax losses from its U.S. and certain foreign business operations, i.e., the operations which must generate the future taxable income in order to realize the benefits from the deferred tax assets. The rationale for us placing a significant amount of weight on the Company’s recent history of cumulative restated pre-tax losses is that this represents both clearly objective and verifiable negative evidence of the Company’s ability to use its deferred tax assets. Additionally, the accounting standards indicate that a recent history of cumulative losses is a difficult burden to overcome. Because of the Company’s history of U.S. Federal, state, and certain foreign NOL, no significant cash tax refund carryback opportunities are available to the Company.

Therefore, as of December 31, 2014, with the restated pre-tax losses generated by the U.S. and certain foreign business operations, specifically, the pre-tax losses generated in 2014 and the preceding two years, we determined the weight of the objective and verifiable negative evidence clearly indicated in the fourth fiscal quarter that a valuation allowance against all of its U.S. and certain foreign deferred tax assets was necessary. As a result, additional valuation allowances of $44.9 million were recorded against the gross deferred tax asset balances as of December 31, 2014. No additional valuation allowances prior to the fourth quarter of 2014 were required to be placed on the Company’s deferred tax assets because restated pre-tax income (loss) generated in the current quarter and prior eleven quarters of each measurement period resulted in cumulative net income.

Our valuation allowances for deferred tax assets are $86.5 million and $69.6 million as of December 31, 2016 and December 31, 2015, respectively.

Unremitted Earnings

Our foreign subsidiaries generate earnings that are not subject to U.S. income taxes so long as they are permanently reinvested in our operations outside of the U.S. Pursuant to ASC Topic No. 740-30, undistributed earnings of foreign subsidiaries that are no longer permanently reinvested would become subject to deferred income taxes. Prior to fiscal year 2015, we asserted that the undistributed earnings of our foreign subsidiaries were permanently reinvested.

In the third quarter of 2015 our European operations loaned $5.0 million to our U.S. operations in order to provide additional working capital. Primarily due to this intercompany loan and the increase in our U.S. revolver and working capital needs, we concluded that the ability to access certain amounts of foreign earnings from our Netherlands-based operations would provide greater flexibility to meet domestic cash flow needs without constraining foreign objectives. Accordingly, in the third quarter of fiscal year 2015, we withdrew the permanent reinvestment assertion on $14.3 million of earnings generated by our Netherlands-based foreign subsidiaries through fiscal year 2015. We provided for U.S. income taxes on the $14.3 million of undistributed foreign earnings, resulting in the recognition of a deferred tax liability of $2.3 million.

As a result of the withdrawal of the permanent reinvestment assertion of our foreign earnings from our Netherlands-based operations in the third quarter of fiscal 2015, we provided for U.S. income taxes on an additional $2.0 million of earnings generated by our Netherlands-based operations in fiscal 2016, resulting in the recognition of an incremental deferred tax liability of $0.3 million in fiscal 2016.

As of December 31, 2016, the Company does not have any undistributed earnings in any of its other foreign subsidiaries because all of the earnings of its other foreign subsidiaries were taxed as deemed dividends.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Uncertain Tax Positions

A reconciliation of the beginning and ending amount of total unrecognized tax benefits is as follows (in thousands):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

  

2016

  

2015

  

2014

Unrecognized tax benefits at January 1

 

$

4,515

 

$

4,631

 

$

4,673

Change in unrecognized tax benefits taken during a prior period

 

 

— 

 

 

— 

 

 

— 

Change in unrecognized tax benefits during the current period

 

 

245

 

 

38

 

 

134

Decreases in unrecognized tax benefits from settlements with taxing authorities

 

 

— 

 

 

— 

 

 

— 

Reductions to unrecognized tax benefits from lapse of statutes of limitations

 

 

(610)

 

 

(154)

 

 

(176)

Unrecognized tax benefits at December 31

 

$

4,150

 

$

4,515

 

$

4,631

 

As of December 31, 2016 we provided for a liability of $4.2 million for unrecognized tax benefits related to various federal, foreign and state income tax matters, which was included in long-term deferred tax liabilities and other long-term liabilities, compared with a liability of $4.5 million for unrecognized tax benefits as of December 31, 2015. We have elected to classify interest and penalties related to uncertain income tax positions in income tax expense. As of December 31, 2016, we have accrued $2.0 million for potential payment of interest and penalties, compared with an accrual of $2.5 million as of December 31, 2015.

As of December 31, 2016, 2015 and 2014, the total amount of unrecognized tax benefits that, if recognized, would affect the effective tax rate are $0.5 million, $0.5 million and $0.7 million, respectively. In 2017, we anticipate we will release less than $0.4 million of accruals of uncertain tax positions as the statute of limitations related to these liabilities will lapse in 2017.

The Company files a consolidated U.S. federal income tax return. Currently, we are not under examination for income tax purposes by any taxing jurisdiction. A presentation of open tax years by jurisdiction is as follows:

 

 

 

 

 

 

 

 

 

 

Tax Jurisdiction

  

Examination in Progress

  

Open Tax Years for Examination

United States

 

None

 

2006 to Present

Mexico

 

None

 

2011 to Present

China

 

None

 

2008 to Present

The Netherlands

 

None

 

2013 to Present

 

 

NOTE 10—UNCOMPLETED CONTRACTS

We enter into contracts that allow for periodic billings over the contract term. At any point in time, each project under construction could have either costs and estimated earnings in excess of billings or billings in excess of costs and estimated earnings.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

(in thousands)

 

2016

  

2015

Costs incurred on uncompleted contracts

 

$

239,888

 

$

462,886

Earnings recognized on uncompleted contracts

 

 

26,354

 

 

55,985

Total

 

 

266,242

 

 

518,871

Less—billings to date

 

 

(220,300)

 

 

(483,478)

Net

 

$

45,942

 

$

35,393

Costs and estimated earnings in excess of billings

 

$

52,696

 

$

45,491

Billings in excess of costs and estimated earnings

 

 

(6,754)

 

 

(10,098)

Net

 

$

45,942

 

$

35,393

 

 

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

NOTE 11—DEBT

Revolving Credit Facility:  In February 2012, we entered into a $100.0 million Credit Facility (as amended or supplemented from time to time, the “Revolving Credit Facility”) with Wells Fargo Bank, National Association, as Administrative Agent, U.S. Bank National Association, as Syndication Agent and the various lending institutions party thereto. In December, 2013, the Revolving Credit Facility was increased from $100.0 million to $150.0 million. We have given a first priority lien on substantially all of our assets as security for our Revolving Credit Facility, which had a maturity date of May 15, 2017.

As of December 31, 2016 and 2015, we had $45.3 million and $70.0 million, respectively, of revolving credit loans outstanding under our Revolving Credit Facility and we were not in compliance with the financial and certain other covenants.

As a result of our non-compliance under the Revolving Credit Facility, on a number of occasions in 2016 and 2015, we entered into amendments and limited waivers with respect to the Revolving Credit Facility. These amendments and limited waivers were in effect as of December 31, 2016. Pursuant to the terms of such amendments and limited waivers, the Revolving Credit Facility provided total commitments available to us of $67.0 million and, only allowed for borrowings up to a maximum of $51.8 million, exclusive of outstanding standby letters of credit and included other restrictions. The facility had a reduced revolving letter of credit facility of up to $13.5 million and it no longer provided access to multi-currency funds.

The Revolving Credit Facility included affirmative and negative covenants, including customary limitations on securing additional debt and liens and restrictions on transactions and payments, as well as the following two financial covenants:

·

Our maximum consolidated leverage ratio could not exceed specified limits. For these purposes, our consolidated leverage ratio on any date was the ratio of our consolidated funded indebtedness to our consolidated EBITDA for the four most recent quarters. The agreement defined EBITDA as net income (loss) plus interest expense, net of interest income, income taxes, stock-based compensation, and depreciation and amortization.

·

Our consolidated interest coverage ratio must be maintained at or above specified minimum levels. For these purposes, our consolidated interest coverage ratio was the ratio of (a) our consolidated EBITDA for the four most recent quarters to (b) our consolidated cash interest expense (consisting of all Global Power interest) for that period.

The following were considered defaults under the Revolving Credit Facility:

·

failure to comply with any of these financial covenants;

·

failure to comply with certain other customary affirmative or negative covenants;

·

failure to make payments when due;

·

becoming subject to insolvency proceedings; or

·

experiencing a change of control.

For these purposes, a change of control would occur if any one person or group obtained control of more than 25% ownership of the Company, unless they were an investor on February 21, 2012, in which case the ownership percentage would have needed to be more than 40% for a change of control to occur, or if continuing directors cease to constitute at least a majority of the members of our Board of Directors.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Based on the various waivers subsequent to December 31, 2016, we were subject to additional covenants, including the following:

·

Cash collateralizing extended letters of credit;

·

Providing weekly cash flow forecasts with certain restrictions on budgeted versus actual weekly cash disbursements; and

·

Meeting specified milestones related to the refinancing of our Revolving Credit Facility.

In the event of any such additional defaults, the participating banks had the right to restrict our ability to borrow additional funds under the Revolving Credit Facility, required that we immediately repay all outstanding loans with interest and required the cash collateralization of outstanding letter of credit obligations

As of December 31, 2016 and 2015, we required a waiver from our lenders for a breach of certain financial and non-financial covenants. Waivers were in effect until we refinanced our debt with Centre Lane in June 2017.

We were subject to interest rate changes on our LIBOR‑based borrowings under our Revolving Credit Facility.  During 2016, we borrowed $116.4 million on our Revolving Credit Facility, and we repaid $141.1 million. As of December 31, 2016, the outstanding principal balance of revolving credit loans on our Revolving Credit Facility was $45.3 million. As a result of the refinancing, the outstanding debt balance was classified as long-term debt on our consolidated balance sheet as of December 31, 2016. During 2015, we borrowed $58.0 million on our Revolving Credit Facility, and we repaid $33.0 million. As of December 31, 2015, the outstanding principal balance of revolving credit loans on our Revolving Credit Facility was $70.0 million, which was recorded as a long‑term liability on our consolidated balance sheets. The weighted‑average interest rate on those borrowings was 10.2% and 5.0% at December 31, 2016 and 2015, respectively.

As of December 31, 2016, there was a total of $9.9 million available, including $6.5 million of borrowing availability, under our Revolving Credit Facility. Our ability to access the maximum amount of availability was dependent upon certain conditions as defined in the Revolving Credit Facility. We pay an unused line fee of 0.75% pursuant to the terms of our Revolving Credit Facility.

Centre Lane Term Facility:  In June 2017, we entered into a 4.5-year senior secured term loan facility with an affiliate of Centre Lane Partners, LLC (“Centre Lane”) as Administrative Agent and Collateral Agent, and the other lenders from time to time party thereto (collectively, the “Lenders”). The Centre Lane Facility is governed by the terms of the Senior Security Credit Agreement, dated June 16, 2017 (the “Closing Date”), as amended by the Centre Lane First Amendment on August 17, 2017. While not a party to the Centre Lane Facility, entities associated with Wynnefield Capital, Inc., our largest equity investor, funded $6.0 million of the Centre Lane Facility. We used a portion of the proceeds under the Initial Centre Lane Facility to repay in full the outstanding balance under the Revolving Credit Facility. After payment of the Revolving Credit Facility and fees associated with both the Centre Lane Facility and the Centre Lane Amendment, net cash proceeds were $15.3 million.

The Initial Centre Lane Facility provides for an initial loan in an aggregate principal amount of up to $45.0 million, and the Centre Lane Amendment provides for a first-out loan of up to an additional aggregate principal amount of $10.0 million (the “First-Out Loan”). The Initial Centre Lane Facility has a maturity date of December 16, 2021. The First-Out Loan matures on September 30, 2018.

Borrowings under the Centre Lane Facility initially bear interest at LIBOR plus the sum of 9% per year, payable in cash, plus 10% payable in-kind (“PIK”) interest. Cash interest is payable monthly, and the PIK interest accrues to and increases the principal balance on a monthly basis. Starting on January 1, 2018, the PIK interest rate will increase to 15% per year unless we elect to make a prepayment on the principal of $25.0 million.

Our obligations under the Centre Lane Facility are guaranteed by all of our wholly owned domestic subsidiaries, subject to customary exceptions. Our obligations are secured by first priority security interests on substantially all of its assets

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

and those of our wholly owned domestic subsidiaries. This includes 100% of the voting equity interests of our domestic subsidiaries and certain specified foreign subsidiaries and 65% of the voting equity interests of other directly owned foreign subsidiaries, subject to customary exceptions.

We may voluntarily prepay the term loans at any time or from time to time, in whole or in part, in a minimum amount of $1 million of the outstanding principal amount, plus any accrued but unpaid interest on the aggregate amount of the term loans being prepaid, plus a prepayment premium.

Subject to certain exceptions, we must prepay an aggregate principal amount equal to 100% of our Excess Cash Flow (as defined in the Centre Lane Facility), minus the sum of all voluntary prepayments, within five business days after the date that is 90 days following the end of each fiscal year. The Centre Lane Facility also requires mandatory prepayment of certain amounts in the event we or our subsidiaries receive proceeds from certain events and activities, including, among others, asset sales, casualty events, the issuance of indebtedness and equity interests not otherwise permitted under the Centre Lane Facility, and the receipt of tax refunds or extraordinary receipts in excess of $500,000, plus, in certain instances, the applicable prepayment premium.

The Initial Centre Lane Facility requires payment of an annual administration fee of $25,000 and an upfront fee equal to 7% of the aggregate commitments provided under the Centre Lane Facility, which bears interest at a rate of LIBOR plus 19% annual PIK interest. The upfront fee is payable upon the earlier of maturity or the occurrence of certain events, including significant debt prepayments or asset sales that may occur prior to maturity. In addition to those fees, the Centre Lane Amendment also requires us to pay an upfront fee equal to 7% of the First-Out Loan commitments, which bears interest at the same rate as the initial upfront fee, and an exit fee equal to 7% of the aggregate outstanding principal amount of the First-Out Loan commitments, which is payable upon the maturity date of the First-Out Loan.

The Centre Lane Facility contains customary representations and warranties, as well as customary affirmative and negative covenants. The Centre Lane Facility contains covenants that may, among other things, limit our ability to incur additional debt, incur liens, make investments or capital expenditures, declare or pay dividends, engage in mergers, acquisitions and dispositions, engage in new lines of business or certain transactions with affiliates and change accounting policies or fiscal year.

The Centre Lane Facility also requires us to regularly provide financial information to the Lenders, as well as maintain certain total leverage ratios, fixed charge coverage ratios and minimum levels of liquidity. Financial covenant requirements begin on September 30, 2018.

Events of default under the Centre Lane Facility include, but are not limited to, a breach of any of financial covenants or any representations or warranties, failure to timely pay any amounts due and owing, the commencement of any bankruptcy or other insolvency proceeding, judgments in excess of certain acceptable amounts, the occurrence of a change in control, certain events related to ERISA matters and impairment of security interests in collateral or invalidity of guarantees or security documents.

If an event of default occurs, the Lenders may, among other things, declare all borrowings to be immediately due and payable, together with accrued interest and fees, and exercise remedies under the collateral documents related to the Centre Lane Facility.

European Credit Facility:  On June 13, 2008, Braden-Europe B.V., Global Power Professional Services Netherlands B.V. and Global Power Netherlands B.V. (collectively, the “Borrower”) entered into a new EUR 14,000,000 Credit Facility (as continued, amended or supplemented from time to time, the “ABN AMRO Credit Facility”) with ABN AMRO Bank N.V. (“Original ABN AMRO”). In 2010, Original ABN AMRO transferred its claims, rights and obligations under the ABN AMRO Credit Facility to a new entity also known as ABN AMRO Bank N.V. (“New ABN AMRO”), as confirmed by the Amendment to Existing Credit Agreement (the “Credit Agreement Amendment”), dated July 25, 2011, among the Borrower and New ABN AMRO. The Credit Agreement Amendment incorporated the standard ABN AMRO General Credit Provisions.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The ABN AMRO Credit Facility is a Euro-denominated facility with an overdraft facility of EUR 1,000,000 and a contingent liability facility of EUR 13,000,000. The Borrower's current interest rate is 5.95% per annum. The Borrower pays a facility fee of 0.25% per quarter. Proceeds of borrowings under the ABN AMRO Credit Facility may be used for the Borrower's business activities. The Borrower has, by a right of pledge, given a first priority lien on substantially all of its assets as security for the ABN AMRO Credit Facility. The three entities that comprise the Borrower are jointly and severally liable under the ABN AMRO Credit Facility.

The ABN AMRO Credit Facility imposes a number of covenant requirements on the Borrower. The Borrower’s tangible net worth must at all times represent at least 35% of Borrower’s adjusted balance sheet total. The adjusted balance sheet total is defined as total assets minus the sum of intangible assets, deferred tax assets, participating interests, receivables from shareholders and/or directors and shares held in the own company, as shown in the annual accounts, as well as any off-balance sheet guarantee exposure. The Borrower may not make profit distributions without the prior written consent of New ABN AMRO or if the Borrower's tangible net worth is less than 35% of the Borrower’s adjusted balance sheet total. The Borrower will have no current account with its mother or sister companies. The Borrower will inform New ABN AMRO in advance of any future guarantees. The Borrower's annual accounts shall be prepared in accordance with IASB standards. New ABN AMRO retains the right to revise the ABN AMRO Credit Facility and related security package if Global Power Professional Services Netherlands B.V. and Global Power Netherlands B.V. begin to conduct business outside the Netherlands. The Borrower is restricted from granting any second-ranking right of pledge to other parties.

As of December 31, 2016, no overdraft amounts were outstanding under this facility and we were in compliance with all covenants under the ABN AMRO Credit Facility.

Letters of Credit and Bonds:  In line with industry practice, we are often required to provide letters of credit, surety and performance bonds to customers. These letters of credit and bonds provide credit support and security for the customer if we fail to perform our obligations under the applicable contract with such customer.

The interest rate on letters of credit issued under the Revolving Credit Facility letter of credit sublimit was 8.5% per annum as of December 31, 2016. Should we need to borrow additional amounts against the Revolving Credit Facility, we would incur an interest rate of LIBOR or a specified base rate, plus in each case, an additional margin based on our consolidated leverage ratio. In connection with the refinancing of the Revolving Credit Facility, we are currently unable to obtain letters of credit.

As of December 31, 2016, our outstanding stand‑by letters of credit issued under the Revolving Credit Facility and the ABN AMRO facility were $11.8 million and $10.0 million, respectively. Currently, there are no amounts drawn upon these letters of credit. In addition, as of December 31, 2016, we had outstanding surety bonds on projects of $32.7 million.

Deferred Financing Costs:  Deferred financing costs are amortized over the terms of the related debt facilities using the effective yield method. Total interest expense associated with the amortization of deferred financing costs was $0.2 million, $0.3 million and $0.2 million for the years ended December 31, 2016, 2015 and 2014, respectively.

As of December 31, 2016 and December 31, 2015, we had unamortized deferred financing fees on our Revolving Credit Facility of less than $0.1 million and $0.3 million, respectively.

NOTE 12—EARNINGS PER SHARE

As of December 31, 2016, our 17,485,941 shares outstanding included certain shares totaling 36,073 of contingently issued but unvested restricted stock. As of December 31, 2015, our 17,261,276 shares outstanding included 68,501 of contingently issued but unvested restricted stock. Restricted stock is excluded from our calculations of basic weighted average shares outstanding, but their dilutive impact is included in the calculations of diluted weighted average shares outstanding.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Basic earnings per common share are calculated by dividing net income by the weighted average common shares outstanding during the period. Diluted earnings per common share are based on the weighted average common shares outstanding during the period, adjusted for the potential dilutive effect of common shares that would be issued upon the vesting and release of restricted stock awards and units.

Basic and diluted (loss) per common share are calculated as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands, except per share data)

  

2016

  

2015

  

2014

Net loss (basic and diluted):

 

 

 

 

 

 

 

 

 

Loss from continuing operations

 

$

(43,613)

 

$

(78,729)

 

$

(47,234)

Loss from discontinued operations

 

 

— 

 

 

— 

 

 

(1)

Net loss available to common shareholders

 

$

(43,613)

 

$

(78,729)

 

$

(47,235)

Basic loss per common share:

 

 

 

 

 

 

 

 

 

Weighted Average Common Shares Outstanding

 

 

17,348,286

 

 

17,151,810

 

 

17,005,589

Basic loss per common share from continuing operations

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

Basic loss per common share from discontinued operations

 

 

— 

 

 

— 

 

 

— 

Basic loss per common share

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

Diluted loss per common share:

 

 

 

 

 

 

 

 

 

Weighted Average Common Shares Outstanding

 

 

17,348,286

 

 

17,151,810

 

 

17,005,589

Effect of Dilutive Securities:

 

 

 

 

 

 

 

 

 

Unvested portion of restricted stock awards

 

 

— 

 

 

— 

 

 

— 

Warrants to purchase common stock

 

 

— 

 

 

— 

 

 

— 

Weighted Average Common Shares Outstanding Assuming Dilution

 

 

17,348,286

 

 

17,151,810

 

 

17,005,589

Diluted loss per common share from continuing operations

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

Diluted loss per common share from discontinued operations

 

 

— 

 

 

— 

 

 

— 

Diluted loss per common share

 

$

(2.51)

 

$

(4.59)

 

$

(2.78)

 

The weighted-average number of shares outstanding used in the computation of basic and diluted earnings/loss per share does not include the effect of the following potential outstanding common stock. The effects of these potentially outstanding shares were not included in the calculation of diluted earnings/loss per share because the effect would have been anti-dilutive:

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

2016

  

2015

  

2014

Unvested service-based restricted stock awards

108,784

 

497,371

 

185,412

Unvested performance and market based restricted stock awards

931,253

 

189,429

 

271,717

Stock options

122,000

 

122,000

 

— 

 

 

NOTE 13—STOCK‑BASED COMPENSATION

Description of the Plans

We have two equity incentive plans: the 2011 Equity Incentive Plan (the “2011 Plan”) and the 2015 Equity Incentive Plan (the “2015 Plan”). In May 2015, the 2011 Plan terminated upon receiving shareholder approval for the 2015 Plan. The remaining authorized but unissued shares from the 2011 Plan will be available to service the outstanding awards from the 2011 Plan. The 2015 Plan allows for the issuance of up to 1,000,000 shares of stock awards to our employees and directors in the form of a variety of instruments including, stock options, restricted stock, restricted share units, stock appreciation rights and other share-based awards. The 2015 Plan also allows for cash-based awards. Generally, all participants who voluntarily terminate their employment with the Company forfeit 100% of all unvested equity awards. Persons whom are terminated without cause, or in some cases leave for good reason, are entitled to proportionate vesting. Time-based proportionate vested shares are accelerated and distributed upon their termination date. Proportionate

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

performance-based and market-based restricted shares remain categorized as unvested pending final conclusion on the achievement of the related awards. As of December 31, 2016, we had 28,362 shares available for grant under the 2015 Plan.

Additionally, during 2016 and 2015, we granted 139,700 and 140,000 restricted stock units to certain executives outside of the 2015 Plan. The terms and conditions of these grants are similar in terms and conditions of those under the equity incentive plans described above. All amounts and units described below include these awards.

Total stock‑based compensation expense during the years ended December 31, 2016, 2015 and 2014 was $2.4 million, $3.7 million and $3.1 million, respectively, with no related excess tax benefit recognized. As of December 31, 2016, total unrecognized compensation expense related to all unvested restricted stock and unit awards for which terms and conditions are known totaled $3.2 million, which is expected to be recognized over a weighted average period of 1.27 years. The fair value of shares that vested during 2016, 2015 and 2014 based on the stock price at the applicable vesting date was $0.9 million, $2.6 million and $2.0 million, respectively. The weighted average grant date fair value of our restricted stock units was $2.78, $9.06 and $20.94 for the years ended December 31, 2016, 2015 and 2014, respectively.

Service-Based Restricted Stock and Unit Awards:  Our service-based restricted stock and unit awards are valued at the quoted market price of our common stock as of the date of grant and vest over a range of two to four years. In August 2016, the Board of Directors approved a modification to all performance-based and all market-based awards granted in 2014, to convert them to service-based awards and to extend their vesting date by nine months. Additionally, in December 2015, the Board of Directors approved a modification to all performance-based awards granted in 2015 to convert them to service-based awards, that vest in equal installments over a three year period. The performance-based awards granted in 2015 and 2014 and the market-based awards granted in 2014 had previously been determined to not be likely to vest. The modification of the 2014 awards resulted in a $0.3 million reduction in stock compensation expense for the year ended December 31, 2016. Given the short period of time between the grant date and the modification date, the modification of the 2015 awards had an immaterial impact on stock compensation expense for the year ended December 31, 2015.

A summary of the service-based restricted stock and unit activity for the year ended December 31, 2016 is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

  

Weighted-Average

 

 

 

 

Grant Date

 

 

Shares

 

Fair Value per Share

Unvested restricted stock at December 31, 2015

 

610,756

 

$

9.33

Granted

 

105,000

 

 

1.68

Converted to service-based

 

56,999

 

 

4.18

Vested

 

(358,079)

 

 

7.79

Forfeited

 

(95,954)

 

 

8.59

Unvested restricted stock at December 31, 2016

 

318,722

 

$

6.48

 

Performance-Based Restricted Stock and Unit Awards:  We grant restricted stock and unit awards that vest upon reaching certain performance targets, which have historically been Company operating income and other financial metrics. Such awards generally cliff vest at the end of a three-year period from the date of grant. Therefore, these cliff vesting awards will be considered unvested until the end of the three-year vesting period. If the minimum target set forth in the award agreement is not met, none of the shares will vest and any compensation expense previously recognized will be reversed. The actual number of shares that will ultimately vest is dependent upon achieving the performance condition or other conditions set forth in the award agreement. We recognize stock-based compensation expense related to performance awards based upon our determination of the likelihood of achieving the performance target or targets at each reporting date, net of estimated forfeitures. No performance-based restricted stock units were granted in 2016.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The following table summarizes performance-based restricted stock and unit award activity for the year ended December 31, 2016:

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

  

Weighted-Average

 

 

 

 

Grant Date

 

 

Shares

 

Fair Value per Share

Unvested restricted stock at December 31, 2015

 

98,605

 

$

17.75

Granted

 

— 

 

 

— 

Converted to service-based

 

(28,513)

 

 

4.18

Vested

 

— 

 

 

— 

Forfeited

 

(49,598)

 

 

18.86

Unvested restricted stock at December 31, 2016

 

20,494

 

$

19.82

 

As of December 31, 2016, we did not expect any of the above 20,494 shares of unvested performance-based restricted stock unit awards to ultimately vest.

Market-Based Restricted Stock Unit Awards:  We granted 926,200 market‑based restricted stock units during the year ended December 31, 2016. Subject to the awardee’s continued employment with the Company, 50% of these restricted stock unit awards shall vest on the later to occur of (i) March 30, 2017 or (ii) the achievement of the Company’s long-term share price performance goal (“LT Share Price Goal”), and the second 50% shall vest on the later to occur of (i) March 30, 2018 or (ii) the achievement of the Company’s LT Share Price Goal. The LT Share Price Goal shall be deemed met if the Company’s per share stock price equals or exceeds $5.50 for any consecutive 30 trading days during the 5-year period ended August 5, 2021. We reverse previously recognized compensation cost for market-based restricted stock unit awards only if the requisite service is not rendered. No such awards were granted in 2015.

The following table summarizes market-based restricted stock unit award activity for the year ended December 31, 2016:

 

 

 

 

 

 

 

  

 

  

Weighted-Average

 

 

 

 

Grant Date

 

 

Shares

 

Fair Value per Share

Unvested restricted stock at December 31, 2015

 

90,824

 

$

20.43

Granted

 

926,200

 

 

2.91

Vested

 

— 

 

 

— 

Converted to service-based

 

(28,486)

 

 

4.18

Forfeited

 

(65,779)

 

 

15.92

Unvested restricted stock at December 31, 2016

 

922,759

 

$

3.34

 

We estimate the fair value of our market‑based restricted stock unit awards on the date of grant using a Monte Carlo simulation valuation model. This pricing model uses multiple simulations to evaluate the likelihood of achieving the market conditions set forth in the award agreements. Expense is only recorded for the number of market‑based restricted stock unit awards granted, net of estimated forfeitures. The assumptions used to estimate the fair value of market‑based restricted stock unit awards granted during 2016 were as follows:

 

 

 

 

 

 

 

 

 

 

Expected term (years)

  

  

1.5

 

Expected volatility

 

 

39.50

%

Expected dividend yield

 

 

0.00

%

Risk-free interest rate

 

 

1.13

%

Weighted-average grant date fair value

 

$

2.91

 

 

Liability-Classified Awards:  During 2016, we granted service-based restricted stock unit awards with an initial value of $1.7 million. These service-based awards have the potential to be settled in cash or other assets, if our shareholders do not approve additional shares under our 2015 Plan. Therefore, these restricted stock unit awards are being accounted for

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

using liability accounting. These restricted stock unit awards shall vest on March 30, 2018, subject to the awardee’s continued employment with the Company. At December 31, 2016, we recorded a liability of $0.3 million related to these awards and is included in the "Other long-term liabilities" line item on our December 31, 2016 Consolidated Balance Sheet. Compensation costs associated with these awards are predominantly recorded in the "General and administrative expenses" line item in our 2016 Consolidated Statement of Operations.

Stock Options:  During 2015, we granted a stock option to purchase 122,000 shares of our common stock to our CEO at an exercise price of $13.85 per share. The option provides for immediate vesting of 32,000 shares, with the remaining 90,000 vesting ratable over a ten month period beginning in June 2015 and has a five year term. This is the only stock option grant we have made to date.

The following table summarizes stock option activity for the year ended December 31, 2016: 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

  

Weighted-Average

  

Weighted-Average

 

 

Options

 

Exercise Price

 

Remaining Contract Term

Outstanding at December 31, 2015

 

122,000

 

$

13.85

 

 

 

Granted

 

— 

 

 

— 

 

 

 

Exercised

 

— 

 

 

— 

 

 

 

Forfeited

 

— 

 

 

— 

 

 

 

Outstanding at December 31, 2016

 

122,000

 

$

13.85

 

 

3.625 years

Exercisable at December 31, 2016

 

122,000

 

$

13.85

 

 

3.625 years

 

The weighted average fair value of the stock option on the date of the grant was $2.58. The fair value of each stock option is estimated on the date of grant using the Black-Scholes option pricing model. The exercise price of the options is based on the fair market value of the common shares on the date of grant. No options were granted during 2016 or 2014. The following assumptions were used for the options included in the table above:

 

 

 

 

 

 

 

 

 

  

December 31,

 

 

2015

Expected life

 

2.7 years

 

Volatility

 

33.60

%

Dividend yield

 

2.60

%

Risk-free interest rate

 

0.83

%

 

Expected life was determined based on an analysis of historical exercise activity. Risk-free rate of return is a rate of a similar term U.S. Treasury zero coupon bond. Volatility was determined based on the weighted average of historical volatility of our common shares and the daily closing prices from comparable public companies. Dividend yield was determined based on our expected annual dividend and the market price of our common stock on the date of grant.  

Cash flows resulting from excess tax benefits are classified as part of cash flows from financing activities. Excess tax benefits are realized tax benefits from tax deductions for vested restricted stock and unit awards, and exercised options in excess of the deferred tax asset attributable to stock compensation costs for such equity awards. The Company realized no excess tax benefits for the years ended December 31 2016, 2015, and 2014 due to the use of NOL carryforwards.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

NOTE 14—EMPLOYEE BENEFIT PLANS

Defined Contribution Plan:  We maintain a 401(k) plan covering substantially all of our U.S. employees. Expense for our 401(k) plan during the years ended December 31, 2016, 2015 and 2014 was $1.7 million, $2.0 million and $1.4 million, respectively.

Multiemployer Pension Plans:    During 2016, we contributed to approximately 60 multiemployer pension plans throughout the U.S. and historically, we have contributed to over 150 union sponsored multiemployer pension plans throughout the U.S. under the terms of collective‑bargaining agreements that cover our union‑represented employees. The risks of participating in these multiemployer pension plans are different from single‑ employer pension plans primarily in the following aspects:

1.

Assets contributed to the multiemployer pension plan by one employer may be used to provide benefits to employees of other participating employers.

2.

If a participating employer stops contributing to the multiemployer pension plan, the unfunded obligations of the multiemployer pension plan may be borne by the remaining participating employers.

3.

If we choose to stop participating in some of our multiemployer pension plans, we may be required to pay those plans an amount based on the underfunded status of the multiemployer pension plan, referred to as a withdrawal liability.

Our participation in these multiemployer pension plans during the year ended December 31, 2016 is outlined in the following table. All information in the tables is as of December 31, of the relevant year, or 2016, unless otherwise stated. The “EIN/Pension Plan Number” column provides the Employer Identification Number (“EIN”) and the three‑digit plan number, if applicable. Unless otherwise noted, the most recent Pension Protection Act zone status available during 2016 and 2015 is for the plans’ fiscal year‑end as of 2016 and 2015, respectively. The zone status is based on information that we received from the plan and is certified by the plan’s actuary. Among other factors, plans in the red zone are generally less than 65 percent funded, plans in the yellow zone are greater than 65 percent funded and less than 80 percent funded, and plans in the green zone are at least 80 percent funded. The “Rehab Plan Pending/Implemented” column indicates plans for which a financial improvement plan (“FIP”) or a rehabilitation plan (“RP”) is either pending or has been implemented. The last column lists the expiration date of the collective‑bargaining agreement to which the plans are subject.

 

 

 

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Certain plans have been aggregated in the “All Others” line in the following table, as the contributions to each of these individual plans are not material.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

Expiration

  

 

 

 

 

 

Pension

 

 

 

 

 

 

 

 

 

 

 

Date of

 

 

 

 

 

 

Protection Act

 

Rehab Plan status

 

($ in thousands)

 

 

 

Collective

 

 

 

 

EIN/Pension

 

Zone Status

 

Pending/

 

Contributions by Global Power

 

Surcharge

 

Bargaining

 

 

Pension Fund

 

Plan Number

 

2016

 

2015

 

2014

 

Implemented

 

2016

 

2015

 

2014

 

Imposed

 

Agreement

 

Notes

AFL-AGC Building Trades Pension Fund

 

63-6055108 001

 

Green

 

Green

 

Green

 

 

 

15

 

224

 

135

 

 

 

Varies through 07/31/20

 

2

Asbestos Workers Local No. 55 Pension Fund

 

63-0474674 001

 

0

 

Green

 

Endangered

 

 

 

1

 

125

 

96

 

 

 

Varies through 07/31/20

 

2

Boilermaker-Blacksmith National Pension Trust

 

48-6168020 001

 

Endangered

 

Endangered

 

Endangered

 

FIP 09/16/2010

 

1,113

 

2,729

 

3,227

 

 

 

Multiple Agreements

 

1, 5

Bricklayers and Allied Craftworkers Local #2 Albany, NY Pension Fund

 

14-6075802 001

 

Green

 

Green

 

Green

 

 

 

0

 

0

 

2

 

 

 

08/17/16 - Automatic Renewal

 

1

Carpenters Pension Trust Fund - Detroit & Vicinity

 

38-6242188 001

 

Critical

 

Critical

 

Critical

 

Rehab Plan 09/27/08

 

0

 

0

 

13

 

 

 

 

 

11

Central New York Laborers Pension Fund

 

15-6016579 001

 

Critical

 

Critical

 

Critical

 

Rehab Plan 11/05/10

 

0

 

0

 

224

 

 

 

08/17/16 - Automatic Renewal

 

1

Central New York Painters & Allied Trades Pension Fund

 

51-6079700 001

 

Critical

 

Critical

 

Critical

 

Rehab Plan 10/03/08

 

1

 

4

 

14

 

 

 

08/17/16 - Automatic Renewal

 

1

Central Pension Fund of the IUOE and Participating Employers

 

36-6052390 001

 

Green

 

Green

 

Green

 

 

 

143

 

253

 

378

 

 

 

Multiple Agreements

 

5

Central States, Southeast, and Southwest  Pension Fund

 

36-6044243 001

 

Critical & Declining

 

Critical & Declining

 

Critical

 

Rehab Plan 03/25/08

 

107

 

252

 

248

 

 

 

Multiple Agreements

 

5

Chicago Painters & Decorators Pension Fund

 

51-6030238 001

 

Green

 

Green

 

Green

 

 

 

0

 

0

 

9

 

 

 

10/02/16 - Automatic Renewal

 

7

Empire State Carpenters Pension Plan

 

11-1991772 001

 

Green

 

Green

 

Green

 

 

 

0

 

8

 

158

 

 

 

08/17/16 - Automatic Renewal

 

1

Excavators Union Local 731 Pension Fund

 

13-1809825 001

 

Green

 

Green

 

Green

 

 

 

273

 

217

 

210

 

 

 

06/30/16

 

10

IBEW Local 1579 Pension Plan

 

58-1254974 001

 

Green

 

Green

 

Green

 

 

 

459

 

700

 

710

 

 

 

Varies through 07/31/20

 

2

IBEW Local 43 & Electrical Contractors Pension

 

16-6153389 001

 

Green

 

Endangered

 

Endangered

 

FIP 05/24/12

 

0

 

0

 

61

 

 

 

08/17/16 - Automatic Renewal

 

1

IBEW Local Union No. 1392 Pension Fund

 

35-6244875 001

 

Green

 

Green

 

Green

 

 

 

0

 

0

 

0

 

 

 

 

 

6

Insulators Local No. 96 Pension Plan

 

58-6110889 002

 

Endangered

 

Endangered

 

Endangered

 

FIP 01/01/11

 

24

 

170

 

258

 

 

 

Varies through 07/31/20

 

2

Iron Workers District Council of Tennessee Valley & Vicinity Pension Plan

 

62-6098036 001

 

0

 

Green

 

Green

 

 

 

234

 

261

 

93

 

 

 

11/30/16 - Automatic Renewal

 

3

Iron Workers Local No. 16 Pension Fund

 

52-6148924 001

 

Critical & Declining

 

Critical & Declining

 

Critical

 

Rehab Plan 03/2012

 

0

 

0

 

0

 

 

 

10/02/16 - Automatic Renewal

 

9

 

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

Expiration

  

 

 

 

 

 

Pension

 

 

 

 

 

 

 

 

 

 

 

Date of

 

 

 

 

 

 

Protection Act

 

Rehab Plan status

 

($ in thousands)

 

 

 

Collective

 

 

 

 

EIN/Pension

 

Zone Status

 

Pending/

 

Contributions by Global Power

 

Surcharge

 

Bargaining

 

 

Pension Fund

 

Plan Number

 

2016

 

2015

 

2014

 

Implemented

 

2016

 

2015

 

2014

 

Imposed

 

Agreement

 

Notes

IUPAT Industry Pension Plan

 

52-6073909 001

 

Endangered

 

Endangered

 

Endangered

 

FIP 04/02/09

 

1,374

 

1,550

 

1,438

 

 

 

Multiple Agreements

 

5

Laborers National Pension Fund

 

75-1280827 001

 

Green

 

Green

 

Green

 

 

 

466

 

1,025

 

1,292

 

 

 

Multiple Agreements

 

5

Local 73 Retirement Fund

 

15-6016577 001

 

Critical

 

Critical

 

Critical

 

Rehab Plan 10/12/10

 

0

 

5

 

276

 

 

 

08/17/16 - Automatic Renewal

 

1

National Asbestos Workers Pension Plan

 

52-6038497 001

 

Critical

 

Critical

 

Critical

 

Rehab Plan 09/30/10

 

1,548

 

2,065

 

1,438

 

 

 

Multiple Agreements

 

5

National Electrical Benefits Fund

 

53-0181657 001

 

Green

 

Green

 

Green

 

 

 

365

 

945

 

477

 

 

 

Multiple Agreements

 

5

New York State Teamsters Conference Pension & Retirement Fund

 

16-6063585 074

 

Critical & Declining

 

Critical

 

Critical

 

Rehab Plan 05/06/10

 

0

 

0

 

18

 

 

 

08/17/16 - Automatic Renewal

 

1

Northwest Sheet Metal Workers Pension Trust

 

91-6061344 001

 

Green

 

Green

 

Green

 

 

 

31

 

104

 

30

 

 

 

11/01/16 - Automatic Renewal

 

4

Plumbers & Pipefitters National Pension Fund

 

52-6152779 001

 

Endangered

 

Endangered

 

Endangered

 

FIP 04/2010

 

496

 

866

 

609

 

 

 

Multiple Agreements

 

5

Plumbers & Steamfitters Local No. 150 Pension Fund

 

58-6116699 001

 

Green

 

Green

 

Endangered

 

 

 

98

 

168

 

415

 

 

 

Varies through 07/31/20

 

2

Plumbers & Steamfitters Local Union No. 43 Pension Fund

 

62-6101288 001

 

Green

 

Green

 

Green

 

 

 

295

 

861

 

251

 

 

 

11/30/16 - Automatic Renewal

 

3

Sheet Metal Workers Local No. 177 Pension Fund

 

62-6093256 001

 

Green

 

Green

 

Green

 

 

 

51

 

91

 

69

 

 

 

11/30/16 - Automatic Renewal

 

3

Sheet Metal Workers' National Pension Fund

 

52-6112463 001

 

Endangered

 

Endangered

 

Endangered

 

FIP 03/01/14

 

232

 

540

 

423

 

 

 

Multiple Agreements

 

5

Southern Ironworkers Pension  Plan

 

59-6227091 001

 

Green

 

Green

 

Green

 

 

 

71

 

211

 

244

 

 

 

Varies through 07/31/20

 

2

Tri-State Carpenters & Joiners Pension Trust Fund

 

62-0976048 001

 

Endangered

 

Endangered

 

Critical

 

Rehab Plan 2011

 

522

 

1,236

 

1,146

 

 

 

11/30/16 - Automatic Renewal

 

3

Pipe Trades Services of MN Pension Plan

 

41-6131800 001

 

Green

 

Green

 

Green

 

 

 

0

 

153

 

0

 

 

 

08/01/16 - Automatic Renewal

 

8

Upstate New York Engineers Benefit Funds

 

15-0614642 001

 

Critical

 

Critical

 

Critical

 

Rehab Plan 06/07/10

 

0

 

0

 

26

 

 

 

08/17/16 - Automatic Renewal

 

1

Washington State Plumbing & Pipefitting Industry Pension Plan

 

91-6029141 001

 

Green

 

Green

 

Green

 

 

 

47

 

251

 

33

 

 

 

11/01/16 - Automatic Renewal

 

4

Washington-Idaho Laborers-Employers Pension Trust

 

91-6123988 001

 

Green

 

Green

 

Green

 

 

 

47

 

204

 

41

 

 

 

11/01/16 - Automatic Renewal

 

4

Washington-Idaho-Montana Carpenters-Employers Retirement Fund

 

91-6123987 001

 

Endangered

 

Endangered

 

Endangered

 

FIP 03/05/12

 

85

 

524

 

99

 

 

 

11/01/16 - Automatic Renewal

 

4

Western States Insulators and Allied Workers Pension

 

51-0155190 001

 

Green

 

Green

 

Green

 

 

 

22

 

143

 

26

 

 

 

11/01/16 - Automatic Renewal

 

4

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

All Others

 

 

 

 

 

 

 

 

 

 

 

605

 

534

 

291

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8,725

 

16,419

 

14,478

 

 

 

 

 

 


(1)

We were listed in the multiemployer plan’s Form 5500 as providing more than 5% of total contributions for the plan year ended in 2015.

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GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(2)

Defined Benefit Plans for Unions employed through the Southern Company Power House Maintenance Agreement. The Southern Company PHMA expires July 31, 2020. The individual Union CBA range from 1 to 3 years in duration.

(3)

Defined Benefit Plans for Unions employed through the TVA PMMA and Other Agreements. The TVA Labor Agreements are annual agreements that automatically renew each year.

(4)

Defined Benefit Plans for Unions employed through the GPPMA agreement for Columbia Generating Station. The GPPMA Agreements are annual agreements that automatically renew each year.

(5)

Regional and National Defined Benefit Funds for multiple unions employed under different labor agreements.

(6)

IBEW Local 1392 Pension is listed because Koontz-Wagner is responsible for more than 5.00% of the Funds payments. WPS / WSS do not employ members of Local 1392.

(7)

The reduction in Pension contributions for the Chicago Painters & Decorators Pension is a result of the loss of the Exelon Nuclear contract that included the Braidwood and Dresden Nuclear Plants.

(8)

Defined Benefit Plan for Union employed at Monticello Nuclear Plant through the Excel Contract.

(9)

Defined Benefit Plan for Union employed under GPPMA agreement at Peach Bottom Nuclear Plant.

(10)

Defined Benefit Plan for Union employed at Con Ed sites.

(11)

Defined Benefit Plan for Individual working outside of plan jurisdiction.

(12)

We did not pay a surcharge for any fund last year that was in Critical Status and had not negotiated a preferred schedule. We do pay a surcharge/assessment on some funds under the CBA preferred schedule.

 

 

 

 

F-37


 

Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

These funds include the National Asbestos Workers Pension, the Southern Ironworkers Pension and the Asbestos Workers Local 55 Pension listed above.

Employees covered by multiemployer pension plans are hired for project‑based building and construction purposes. Our participation level in these plans varies as a result.

We believe that our responsibility for potential withdrawal liabilities associated with participating in multiemployer plans is limited because the building and construction trades exemption should apply to the substantial majority of our plan contributions. However, pursuant to the Pension Protection Act of 2006 and other applicable laws, we are also exposed to other potential liabilities associated with plans that are underfunded. As of December 31, 2016, we had been notified that certain pension plans were in critical funding status. Currently, certain plans are developing, or have developed, a rehabilitation plan that may call for a reduction in participant benefits or an increase in future employer contributions. Therefore, in the future, we could be responsible for potential surcharges, excise taxes and/or additional contributions related to these plans. Additionally, market conditions and the number of participating employers remaining in each plan may result in a reorganization, insolvency or mass withdrawal that could materially affect the funded status of multiemployer plans and our potential withdrawal liability, if applicable. We continue to actively monitor, assess and take steps to limit our potential exposure to any surcharges, excise taxes, additional contributions and/or withdrawal liabilities. However, we cannot, at this time, estimate the full amount, or even the range, of this potential exposure.

NOTE 15—COMMITMENTS AND CONTINGENCIES

Litigation and Claims:  We are from time to time party to various lawsuits, claims and other proceedings that arise in the ordinary course of our business. With respect to all such lawsuits, claims and proceedings, we record a reserve when it is probable that a liability has been incurred and the amount of loss can be reasonably estimated. We do not believe that the resolution of any currently pending lawsuits, claims and proceedings, either individually or in the aggregate, will have a material adverse effect on our financial position, results of operations or liquidity. However, the outcomes of any currently pending lawsuits, claims and proceedings cannot be predicted, and therefore, there can be no assurance that this will be the case.

A putative shareholder class action, captioned Budde v. Global Power Equipment Group Inc. , is pending in the U.S. District Court for the Northern District of Texas naming Global Power Equipment Group Inc. and certain former officers as defendants. This action and another action were filed in May and June of 2015, and in July of 2015 the court consolidated the two actions. On May 1, 2017, the lead plaintiff filed a second consolidated amended complaint that names the Company and three of our former officers as defendants. It alleges violations of the federal securities laws arising out of matters related to the Company’s restatement of certain financial periods and claims that the defendants made material misrepresentations and omissions of material fact in certain public disclosures during the putative class period in violation of Sections 10(b) and 20(a) of the Securities Exchange, and Rule 10b-5, as promulgated thereunder. The plaintiffs seek class certification on behalf of persons who acquired our stock between September 7, 2011 and May 6, 2015, monetary damages of “more than $200   million” on behalf of the putative class and an award of costs and expenses, including attorneys’ fees and experts’ fees. We intend to defend against this action. On June 26, 2017, the Company and the individual defendants filed a motion to dismiss the complaint. On August 23, 2017, the lead plaintiff filed its opposition to that motion. Defendants have until September 22, 2017 to file a reply in further support of their motion. Litigation is subject to many uncertainties and the outcome of this action is not predictable with assurance. At this time, we are unable to predict the possible loss or range of loss, if any, associated with the resolution of this litigation, or any potential effect such may have on the Company or its business or operations.

The Division of Enforcement of the SEC is conducting a formal investigation into possible securities law violations by Global Power relating to disclosures we made concerning certain financial information, including our cost of sales and revenue recognition, as well as related accounting issues. We are cooperating with the SEC in its investigation, including through the production of documents to, and the sharing of information with, the SEC Enforcement Staff. At this time, we cannot predict the outcome or the duration of the SEC investigation or any other legal proceedings or any enforcement actions or other remedies that may be imposed on us arising out of the SEC investigation.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

A former operating unit of Global Power has been named as a defendant in a limited number of asbestos personal injury lawsuits. Neither we nor our predecessors ever mined, manufactured, produced or distributed asbestos fiber, the material that allegedly caused the injury underlying these actions. The bankruptcy court’s discharge order issued upon our emergence from bankruptcy in January 2008 extinguished the claims made by all plaintiffs who had filed asbestos claims against us before that time. We also believe the bankruptcy court’s discharge order should serve as a bar against any later claim filed against us, including any of our subsidiaries, based on alleged injury from asbestos at any time before emergence from bankruptcy. In any event, in all of the asbestos cases finalized post‑bankruptcy, we have been successful in having such cases dismissed without liability. Moreover, during 2012, we secured insurance coverage that will help to reimburse the defense costs and potential indemnity obligations of our former operating unit relating to these claims. We intend to vigorously defend all currently active actions, all without liability, and we do not anticipate that any of these actions will have a material adverse effect on our financial position, results of operations or liquidity. However, the outcomes of any legal action cannot be predicted and, therefore, there can be no assurance that this will be the case.

Contingency:  During 2014, we entered into an agreement with a partner in connection with a power plant equipment installation project. The agreement contains certain performance liquidated damage clauses in favor of the customer. While we believe our performance in the project met our direct contractual obligations, we nonetheless have joint and several liability for other aspects of the overall project performance. Therefore, it is possible, though unlikely, that we will not incur any liability for performance related issues under the contract. We currently estimate that the most likely range of potential liability arising from the contractual provisions described above will be between $4.9 million to $31.3 million. The maximum liability under the terms of the agreement is $33.0 million less the $1.7 million in liquidated damages that we have already incurred. The minimum liability per the agreement is 20 percent of the total contract value less the $1.7 million in liquidated damages that we have already incurred. Because we do not believe any amount in that $4.9 million to $31.3 million range is a better estimate than any other amount, we have accrued the minimum amount in the range as of December 31, 2016.

Warranty :  A reconciliation of the changes to our warranty reserve is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

Balance at the beginning of the period

 

$

8,050

 

$

6,487

Provision for the period

 

 

2,445

 

 

8,972

Settlements made (in cash or in kind) for the period

 

 

(4,689)

 

 

(7,409)

Balance at the end of the period

 

$

5,806

 

$

8,050

 

Leases:  We lease equipment and facilities, which are non-cancellable and expire at various dates. Total rental expense for all operating leases during the years ended December 31, 2016, 2015 and 2014 was $7.7 million, $9.5 million and $7.7 million, respectively.

Future minimum annual lease payments under these non-cancellable operating leases as of December 31, 2016 are as follows:

 

 

 

 

 

 

 

 

(in thousands)

 

December 31,

2017

 

$

4,297

2018

 

 

3,864

2019

 

 

3,626

2020

 

 

3,092

2021

 

 

2,798

Thereafter

 

 

9,116

Total

 

$

26,793

 

None of the leases include contingent rental provisions.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Our annual lease expense differs from our future minimum rental payments as a result of month to month equipment leases to support our operations.

Sale-Leasebacks:  On December 22, 2016, we sold three of our manufacturing facilities in Franklin, Indiana, Auburn, Massachusetts and Houston, Texas for $14.8 million and immediately leased the facilities back (the “sale-leaseback”) for a term of ten years. We recognized a loss of $2.0 million on the sale-leaseback of two of the manufacturing facilities, which was included in general and administrative expenses on our consolidated statement of operations for the year ended December 31, 2016. The sale-leaseback on the third manufacturing facility resulted in a gain of $2.2 million, of which, $2.0 million was deferred and is being recognized over the lease term. Of the $2.0 million deferred gain, $0.2 million was included in other current liabilities and $1.8 million was included in other long-term liabilities on our December 31, 2016 consolidated balance sheet. The net proceeds of $12.2 million were used to pay down our debt. As a result of the sale-leasebacks, we expect rental expense to increase $1.3 million per year. We subsequently sold the Franklin, Indiana facility in the Hetsco sale. See Note 20 – Subsequent Events for further details.

Insurance:  Certain of our subsidiaries are self‑insured for health, general liability and workers’ compensation up to certain policy limits. Insurance expense was $8.8 million, $8.6 million and $10.0 million for the years ended December 31, 2016, 2015 and 2014, respectively, and includes insurance premiums related to the excess claim coverage and claims incurred for continuing operations. The reserves as of December 31, 2016 and 2015 consist of estimated amounts unpaid for reported and unreported claims incurred. The accrual for our self-insured health risk retention as of December 31, 2016 and 2015 was $0.9 million and $0.6 million, respectively. We have provided $2.6 million in letters of credit for each of the years ended December 31, 2016 and 2015, respectively, as security for possible workers’ compensation claims.

Executive Severance: At December 31, 2016, we had outstanding severance arrangements with officers and senior management. Our maximum commitment under all such arrangements, which would apply if the employees covered by these arrangements were each terminated without cause, was $3.3 million at December 31, 2016.

NOTE 16—MAJOR CUSTOMERS AND CONCENTRATION OF CREDIT RISK

We have certain customers that represent more than 10 percent of our consolidated accounts receivable. The balance for these customers as a percentage of the consolidated accounts receivable is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

 

Customer

    

2016

    

2015

 

Siemens Energy, Inc.

 

17%

 

20%

 

General Electric Company

 

28%

 

14%

 

Southern Nuclear Operating Company

 

*

 

11%

 


*Less than 10%

 

We have certain customers that represent more than 10 percent of consolidated revenue. The revenue for these customers as a percentage of the consolidated revenue is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

Customer

  

2016

 

2015

 

2014

 

Southern Nuclear Operating Company

 

*

 

15%

 

17%

 

Tennessee Valley Authority

 

16%

 

22%

 

16%

 

General Electric Company

 

16%

 

13%

 

13%

 

Siemens Energy, Inc.

 

11%

 

12%

 

12%

 

All others

 

57%

 

38%

 

42%

 

Total

 

100%

 

100%

 

100%

 

*Less than 10%

 

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Customers for the Mechanical Solutions segment include original equipment manufacturers (“OEMs”), engineering, procurement and construction contractors, operators of power generation facilities and firms engaged across several process-related industries. Customers for the Electrical Solutions segment include OEMs, engineering, procurement and construction contractors, owners and operators of oil and gas pipelines and digital data storage and electrical industries. General Electric Company and Siemens Energy, Inc. are major customers for both our Mechanical Solutions and Electrical Solutions segments. Customers for the Services segment are varied, but include some major utility companies within the U.S. Our major customers vary over time due to the relative size and duration of our projects and customer outages. The Services segment customers include Southern Nuclear Operating Company (“Southern Nuclear”) and Tennessee Valley Authority. In August 2015, Southern Nuclear informed us that they would not extend the term of our existing maintenance and modification contract with our Services segment. In 2016, we recognized $23.9 million in revenue from Southern Nuclear, down from $89.0 million in 2015.

NOTE 17—OTHER SUPPLEMENTAL INFORMATION

Other current liabilities consist of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

(in thousands)

 

2016

  

2015

Accrued workers compensation

 

$

1,505

 

$

1,911

Accrued taxes

 

 

2,013

 

 

1,486

Accrued fabricator and other job cost

 

 

16,114

 

 

11,230

Accrued liquidated damages

 

 

4,400

 

 

6,574

Contract loss provision

 

 

5,336

 

 

834

Accrued legal and professional fees

 

 

1,456

 

 

992

Accrued interest expense

 

 

1,045

 

 

576

Derivative liabilities

 

 

748

 

 

— 

Other accrued expenses

 

 

1,298

 

 

5,002

Total

 

$

33,915

 

$

28,605

 

Other long‑term liabilities consist of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31,

(in thousands)

 

2016

  

2015

Uncertain tax liabilities

 

$

4,047

 

$

4,948

Deferred gain on sale-leaseback

 

 

1,795

 

 

— 

Other

 

 

1,684

 

 

1,132

Total

 

$

7,526

 

$

6,080

 

Exit Costs:  In 2016, we made the decision to cease operations at our leased manufacturing facility in Chattanooga, Tennessee and vacate the facility. The work performed at this facility was transferred to other facilities. The Chattanooga facility was part of our Electrical Solutions segment. Presently, we are seeking to sublease the facility; however, we may choose to pay a termination fee and terminate the lease. We expect to complete our exit activities related to this facility by June 2023, when the lease expires. In 2016, we recorded exit costs to cost of revenue related to subleasing the facility and terminating certain personnel.

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Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The following shows exit costs included in other long-term liabilities on our consolidated balance sheet:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands)

 

Subleasing Facility

 

Employee & Other Costs

December 31, 2015

 

$

— 

 

$

— 

New charges

 

 

872

 

 

244

Cash payments

 

 

(202)

 

 

(244)

December 31, 2016

 

$

670

 

$

— 

 

 

NOTE 18—SEGMENT INFORMATION

We follow ASC 280—Segment Reporting in determining our reportable segments. We concluded that, until January 2015, we operated in three reportable segments: Product Solutions, Nuclear Services and Energy Services.

In January 2015, we integrated our four operating segments into two reportable segments, structured around products and services, as part of our ongoing streamlining efforts. However, in re-evaluating our reportable segments as of the end of 2015, we determined that, while we continue to believe the projected long-term economic similarities between our Mechanical Solutions and Electrical Solutions operating units support aggregation into a single reportable segment, there has been disparity in the historical operating results to date between those two operating units. Therefore, we believe it is currently more meaningful to the reader to report segment information on those operating units separately and, therefore, concluded we have three reportable segments: Mechanical Solutions, Electrical Solutions and Services.

For all periods presented, we have excluded the results of operations of our discontinued operations. Management determined that operating income should be used as the best measure of segment performance.

The following table presents a reconciliation of revenue from segments to consolidated:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

  

2016

  

2015

  

2014

Mechanical Solutions - 3rd Party

 

$

112,022

 

$

122,593

 

$

145,910

Mechanical Solutions- Intersegment

 

 

— 

 

 

1,117

 

 

3,561

Mechanical Solutions - Total

 

 

112,022

 

 

123,710

 

 

149,471

Electrical Solutions - 3rd Party

 

 

75,559

 

 

93,057

 

 

77,280

Electrical Solutions- Intersegment

 

 

— 

 

 

— 

 

 

— 

Electrical Solutions - Total

 

 

75,559

 

 

93,057

 

 

77,280

Services - 3rd Party

 

 

231,007

 

 

373,353

 

 

315,863

Services - Intersegment

 

 

— 

 

 

— 

 

 

1,545

Services - Total

 

 

231,007

 

 

373,353

 

 

317,408

Intersegment Revenue Eliminations

 

 

— 

 

 

(1,117)

 

 

(5,106)

Consolidated

 

$

418,588

 

$

589,003

 

$

539,053

 

The following table presents reconciliation of depreciation and amortization from segments to consolidated:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Mechanical Solutions

 

$

2,313

 

$

3,002

 

$

2,829

Electrical Solutions

 

 

4,234

 

 

4,051

 

 

3,228

Services

 

 

1,925

 

 

3,158

 

 

3,148

Corporate

 

 

945

 

 

861

 

 

730

Consolidated

 

$

9,417

 

$

11,072

 

$

9,935

 

F-42


 

Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The following table presents a reconciliation of operating profit (loss) from segments to consolidated:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

(in thousands)

 

2016

  

2015

  

2014

Mechanical Solutions

 

$

2,230

 

$

(32,997)

 

$

5,116

Electrical Solutions

 

 

(8,739)

 

 

(27,542)

 

 

(3,623)

Services

 

 

 3

 

 

12,217

 

 

16,080

Corporate

 

 

(27,209)

 

 

(33,871)

 

 

(21,357)

Consolidated operating loss

 

 

(33,715)

 

 

(82,193)

 

 

(3,784)

 

 

 

 

 

 

 

 

 

 

Consolidated interest expense, net

 

 

8,398

 

 

4,484

 

 

1,820

Consolidated foreign currency gain

 

 

(217)

 

 

(1,014)

 

 

(65)

Consolidated other expense, net

 

 

15

 

 

12

 

 

34

Consolidated loss from continuing operations before income tax

 

$

(41,911)

 

$

(85,675)

 

$

(5,573)

 

The following table presents a reconciliation of assets from segments to consolidated:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

December 31,

(in thousands)

 

2016

  

2015

Mechanical Solutions

 

$

67,360

 

$

89,545

Electrical Solutions

 

 

38,435

 

 

68,747

Services

 

 

111,792

 

 

122,640

Corporate

 

 

15,255

 

 

20,098

Total consolidated assets

 

$

232,842

 

$

301,030


(1)

While corporate headquarters assets are not allocated to our reportable segments, the related depreciation expense is included in our allocation of selling, general and administrative expenses to our reportable segments.

Total assets in the Services segment as of December 31, 2016 included accounts receivable related to subcontracts with Westinghouse at Plant Vogtle Units 3 and 4 and V.C. Summer Units 2 and 3. On March 29, 2017, Westinghouse filed for Chapter 11 bankruptcy protection in the U.S. Bankruptcy Court, Southern District of New York.

We have filed mechanic’s liens in Georgia and South Carolina against the property of the owners of the projects for amounts due for pre-petition services rendered to Westinghouse.

On July 31, 2017, the V.C. Summer project was cancelled by the owner of the project and we are demobilizing from the site. We continue to provide services to the Plant Vogtle Units 3 and 4 project site at the request of the owner of the project. Based on agreements with the owners of both projects, we have been compensated by the owners for certain pre-petition services rendered to Westinghouse, and continue to be compensated for post-petition services. In addition to amounts due for post-petition services, total accounts receivable as of December 31, 2016 was $4.7 million. Based on our evaluation of available information, we expect the amounts outstanding for pre-petition services to be recoverable.

F-43


 

Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The following presents the Mechanical Solutions segment revenue by geographical region based on our operating locations. Products are often shipped to other geographical areas but revenue is listed in the region in which the revenue is recognized:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

 

2016

 

2015

 

2014

 

 

 

Revenue

  

 

Product

  

 

Revenue

  

 

Product

  

 

Revenue

  

 

Product

(in thousands)

 

 

Recognized In

 

 

Shipped To

 

 

Recognized In

 

 

Shipped To

 

 

Recognized In

 

 

Shipped To

United States

 

$

44,247

 

$

37,749

 

$

93,895

 

$

47,482

 

$

102,956

 

$

59,425

Canada

 

 

— 

 

 

93

 

 

— 

 

 

3,362

 

 

— 

 

 

3,239

Europe

 

 

65,454

 

 

3,026

 

 

27,789

 

 

3,716

 

 

39,624

 

 

12,683

Mexico

 

 

2,321

 

 

5,091

 

 

895

 

 

3,151

 

 

— 

 

 

675

Asia

 

 

— 

 

 

19,105

 

 

14

 

 

25,422

 

 

3,330

 

 

17,109

Middle East

 

 

— 

 

 

39,619

 

 

— 

 

 

32,510

 

 

— 

 

 

35,333

South America

 

 

— 

 

 

5,431

 

 

— 

 

 

498

 

 

— 

 

 

3,404

Other

 

 

— 

 

 

1,908

 

 

— 

 

 

6,452

 

 

— 

 

 

14,042

Total

 

$

112,022

 

$

112,022

 

$

122,593

 

$

122,593

 

$

145,910

 

$

145,910

 

The following presents the Electrical Solutions segment revenue by geographical region based on our operating locations. Products are often shipped to other geographical areas but revenue is listed in the region in which the revenue is recognized:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

 

2016

 

2015

 

2014

 

 

 

Revenue

  

 

Product

  

 

Revenue

  

 

Product

  

 

Revenue

  

 

Product

(in thousands)

 

 

Recognized In

 

 

Shipped To

 

 

Recognized In

 

 

Shipped To

 

 

Recognized In

 

 

Shipped To

United States

 

$

75,559

 

 

74,763

 

 

93,057

 

 

79,164

 

 

77,280

 

 

70,847

Canada

 

 

— 

 

 

281

 

 

— 

 

 

3,834

 

 

— 

 

 

1,089

Europe

 

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

— 

 

 

— 

Mexico

 

 

— 

 

 

492

 

 

— 

 

 

3,550

 

 

— 

 

 

1,000

Asia

 

 

— 

 

 

10

 

 

— 

 

 

1,776

 

 

— 

 

 

156

Middle East

 

 

— 

 

 

— 

 

 

— 

 

 

2,997

 

 

— 

 

 

3,136

South America

 

 

— 

 

 

13

 

 

— 

 

 

1,483

 

 

— 

 

 

256

Other

 

 

— 

 

 

— 

 

 

— 

 

 

253

 

 

— 

 

 

796

Total

 

$

75,559

 

$

75,559

 

$

93,057

 

$

93,057

 

$

77,280

 

$

77,280

 

The following presents the Services segment revenue by geographical region based on our operating locations. Services are sometimes performed in other geographical areas but revenue is listed in the region in which the revenue is recognized:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31,

 

 

2016

 

2015

 

2014

 

 

 

Revenue

  

 

Service

  

 

Revenue

  

 

Service

  

 

Revenue

  

 

Service

(in thousands)

 

 

Recognized In

 

 

Provided In

 

 

Recognized In

 

 

Provided In

 

 

Recognized In

 

 

Provided In

United States

 

$

231,007

 

$

222,890

 

$

373,353

 

$

371,365

 

$

315,863

 

$

313,967

Canada

 

 

— 

 

 

— 

 

 

— 

 

 

400

 

 

— 

 

 

339

Mexico

 

 

— 

 

 

— 

 

 

— 

 

 

252

 

 

— 

 

 

— 

Asia

 

 

— 

 

 

3,983

 

 

— 

 

 

575

 

 

— 

 

 

247

Middle East

 

 

— 

 

 

— 

 

 

— 

 

 

39

 

 

— 

 

 

186

South America

 

 

— 

 

 

4,134

 

 

— 

 

 

687

 

 

— 

 

 

170

Other

 

 

— 

 

 

— 

 

 

— 

 

 

35

 

 

— 

 

 

954

Total

 

$

231,007

 

$

231,007

 

$

373,353

 

$

373,353

 

 

315,863

 

$

315,863

 

 

F-44


 

Table of Contents  

GLOBAL POWER EQUIPMENT GROUP INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (Continued)

NOTE 19—SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)

A summary of the quarterly operating results during 2016 and 2015 follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands, except per share data)

  

First

  

Second

  

Third

  

Fourth

  

2016

Year Ended December 31, 2016

 

Quarter

 

Quarter

 

Quarter

 

Quarter

 

Total

Total revenue

 

$

122,722

 

$

106,787

 

$

85,444

 

$

103,635

 

$

418,588

Gross profit

 

 

14,811

 

 

9,286

 

 

12,937

 

 

11,955

 

 

48,989

Loss from continuing operations

 

 

(9,785)

 

 

(20,112)

 

 

(6,730)

 

 

(6,986)

 

 

(43,613)

Loss per common share from continuing operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(0.57)

 

$

(1.16)

 

$

(0.39)

 

$

(0.40)

 

$

(2.51)

Diluted

 

$

(0.57)

 

$

(1.16)

 

$

(0.39)

 

$

(0.40)

 

$

(2.51)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands, except per share data)

  

First

  

Second

  

Third

  

Fourth

  

2015

Year Ended December 31, 2015

 

Quarter

 

Quarter

 

Quarter

 

Quarter

 

Total

Total revenue

 

$

146,141

 

$

174,276

 

$

124,162

 

$

144,424

 

$

589,003

Gross profit

 

 

10,772

 

 

17,948

 

 

14,932

 

 

8,945

 

 

52,597

Loss from continuing operations

 

 

(5,034)

 

 

(3,898)

 

 

(51,805)

 

 

(17,992)

 

 

(78,729)

Loss per common share from continuing operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(0.29)

 

$

(0.23)

 

$

(3.02)

 

$

(1.05)

 

$

(4.59)

Diluted

 

$

(0.29)

 

$

(0.23)

 

$

(3.02)

 

$

(1.05)

 

$

(4.59)

 

A portion of our business, primarily in our Services segment, is seasonal, resulting in fluctuations in revenue and gross profit during our fiscal year. Generally, the second and fourth quarters are the peak periods for our Services segment as those are periods of low electricity demand during which our customers schedule planned outages. Our Mechanical Solutions and Electrical Solutions segments are less affected by seasons but rather are more impacted by the cyclicality of and fluctuations in the U.S. and international economies that we serve.

NOTE 20—SUBSEQUENT EVENTS

In June 2017, funds affiliated with Centre Lane purchased the outstanding debt from our then-existing lenders under our revolving credit agreement. In August 2017, the Company and Centre Lane entered into the first amendment to the credit agreement, which provided the Company with further funds in the form of a first-out term loan, which matures in September 2018. Centre Lane assumed the revolving credit agreement prior to the completion of a new, multi-year credit agreement entered into by the Company and Centre Lane, which replaced our revolving credit facility. See Note 11—Debt for further discussion.

On January 13, 2017, we sold the stock of Hetsco, Inc., a wholly owned subsidiary, for $23.2 million in cash, inclusive of working capital adjustments. After transaction costs and an escrow withholding of $1.5 million, the net proceeds of $20.2 million were used to reduce debt.

During 2017, we had five employees covered under our executive severance plan or employment agreements who ceased their employment with us. As such, we recognized approximately $1.9 million in severance, which is to be paid out over the terms of the agreements, ranging from six months to 18 months.

 

 

F-45


 

Table of Contents  

Schedule II

VALUATION AND QUALIFYING ACCOUNTS

YEARS ENDED DECEMBER 31, 2016, 2015 AND 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Additions

 

 

 

 

 

 

 

 

Balance at

  

Charged to

  

Charged to

  

 

 

  

Balance at

 

 

Beginning of

 

Costs and

 

Other

 

 

 

 

End of

(in thousands)

 

Period

 

Expenses

 

Accounts

 

Deductions

 

Period

2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Allowance for doubtful accounts

 

$

1,971

 

$

530

 

$

— 

 

$

(867)

 

$

1,634

Accrued warranty reserves

 

 

8,050

 

 

2,445

 

 

— 

 

 

(4,689)

 

 

5,806

Valuation allowance for deferred tax assets

 

 

69,646

 

 

17,415

 

 

— 

 

 

(548)

 

 

86,513

Reserve for Inventory

 

 

1,798

 

 

1,177

 

 

— 

 

 

(1,994)

 

 

981

2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Allowance for doubtful accounts

 

$

1,027

 

$

4,285

 

$

— 

 

$

(3,341)

 

$

1,971

Accrued warranty reserves

 

 

6,487

 

 

8,972

 

 

— 

 

 

(7,409)

 

 

8,050

Valuation allowance for deferred tax assets

 

 

47,748

 

 

21,898

 

 

— 

 

 

— 

 

 

69,646

Reserve for Inventory

 

 

1,186

 

 

266

 

 

— 

 

 

346

 

 

1,798

2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Allowance for doubtful accounts

 

$

576

 

$

603

 

$

— 

 

$

(152)

 

$

1,027

Accrued warranty reserves

 

 

3,794

 

 

4,427

 

 

— 

 

 

(1,734)

 

 

6,487

Valuation allowance for deferred tax assets

 

 

2,848

 

 

44,900

 

 

— 

 

 

— 

 

 

47,748

Reserve for Inventory

 

 

1,118

 

 

214

 

 

— 

 

 

(146)

 

 

1,186

 

The “deductions” column of allowance for doubtful accounts represents write‑offs of fully reserved accounts receivable net of recoveries.

The “deductions” column for accrued warranties represents settlements made during the period and the expiration of warranties on contracts sold in prior years that did not utilize the related reserve balance.

The “deductions” column for valuation allowance for deferred tax assets represents reversals of previously reserved amounts for 2006 foreign tax credits that are now deductible due to expiration of the statute of limitation.

The “deductions” column for reserve for inventory represents markdown of previously reserved amounts for obsolete inventories.

F-46


Exhibit 10.13

SECOND AMENDMENT TO LIMITED WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO OTHER LOAN DOCUMENTS

THIS SECOND AMENDMENT TO LIMITED WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO OTHER LOAN DOCUMENTS (this “ Amendment ”), dated as of  March 25, 2016, is among GLOBAL POWER EQUIPMENT GROUP INC., a Delaware corporation (the “ Borrower ”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent for the Lenders (the “ Administrative Agent ”), the LENDERS (as defined in the Credit Agreement defined below) signing this Amendment, and WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Swingline Lender and in its capacity as Issuing Lender.

RECITALS

A.       The Borrower, the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender are parties to that certain Credit Agreement, dated as of February 21, 2012, as amended by that certain First Amendment to Credit Agreement and First Amendment to Security Agreement, dated as of April 25, 2012, that certain Second Amendment to Credit Agreement, dated as of July 19, 2012, that certain Third Amendment and Limited Waiver to Credit Agreement and Second Amendment to Security Agreement, dated as of March 4, 2013, but effective as of December 7, 2012, that certain Lender Joinder Agreement, effective as of December 17, 2013, that certain Fourth Amendment and Limited Waiver to Credit Agreement, dated as of December 22, 2014, that certain Fifth Amendment and Limited Waiver to Credit Agreement, dated as of May 28, 2015, that certain Limited Waiver and Sixth Amendment to Credit Agreement, dated as of June 30, 2015, that certain Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of August 31, 2015 and that certain First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of December 11, 2015 (as amended, the “ Credit Agreement ”).

B.       Prior to the execution and delivery of the Limited Waiver and Sixth Amendment to Credit Agreement, dated as of June 30, 2015 (the “ Limited Waiver and Sixth Amendment to Credit Agreement ”), the Borrower informed the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender that (i) the previously delivered audited financial statements for the Fiscal Year ending December 31, 2014 and accompanying Officer’s Compliance Certificate were incorrect, (ii) the representations set forth in Section 6.26 of the Credit Agreement regarding such financial statements and accompanying Officer’s Compliance Certificate were incorrect each time such representations were made and (iii) as a result of such incorrect financial statements, the Borrower had failed to keep proper books, records and accounts in accordance with Section 7.7 of the Credit Agreement.  The failure to keep proper books, records and accounts and the delivery of incorrect financial statements for the Fiscal Year ending December 31, 2014, together with an inaccurate Officer’s Compliance Certificate constituted a breach of Sections 6.26 ,   7.1(a) ,   7.2(a) and 7.7 of the Credit Agreement, and constituted Events of Default under Sections 9.1(c) ,   (d) and (e) of the Credit Agreement (collectively, the “ Original Known Existing Events of Default ”).

C.       Pursuant to the Limited Waiver and Sixth Amendment to Credit Agreement, the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender agreed, among other things, to (i) temporarily waive the Original Known Existing Events of Default until August 31, 2015 subject to the terms and conditions of the Limited Waiver and Sixth Amendment to Credit Agreement and (ii) extend the period of time for the delivery of the restated audited financial statements for the Fiscal Year ending December 31, 2014 and related corrected Officer’s Compliance Certificate and for delivery of the quarterly financial statements for the  Borrower’s fiscal quarters ended on or about March 29, 2015 and June 28, 2015 and accompanying Officer’s Compliance Certificates.

SECOND AMENDMENT TO LIMITED WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT – Page 1


 

D.       Pursuant to the Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of August 31, 2015 (the “ Original Limited Waiver and Seventh Amendment to Credit Agreement ”), the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender agreed to (i) further temporarily waive the Original Known Existing Events of Default until February 15, 2016 subject to the terms and conditions of the Limited Waiver and Seventh Amendment to Credit Agreement, (ii) further extend the period of time for  delivery of the restated audited financial statements for the Fiscal Year ending December 31, 2014 and related corrected Officer’s Compliance Certificate and for delivery of the quarterly financial statements for the fiscal quarters ended on or about March 29, 2015 and June 28, 2015 and related Officer’s Compliance Certificate, and (iii) amend certain provisions of the Credit Agreement and the other Loan Documents. 

E.       Following the occurrence of various Waiver Termination Events under the Original Limited Waiver and Seventh Amendment to Credit Agreement, the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender agreed, pursuant to the First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents dated as of December 11, 2015 (the “ First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement ”), to (i) reset and extend until February 15, 2016 the temporary limited waiver under the Limited Waiver and Seventh Amendment to Credit Agreement by temporarily waiving the Waiver Termination Events identified in various letters sent by the Administrative Agent to the Borrower, the Original Known Existing Events of Default, the Additional Known Existing Events of Default and the Anticipated Events of Default pursuant to the terms and conditions of the First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement, and (ii) amend certain of the provisions of the Credit Agreement and the Original Limited Waiver and Seventh Amendment to Credit Agreement (the Original Limited Waiver and Seventh Amendment to Credit Agreement as amended by the First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement, the “ Limited Waiver and Seventh Amendment to Credit Agreement ”).    

F.       On January 31, 2016, the Borrower failed to deliver to the Administrative Agent the restated consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as of the close of the Fiscal Years ended December 31, 2012, December 31, 2013 and December 31, 2014 and as of the close of the fiscal quarters ended on or about March 29, 2015, June 28, 2015 and September 27, 2015, and the consolidated and consolidating statements of income, retained earnings and cash flows for such periods, in each case in reasonable detail and in the forms and certified as required by and as more fully set forth in Sections 4(e)(y) and 4(e)(z) of the Limited Waiver and Seventh Amendment to Credit Agreement. Pursuant to a letter dated February 3, 2016 from the Administrative Agent to the Borrower (the “ February 2016 Notice Letter ”), the Administrative Agent (i) notified the Borrower of the Waiver Termination Events arising under the Limited Waiver and Seventh Amendment to Credit Agreement as a result of the Borrower’s failure to deliver the financial statements as required by Sections 4(e)(y) and 4(e)(z) of the Limited Waiver and Seventh Amendment to Credit Agreement, (ii) notified the Borrower that the temporary waiver of the Original Known Existing Events of Default and the Anticipated Events of Default (as defined in the Limited Waiver and Seventh Amendment to Credit Agreement) under the Limited Waiver and Seventh Amendment to Credit Agreement had terminated, and (iii) reserved all rights and remedies available under the Loan Documents and otherwise.  On February 15, 2016, the Stated Waiver Termination Date occurred which also constitutes a Waiver Termination Event.

G.       The Borrower has requested that the Administrative Agent, the Required Lenders, the Swingline Lender and the Issuing Lender agree to (i) reset and extend the temporary limited waiver under the Limited Waiver and Seventh Amendment to Credit Agreement by temporarily waiving the Waiver Termination Events identified in the February 2016 Notice Letter and in Recital F above, including the Events of Default resulting from the events that caused such Waiver Termination Events, and by temporarily waiving the Original Known Existing Events of Default, the Additional Known Existing

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Events of Default and the Anticipated Events of Default pursuant to the terms and conditions of the Limited Waiver and Seventh Amendment to Credit Agreement, as amended by this Amendment, and (ii) amend certain of the provisions of the Credit Agreement and the Limited Waiver and Seventh Amendment to Credit Agreement pursuant to the terms and conditions of this Amendment. 

H.       The Administrative Agent, the Required Lenders, the Swingline Lender and the Issuing Lender are willing to agree to such requests of the Borrower subject to the terms and conditions of this Amendment.

NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are all hereby acknowledged, the Borrower, the Administrative Agent, the Required Lenders, the Swingline Lender and the Issuing Lender hereby agree as follows:

1.         DEFINITIONS .  All capitalized terms used in this Amendment (including in the Recitals to this Amendment) which are not expressly defined in this Amendment shall have the meanings given to them in the Credit Agreement or the Limited Waiver and Seventh Amendment to Credit Agreement, as applicable. 

2.         AMENDMENTS TO LIMITED WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT

(a)        Section 1 of the Limited Waiver and Seventh Amendment to Credit Agreement is hereby amended by amending or adding, as applicable, the following definitions to read as follows:

Known Existing Waiver Termination Events ” means the existing Waiver Termination Events identified in (a) Recitals E, F, G and H of the First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and (b) Recital F of the Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement.

 “ Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement ” means that certain Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents dated as of March 25, 2016, by and among the Borrower, the Administrative Agent, the Required Lenders, the Swingline Lender and the Issuing Lender, and acknowledged and agreed to by each of the Subsidiary Guarantors.

Second Amendment to Limited Waiver Agreement Effective Date ” means the date on which all of the conditions to the effectiveness of the Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement set forth in Section 7 of the Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement have been satisfied to the satisfaction of the Administrative Agent.

Stated Waiver Termination Date ” means May 15, 2016.

(b)        Section 3(a)(A) of the Limited Waiver and Seventh Amendment to Credit Agreement is amended and restated in its entirety to read as follows:

(A)  the Borrower will not be permitted to have more than the Revolving Credit Loan Cap Amount of Revolving Credit Loans outstanding at any time during the Limited Waiver Period (and the Credit Parties agree that the Lenders will have no obligation to make available Revolving Credit Loans in excess of the Revolving Credit Loan Cap Amount at any time); and

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(c)        Section 3(a)(B) of the Limited Waiver and Seventh Amendment to Credit Agreement is amended by replacing the amount “$15,000,000” contained therein in each instance in which it appears with the phrase “$12,000,000 or, if the Nuclear Services Letter of Credit is issued on or prior to April 20, 2016, $14,000,000”.

(d)        Section 4 of the Limited Waiver and Seventh Amendment to Credit Agreement is amended by adding the following subsections (n) and (o) after existing Section 4(m):

(n)        Application of Cash Collateral and Other Collections and Proceeds of Collateral to the Secured Obligations .  From and after the Second Amendment to Limited Waiver Agreement Effective Date,  the Borrower and the Credit Parties shall take such actions as the Administrative Agent shall request and shall open such accounts with the Administrative Agent as the Administrative Agent shall request to assure that by no later than May 15, 2016 all cash Collateral and all other collections and proceeds of Collateral received by the Borrower or any other Credit Party may, at the Administrative Agent’s election, be applied directly to repay to the Secured Obligations and to otherwise permit the Administrative Agent to implement full dominion over all such cash Collateral and all other collections and proceeds of Collateral received by the Borrower or any other Credit Party.  Nothing in this subsection (m) shall be construed to limit or restrict in any way any of the rights or remedies of the Administrative Agent as secured party under any Deposit Account Control Agreement or any other Loan Document related to the Borrower or any other Credit Party.

(o)        Delivery of Revised 2016 Projections and Plan for Repayment of the Obligations; Late Delivery Fee .  On or before end of the day on April 15, 2016, the Borrower shall provide to the Administrative Agent and the Lenders the revised business plan and operating capital budget of the Borrower and its Subsidiaries for the Fiscal Year commencing January 1, 2016 and ending December 31, 2016, together with a detailed plan for repayment in full of the Obligations including a description of specific events and steps needed to raise funds to do so, the amounts of the Obligations to be repaid from such events and steps and the timing for such events, steps and repayments, all in form and detail reasonably acceptable the Administrative Agent and the Lenders. In the event that Borrower shall fail to deliver the required business plan, operating capital budget and detailed plan for repayment in full of the Obligations on or before the end of the day on April 15, 2016, in addition to the occurrence of a Waiver Termination Event as a result of any such failure, the Borrower shall pay to the Administrative Agent, for the pro rata account of the Lenders (based on the Revolving Credit Commitments of the Lenders) a non-refundable late delivery fee (the “ Late Delivery Fee ”) of $50,000 for each period of seven (7) days that Borrower has failed to comply with the foregoing delivery requirement (e.g., solely to the extent that the required deliverables are not received by the Administrative Agent and the Lenders before the end of the day on April 22, 2016, the Late Delivery Fee for such seven-day period shall be $50,000, if the required deliverables are not received by the Administrative Agent and the Lenders before the end of the day on April 29, 2016, there shall be an additional Late Delivery Fee of $50,000, etc.).  At the end of any such seven-day period, the $50,000 portion of the Late Delivery Fee related to such seven-day period shall be fully due and payable without any notice or demand for payment by the Administrative Agent or any of the Lenders.  The Borrower acknowledges that the timely delivery of the required revised business plan, operating capital budget and detailed plan for repayment in full of the Obligations is of utmost importance to the Administrative Agent and the Lenders in connection with their assessment of an approach and next steps to be taken in connection with the Borrower and the Credit Facility, and the Late Delivery Fee is fair and appropriate compensation to the Administrative Agent and the Lenders for additional risk which will be incurred as a result of a failure of the Borrower to timely deliver such required items.

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(e)        Exhibit A attached to the Limited Waiver and Seventh Amendment to Credit Agreement is amended and restated in the form attached as Exhibit A attached to this Amendment.

3.        ACKNOWLEDGMENTS OF THE BORROWER .  The Borrower hereby acknowledges and agrees as follows:

(a)        Recitals .  The Recitals to this Amendment are true and correct.

(b)        Loan Documents .  The Credit Agreement and the Limited Waiver and Seventh Amendment to Credit Agreement, each as amended by this Amendment, and each of the other Loan Documents are the legal, valid and binding agreements of each Credit Party which is a party thereto, enforceable against such Credit Party in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditor’s rights in general and the availability of equitable remedies, regardless of whether considered in a proceeding equity or at law.

(c)        Obligations .  As of the Second Amendment to Limited Waiver Agreement Effective Date, the Obligations of the Credit Parties under the Loan Documents are not subject to any restriction, setoff, deduction, claim, counterclaim or defense of any kind or character whatsoever.

(d)        Outstanding Principal in respect of the Revolving Credit Loans and the L/C Obligations .  The outstanding principal balance of the Revolving Credit Loans and the L/C Obligations as of March 24, 2016 are as set forth on Schedule A attached to this Amendment and made a part of this Amendment. 

4.        AMENDMENTS TO CREDIT AGREEMENT .

(a)       From and after the Second Amendment to Limited Waiver Agreement Effective Date, Section 1.1 of the Credit Agreement is amended by adding the following definitions in the appropriate alphabetical order:

Net Cash Proceeds ”  means, as applicable, (a) with respect to any Asset Disposition, the gross proceeds received by any Credit Party or any of its Subsidiaries therefrom (including any cash, Cash Equivalents, deferred payment pursuant to, or by monetization of, a note receivable or otherwise, as and when received) less the sum of (i) all income taxes and other taxes assessed by, or reasonably estimated to be payable to, a Governmental Authority as a result of such transaction (provided that if such estimated taxes exceed the amount of actual taxes required to be paid in cash in respect of such Asset Disposition, the amount of such excess shall constitute Net Cash Proceeds), (ii) all reasonable and customary out-of-pocket fees and expenses incurred in connection with such transaction or event and (iii) the principal amount of, premium, if any, and interest on any Indebtedness secured by a Lien which is prior to any Lien of the Administrative Agent or the Lenders on the asset (or a portion thereof) disposed of, which Indebtedness is required to be repaid in connection with such transaction or event, and (b) with respect to any Equity Issuance or Debt Issuance, the gross cash proceeds received by any Credit Party or any of its Subsidiaries therefrom less all reasonable and customary out-of-pocket legal, underwriting and other fees and expenses incurred in connection therewith.

Revolving Credit Loan Cap Amount ” means, as of any date of determination, $70,000,000 minus the aggregate amount of all mandatory repayments required to be made by the Borrower under Section 2.4(b)(vi) ,   Section 2.4(b)(vii) ,   Section 2.4(b)(viii) ,   Section 2.4(b)(ix) or

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Section 2.4(b)(x) through the date of such determination.

Second Amendment to Limited Waiver Agreement Effective Date ” has the meaning given such term in the Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents dated as of March __, 2016, by and among the Borrower, the Administrative Agent, the Required Lenders, the Swingline Lender and the Issuing Lender, and acknowledged and agreed to by each of the Subsidiary Guarantors.

(b)       From and after the Second Amendment to Limited Waiver Agreement Effective Date, the following definitions contained in Section 1.1 of the Credit Agreement are added or amended and restated in their entireties to read as follows:

L/C Commitment ” means the lesser of (a) 12,000,000 or, if the Nuclear Services Letter of Credit is issued on or prior to April 20, 2016, $14,000,000, and (b) the Revolving Credit Commitment.

Nuclear Services Letter of Credit ” means a Letter of Credit in a face amount of up to $3,400,000, in a form satisfactory to the Required Lenders in their sole discretion, issued by the Issuing Lender on or prior to April 20, 2016 and requested by Borrower in accordance with Article III to support obligations of Borrower or any of its Subsidiaries in connection with its nuclear services business.

Revolving Credit Commitment ”  means (a) as to any Revolving Credit Lender, the obligation of such Revolving Credit Lender to make Revolving Credit Loans to the account of the Borrower hereunder in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on the Register, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 4.13 ) and (b) as to all Revolving Credit Lenders, the aggregate commitment of all Revolving Credit Lenders to make Revolving Credit Loans, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 4.13 ).  As of the Second Amendment to Limited Waiver Agreement Effective Date, the amount of the Revolving Credit Commitment of each Revolving Credit Lender is set forth on Exhibit A to the Limited Waiver Agreement and Seventh Amendment to Credit Agreement. Immediately prior to giving effect to the mandatory principal prepayment required on the Second Amendment to Limited Waiver Agreement Effective Date under Section 2.4(b)(vi)(A) , the Aggregate Revolving Credit Commitments of all the Revolving Credit Lenders on the Second Amendment to Limited Waiver Agreement Effective Date is $85,000,000.

(c)       From and after the Second Amendment to Limited Waiver Agreement Effective Date, the penultimate sentence contained in Section 2.1 of the Credit Agreement, commencing “Notwithstanding anything to the contrary in this Agreement, the maximum outstanding principal amount”, is amended and restated in its entirety to read as follows:

Notwithstanding anything to the contrary contained in this Agreement, the maximum aggregate principal amount of Revolving Credit Loans which may be outstanding at any time under this Agreement shall not exceed the Revolving Credit Loan Cap Amount.

(d)       From and after the Second Amendment to Limited Waiver Agreement Effective Date, Section 2.4(b)(v) of the Credit Agreement is amended and replaced by the following Sections 2.4(b)(v) ,   2.4(b)(vi) ,   2.4(b)(vii) ,   2.4(b)(viii) ,   2.4(b)(ix) ,   2.4(b)(x) ,   2.4(b)(xi) and 2.4(b)(xii) :  

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(v)        Revolving Credit Loans in excess of the Revolving Credit Loan Cap Amount .  If on any day the aggregate outstanding principal amount of Revolving Credit Loans exceeds the  Revolving Credit Loan Cap Amount on such date, the Borrower shall (1) first , to the extent necessary to eliminate such excess amount, immediately repay outstanding Revolving Credit Loans which are Base Rate Loans (and/or reduce any pending requests for a borrowing or continuation or conversion of such Loans submitted in respect of such Loans on such day), if any, in an amount equal to such excess amount, and (2) second , if any such excess remains, to the extent necessary to eliminate such excess amount, immediately repay outstanding Revolving Credit Loans which are LIBOR Rate Loans denominated in Dollars (and/or reduce any pending requests for a borrowing or continuation or conversion of such Loans submitted in respect of such Loans on such day) in an amount equal to such remaining excess amount.

(vi)        Mandatory Principal Prepayments on Second Amendment to Limited Waiver Agreement Effective Date and April 15, 2016 . The Borrower shall make (A) a mandatory principal prepayment in the amount of $500,000 on the Second Amendment to Limited Waiver Agreement Effective Date with respect to the Revolving Credit Loans and (B) a mandatory principal payment in the amount of $500,000 on April 15, 2016 with respect to the Revolving Credit Loans. 

(vii)       Asset Dispositions .  The Borrower shall make a mandatory principal prepayment of the Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in the manner set forth in clause (xi) below in an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Asset Disposition (other than any Asset Disposition permitted pursuant to, and in accordance with Section 8.5) .  Such prepayment shall be made within three (3) days of the date of receipt of the Net Cash Proceeds of any such Asset Disposition by any Credit Party or any of its Subsidiaries.

(viii)      Debt Issuances .  The Borrower shall make a mandatory principal prepayment of the Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in the manner set forth in clause (xi) below in an amount equal to one hundred percent (100%) of the aggregate net Cash Proceeds from any Debt Issuance not otherwise permitted pursuant to Section 8.1 . Such repayment shall be made within three (3) days of the date of receipt of the Net Cash Proceeds of any such Debt Issuance by any Credit Party or any of its Subsidiaries.

(ix)        Equity Issuances .  The Borrower shall make a mandatory principal prepayment of the Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in the manner set forth in clause (xi) below in an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Equity Issuance.  Such prepayment shall be made within three (3) days of the date of receipt of the Net Cash Proceeds of any such Equity Issuance by any Credit Party or any of its Subsidiaries.

(x)        Nuclear Services Letter of Credit . The Borrower shall make a mandatory principal prepayment of the Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in the manner set forth in clause (xi) below in an amount equal to one hundred percent (100%) of the face amount of the Nuclear Services Letter of Credit plus such additional amount as necessary to cause such principal prepayment to be in an even increment of $100,000 (e.g., if the face amount of the Nuclear Services Letter of Credit is $3,230,000, the prepayment required under this clause (x) will be $3,300,000).  Such prepayment shall be made at least one Business Day prior to the date on which the Nuclear Services Letter of Credit is issued.

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(xi)       Notice of Prepayments under Clauses (vii) through (x) above; Order of Prepayment under Clauses (vi) through (x) above .  Upon the occurrence of any event triggering a prepayment requirement under clauses (vii) through (x) above, the Borrower shall promptly deliver of a Notice of Prepayment to the Administrative Agent and upon receipt of such notice, the Administrative Agent shall promptly notify the Lenders.  Each prepayment under clauses (vi) through (x) above shall be applied as follows: (1) first , to immediately repay outstanding Revolving Credit Loans which are Base Rate Loans, (2) second , to immediately repay outstanding Revolving Credit Loans which are LIBOR Rate Loans denominated in Dollars, and (3) third , to immediately Cash Collateralize the L/C Obligations.

(xii)      Compliance and Payment .  The Borrower’s compliance with this Section 2.4(b) shall be tested from time to time by the Administrative Agent at its sole discretion, but in any event shall be tested on the date on which (A) the Borrower requests that the applicable Lenders make a Revolving Credit Loan, or (B) the Borrower requests that an Issuing Lender issue a Letter of Credit.  Each such repayment pursuant to this Section 2.4(b) shall be accompanied by any amount required to be paid pursuant to Section 4.9 .  

(e)       From and after the Second Amendment to Limited Waiver Agreement Effective Date, the last sentence of Section 3.1(a) of the Credit Agreement is amended and restated in its entirety to read as follows:

Notwithstanding anything to the contrary in this Agreement, the maximum amount of L/C Obligations that the Borrower shall be able to have at any time under this Agreement shall be $12,000,000 in the aggregate; provided , that if the Nuclear Services Letter of Credit is issued on or prior to April 20, 2016, the maximum amount of L/C Obligations that the Borrower shall be able to have at any time under this Agreement shall be $14,000,000 in the aggregate.

(f)       From and after the Second Amendment to Limited Waiver Agreement Effective Date, Section 4.13 of the Credit Agreement is hereby amended to read as follows:

Section 4.13  Automatic Reductions in the Revolving Credit Commitments of the Lenders .  The Revolving Credit Commitment of each Lender shall be automatically and permanently reduced by the amount of any mandatory prepayment of the Revolving Credit Loans of such Lender received by such Lender pursuant to Section 2.4(b)(vi) ,   Section 2.4(b)(vii) ,   Section 2.4(b)(viii) ,   Section 2.4(b)(ix) or Section 2.4(b)(x) simultaneously with such Lender’s receipt of such mandatory prepayment.

5.        REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT .  By its execution and delivery of this Amendment, the Borrower represents and warrants that, as of the Second Amendment to Limited Waiver Agreement Effective Date:

(a)       other than the representations and warranties with respect to the previously delivered financial statements for Fiscal Year 2012, Fiscal Year 2013, Fiscal Year 2014, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, on and as of the date hereof as made on and as of such date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects on and as of the date hereof as if made on and as of such date, (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified

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by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects as of such earlier date);

(b)       no event has occurred and is continuing which constitutes a Default or an Event of Default except for the Known Existing Events of Default and the Anticipated Events of Default and no event has occurred and is continuing which constitutes a Waiver Termination Event except for the Known Existing Waiver Termination Events;

(c)       (i) the Borrower and each other Credit Party has full power and authority to execute and deliver this Amendment, (ii) this Amendment has been duly executed and delivered by the Borrower and each other Credit Party, and (iii) each of the Limited Waiver and Seventh Amendment to Credit Agreement, as amended by this Amendment, the Credit Agreement, as amended by the Limited Waiver and Seventh Amendment to Credit Agreement, and the other Loan Documents, as amended by this Amendment, constitutes the legal, valid and binding obligations of the Borrower and the other Credit Parties party thereto, enforceable against the Borrower or such Credit Party, as applicable, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies, regardless of whether considered in a proceeding in equity or at law;

(d)       neither the execution, delivery and performance of this Amendment, nor the consummation of any transactions contemplated herein, will conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Borrower or any other Credit Party is a party or by which any of its properties may be bound or any Governmental Approval relating to the Borrower or to any Credit Party, except to the extent such conflict, breach or default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and

(e)       no authorization, approval, consent, or other action by, notice to, or filing with, any governmental authority or other Person not already obtained (including the Board of Directors (or other similar governing body) of the Borrower and of each other Credit Party) is required for the execution, delivery or performance of this Amendment by the Borrower and the other Credit Parties.

6.        CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT .  This Amendment shall be effective upon satisfaction of each of the following conditions precedent to the satisfaction of the Administrative Agent:

(a)       the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Administrative Agent, the Required Lenders, the Swingline Lender and the Issuing Lender;

(b)       the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Borrower and duly acknowledged and agreed to by each Subsidiary Guarantor;

(c)       the Administrative Agent shall have received from the Borrower, in immediately available funds, the mandatory principal prepayment required by Section 2.4(b)(vi)(A) of the Credit Agreement, for application in accordance with Section 2.4(b)(xi) of the Credit Agreement;

(d)       the Administrative Agent shall have received from the Borrower payment of all costs and fees of the Administrative Agent which are unpaid and invoiced prior to the date of this Amendment, including those costs and fees related to travel costs and expenses, appraisals of real estate, 

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appraisals of machinery and equipment, environmental reports, title insurance, legal fees and expenses and other out-of-pocket expenses;

(e)       the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and its counsel, an amendment to the engagement letter between the Borrower and Huron Consulting (or an amended and restated engagement letter between the Borrower and Huron Consulting) with an increased scope of services reasonably acceptable to the Administrative Agent, including having Huron Consulting assist the Borrower in preparing a revised budget for 2016 and plan for repayment of the Obligations; and

(f)       the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and its counsel, such other documents, certificates and instruments as the Administrative Agent shall reasonably require.

7.          REFERENCES .

(a)       Upon the Second Amendment to Limited Waiver Agreement Effective Date, each reference in the Credit Agreement to “this Agreement” or words of like import and each reference in any other Loan Document to the “Credit Agreement” or words of like import shall mean and be a reference to the Credit Agreement, as amended by this Amendment.

(b)       Upon the Second Amendment to Limited Waiver Agreement Effective Date, each reference in the Limited Waiver and Seventh Amendment to Credit Agreement to “this Agreement” or words of like import shall mean and be a reference the Limited Waiver and Seventh Amendment to Credit Agreement, as amended by this Amendment.

(c)       The Credit Agreement, the Limited Waiver and Seventh Amendment to Credit Agreement and the other Loan Documents, as amended by this Amendment, shall remain in full force and effect and are hereby ratified and confirmed.

8.          RELEASE .  As a material part of the consideration for the Administrative Agent, the Required Lenders, the Swingline Lender and the Issuing Lender entering into this Amendment, the Borrower and each Subsidiary Guarantor (collectively, the “ Releasors ”) agree as follows (the “ Release Provision ”):

(a)         The Releasors, jointly and severally, hereby release and forever discharge the Administrative Agent, the Swingline Lender, the Issuing Lender, each Lender and the Administrative Agent’s, the Swingline Lender’s, Issuing Lender’s and each Lender’s predecessors, successors, assigns, officers, managers, directors, shareholders, employees, agents, attorneys and other professionals, representatives, parent corporations, subsidiaries, and affiliates (hereinafter all of the above collectively referred to as the “ Lender Group ”), from any and all claims, counterclaims, demands, damages, debts, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, rights, actions, and causes of action of any nature whatsoever and whether arising at law or in equity, presently possessed, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, presently accrued, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted arising out of, arising under or related to the Loan Documents (collectively, the “ Claims ”), that Releasors may have or allege to have against any or all of the Lender Group and that arise from events occurring before the Second Amendment to Limited Waiver Agreement Effective Date.

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(b)         The Releasors agree not to sue any of the Lender Group nor in any way assist any other person or entity in suing the Lender Group with respect to any of the Claims released herein.  The Release Provision may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the release contained herein.

(c)         The Releasors acknowledge, warrant, and represent to Lender Group that:

(i)         The Releasors have read and understand the effect of the Release Provision.  The Releasors have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of the Release Provision; and if counsel was retained, counsel for Releasors has read and considered the Release Provision and advised Releasors with respect to the same.  Before execution of this Agreement, the Releasors have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of the Release Provision.

(ii)         The Releasors are not acting in reliance on any representation, understanding, or agreement not expressly set forth herein.  The Releasors acknowledge that Lender Group has not made any representation with respect to the Release Provision except as expressly set forth herein.

(iii)        The Releasors have executed this Amendment and the Release Provision thereof as a free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any person or entity.

(iv)        The Releasors are the sole owners of the Claims released by the Release Provision, and the Releasors have not heretofore conveyed or assigned any interest in any such Claims to any other person or entity.

(d)         The Releasors understand that the Release Provision was a material consideration in the agreement of the Administrative Agent, Swingline Lender, Issuing Lender and each Lender to enter into this Amendment.

(e)         It is the express intent of the Releasors that the release and discharge set forth in the Release Provision be construed as broadly as possible in favor of Lender Group so as to foreclose forever the assertion by the Releasors of any Claims released hereby against Lender Group.

(f)         If any term, provision, covenant, or condition of the Release Provision is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of the provisions shall remain in full force and effect.

(g)         The Releasors acknowledge that they may hereafter discover facts in addition to or different from those that they now know or believe with respect to the Claims released herein, but the Releasors expressly shall have and intend to fully, finally and forever have released and discharged any and all such Claims.  The Releasors expressly waive any provision of statutory or decisional law to the effect that a general release does not extend to Claims that the releasing party does not know or suspect to exist in such party’s favor at the time of executing the release.

SECOND AMENDMENT TO LIMITED WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT – Page 11


 

9.          COSTS, EXPENSES AND TAXES .  The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).

10.         SUBSIDIARY GUARANTORS’ ACKNOWLEDGMENT AND AGREEMENT .  By signing below, each Subsidiary Guarantor (a) acknowledges, consents and agrees to this Amendment, (b) acknowledges and agrees to any amendment to its obligations in respect of the Subsidiary Guaranty Agreement made pursuant to this Amendment, (c) acknowledges and agrees that its obligations in respect of the Subsidiary Guaranty Agreement and the Security Agreement are not released, diminished, waived, modified, impaired or affected in any manner by this Amendment or any of the provisions contemplated herein, (d) ratifies and confirms its obligations under the Subsidiary Guaranty Agreement and the Security Agreement, and (e) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, the Subsidiary Guaranty Agreement, the Security Agreement or any other Loan Documents or Obligations.

11.         EXECUTION IN COUNTERPARTS .  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.  For purposes of this Amendment, a counterpart hereof (or signature page thereto) signed and transmitted by any Person party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original.  The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature on an original document.

12.         GOVERNING LAW .  This Amendment and the other Loan Documents and any claim, 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.

13.         WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT 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.

14.         HEADINGS .  Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

15.         ENTIRE AGREEMENT .  THIS AMENDMENT IS A LOAN DOCUMENT.  THE LIMITED WAIVER AND SEVENTH AMENDMENT TO CREDIT AGREEMENT AND THE

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CREDIT AGREEMENT, EACH AS AMENDED BY THIS AMENDMENT, AND THE OTHER LOAN DOCUMENTS, AS AMENDED BY THIS AMENDMENT, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL  AGREEMENTS BETWEEN THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

 

 

 

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IN WITNESS WHEREOF, this Amendment is executed as of the date first set forth above.

 

 

 

 

BORROWER:

 

 

 

 

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

 

 

 

 

By:

/s/ Craig Holmes

 

Name:

Craig Holmes

 

Title:

SVP

 

Signature Page to Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents


 

 

 

 

 

ADMINISTRATIVE AGENT AND LENDERS:

 

 

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Swingline Lender, the Issuing Lender and Lender

 

 

 

 

 

By:

/s/ Kristine B. Netjes

 

Name:

Kristine B. Netjes

 

Title:

Senior Vice President

 

Signature Page to Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents


 

 

 

 

 

 

U.S.  BANK NATIONAL ASSOCIATION,
as Lender

 

 

 

 

 

By:

/s/ Matthew Karki

 

Name:

Matthew Karki

 

Title:

Assistant Vice President

 

Signature Page to Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents


 

 

 

 

 

BRANCH BANKING AND TRUST COMPANY,
as Lender

 

 

 

 

 

By:

/s/ Mitch Turknett

 

Name:

Mitch Turknett

 

Title:

SVP

 

Signature Page to Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents


 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,
as Lender

 

 

 

 

 

By:

/s/ Joseph T. Nash

 

Name:

Joseph T. Nash

 

Title:

Underwriting Jr. Associate

 

Signature Page to Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents


 

 

 

 

 

ACKNOWLEDGED AND AGREED TO:

 

 

 

AS SUBSIDIARY GUARANTORS:

 

 

 

 

 

WILLIAMS INDUSTRIAL SERVICES GROUP, L.L.C.

 

BRADEN MANUFACTURING, L.L.C.

 

WILLIAMS INDUSTRIAL SERVICES, LLC

 

WILLIAMS SPECIALTY SERVICES, LLC

 

WILLIAMS PLANT SERVICES, LLC

 

CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC

 

WILLIAMS GLOBAL SERVICES, INC.

 

Koontz-Wagner Custom Controls HoldingS LLC

 

TOG Holdings, Inc.

 

TOG Manufacturing Company, Inc.

 

GPEG, LLC

 

HETSCO HOLDINGS, INC.

 

HETSCO, INC.

 

GLOBAL POWER TECHNICAL SERVICES, INC.

 

BRADEN HOLDINGS, LLC

 

global power professional services inc.

 

braden construction services, inc.

 

steam enterprises llc

 

 

 

 

 

 

 

By:

/s/ Erin Gonzalez

 

Name:

Erin Gonzalez

 

Title:

Vice President and Treasurer

 

Signature Page to Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents


Exhibit 10.24

EIGHTEENTH AMENDMENT TO CREDIT AGREEMENT

THIS EIGHTEENTH AMENDMENT TO CREDIT AGREEMENT (this “ Amendment ”), dated as of June 1, 2017, is among GLOBAL POWER EQUIPMENT GROUP INC., a Delaware corporation (the “ Borrower ”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent for the Lenders (the “ Administrative Agent ”), the LENDERS (as defined in the Credit Agreement defined below) signing this Amendment, and WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Swingline Lender and in its capacity as Issuing Lender.

RECITALS

A.         The Borrower, the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender are parties to that certain Credit Agreement, dated as of February 21, 2012, as amended by that certain First Amendment to Credit Agreement and First Amendment to Security Agreement, dated as of April 25, 2012, that certain Second Amendment to Credit Agreement, dated as of July 19, 2012, that certain Third Amendment and Limited Waiver to Credit Agreement and Second Amendment to Security Agreement, dated as of March 4, 2013, but effective as of December 7, 2012, that certain Lender Joinder Agreement, effective as of December 17, 2013, that certain Fourth Amendment and Limited Waiver to Credit Agreement, dated as of December 22, 2014, that certain Fifth Amendment and Limited Waiver to Credit Agreement, dated as of May 28, 2015, that certain Limited Waiver and Sixth Amendment to Credit Agreement, dated as of June 30, 2015, that certain Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of August 31, 2015 (the “ Original Limited Waiver Agreement ”), that certain First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of December 11, 2015 (the “ First Limited Waiver Amendment ”), that certain Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of March 25, 2016 (the “ Second Limited Waiver Amendment ”), that certain Third Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of July 22, 2016 (the “ Third Limited Waiver Amendment ”), that certain Eighth Amendment to Credit Agreement dated as of August 5, 2016 (the “ Eighth Amendment ”), that certain Ninth Amendment to Credit Agreement and Fourth Amendment to Limited Waiver Agreement dated as of October 4, 2016 (the “ Ninth Amendment ”), that certain Tenth Amendment to Credit Agreement and Fifth Amendment to Limited Waiver Agreement dated as of October 28, 2016 (the “ Tenth Amendment ”), that certain Eleventh Amendment to Credit Agreement and Sixth Amendment to Limited Waiver Agreement dated as of November 30, 2016 (the “ Eleventh Amendment ”), that certain Twelfth Amendment to Credit Agreement dated as of December 23, 2016 (the “ Twelfth Amendment ”), that certain Thirteenth Amendment to Credit Agreement and Seventh Amendment to Limited Waiver Agreement dated as of January 30, 2017 (the “ Thirteenth Amendment ”), that certain Fourteenth Amendment to Credit Agreement and Seventh Amendment to Limited Waiver Agreement dated as of February 21, 2017 (the “ Fourteenth Amendment ”), that certain Fifteenth Amendment to Credit Agreement and Ninth Amendment to Limited Waiver Agreement dated as of March 3, 2017 (the “ Fifteenth Amendment ”) that certain Sixteenth Amendment to Credit Agreement and Eleventh Amendment to Limited Waiver Agreement dated as of May 11, 2017 (the “ Sixteenth Amendment ”), that certain Seventeenth Amendment to Credit Agreement and Twelfth Amendment to Limited Waiver Agreement dated as of May 31, 2017 (the “ Seventeenth Amendment ”)  (such Credit Agreement, as so amended, the “ Credit Agreement ”; and the Original Limited Waiver Agreement, as amended by the First Limited Waiver Amendment, the Second Limited Waiver Amendment, the Third Limited Waiver Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth Amendment, the Eleventh Amendment, the Thirteenth Amendment, the Fourteenth Amendment, the Fifteenth Amendment, the Sixteenth Amendment, the Seventeenth Amendment and that certain Tenth Amendment to Limited Waiver Agreement dated as of April 10, 2017, the “ Limited Waiver Agreement ”).

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B.         The Borrower has requested that the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender agree to amend certain of the provisions of the Credit Agreement and Limited Waiver Agreement pursuant to the terms and conditions of this Amendment.

C.         The Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender are willing to agree to such request of the Borrower subject to the terms and conditions of this Amendment.

NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are all hereby acknowledged, the Borrower, the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender hereby agree as follows:

1.          DEFINITIONS .  All capitalized terms used in this Amendment (including in the Recitals to this Amendment) which are not expressly defined in this Amendment shall have the meanings given to them in the Credit Agreement. 

2.          AMENDMENTS TO THE CREDIT AGREEMENT .  

(a)       Section 1.1 of the Credit Agreement is hereby amended by amending the following definitions to read as follows:

PIK Interest Rate ” means (a) prior to June 1, 2017, 5.00% per annum, and (b) from and after June 1, 2017, 7.00% per annum.

Revolving Credit Loan Cap Amount ” means, as of any date of determination, the total of (a) from June 1, 2017 through and including June 4, 2017, $33,119,517, (b) from June 5, 2017 through and including June 8, 2017, (i) upon the Lenders’ approval (which may be by email) following written request from the Borrower, $34,619,517 or such lesser amount as the Lenders approve following such written request, or (ii) if no such request is made or approval granted, $33,119,517, and (c) from June 9, 2017 and at all times thereafter, $31,619,517 minus the aggregate amount of all mandatory repayments required to be made by the Borrower under Section 2.4(b)(vi) ,   Section 2.4(b)(vii) ,   Section 2.4(b)(viii) ,   Section 2.4(b)(ix) or Section 2.4(b)(x) through the date of such determination.

(b)       Section 4.1(d) of the Credit Agreement is hereby amended by adding the following new sentence to the end thereof, to read as follows:

Notwithstanding the foregoing, the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender hereby agree that the Borrower’s payment of interest otherwise due on May 31, 2017 is deferred until the earlier of (i) June 12, 2017 and (ii) the occurrence of a Waiver Termination Event (as defined in the Limited Waiver Agreement and Seventh Amendment to Credit Agreement), and the Borrower’s failure to make such payment of interest on May 31, 2017 shall not constitute an Event of Default so long as such payment is made in accordance with this sentence.

3.         [ RESERVED .]

4.          ACKNOWLEDGMENTS OF THE BORROWER .  The Borrower hereby acknowledges and agrees as follows:

(a)       Recitals .  The Recitals to this Amendment are true and correct.

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(b)       Loan Documents .  The Credit Agreement, as amended by this Amendment, the Limited Waiver Agreement, as amended by this Amendment, and each of the other Loan Documents are the legal, valid and binding agreements of each Credit Party which is a party thereto, enforceable against such Credit Party in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditor’s rights in general and the availability of equitable remedies, regardless of whether considered in a proceeding in equity or at law.

(c)       Obligations .  As of the date hereof, the Obligations of the Credit Parties under the Loan Documents are not subject to any restriction, setoff, deduction, claim, counterclaim or defense of any kind or character whatsoever.

(d)      [ Reserved .] 

5.          REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT .  By its execution and delivery of this Amendment, the Borrower represents and warrants that, as of the date hereof:

(a)      other than the representations and warranties with respect to the previously delivered financial statements for Fiscal Year 2012, Fiscal Year 2013, Fiscal Year 2014 and Fiscal Year 2015, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, on and as of the date hereof as made on and as of such date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects on and as of the date hereof as if made on and as of such date, (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects as of such earlier date);

(b)      no event has occurred and is continuing which constitutes a Default or an Event of Default except for the Known Existing Events of Default (as defined in the Limited Waiver Agreement) and the Anticipated Events of Default (as defined in the Limited Waiver Agreement) and no event has occurred and is continuing which constitutes a Waiver Termination Event (as defined in the Limited Waiver Agreement) except for the Known Existing Waiver Termination Events (as defined in the Limited Waiver Agreement);

(c)      (i) the Borrower and each other Credit Party has full power and authority to execute and deliver this Amendment, (ii) this Amendment has been duly executed and delivered by the Borrower and each other Credit Party, and (iii) each of the Credit Agreement, as amended by this Amendment, the Limited Waiver Agreement, as amended by this Amendment, and each other Loan Document constitutes the legal, valid and binding obligations of the Borrower and the other Credit Parties party thereto, enforceable against the Borrower or such Credit Party, as applicable, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies, regardless of whether considered in a proceeding in equity or at law;

(d)      neither the execution, delivery and performance of this Amendment, nor the consummation of any transactions contemplated herein, will conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Borrower or any

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other Credit Party is a party or by which any of its properties may be bound or any Governmental Approval relating to the Borrower or to any Credit Party, except to the extent such conflict, breach or default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and

(e)      no authorization, approval, consent, or other action by, notice to, or filing with, any governmental authority or other Person not already obtained (including the Board of Directors (or other similar governing body) of the Borrower and of each other Credit Party) is required for the execution, delivery or performance of this Amendment by the Borrower and the other Credit Parties.

6.          CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT .  This Amendment shall be effective upon satisfaction of each of the following conditions precedent to the satisfaction of the Administrative Agent (such date, the “ Effective Date ”):

(a)      the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender;

(b)      the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Borrower and duly acknowledged and agreed to by each Subsidiary Guarantor;

(c)      the Administrative Agent shall have received from the Borrower the payment of all costs and fees of the Administrative Agent which are unpaid and invoiced prior to the date of this Amendment, including those costs and fees related to travel costs and expenses, appraisals of real estate, appraisals of machinery and equipment, environmental reports, title insurance, legal fees and expenses and other out-of-pocket expenses; and

(d)      the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and its counsel, such other documents, certificates and instruments as the Administrative Agent shall reasonably require.

7.          REFERENCES .

(a)      Each reference in the Credit Agreement to “this Agreement” or words of like import and each reference in any other Loan Document to the “Credit Agreement” or words of like import shall mean and be a reference to the Credit Agreement, as amended by this Amendment.  Each reference in the Limited Waiver Agreement to “this Agreement” or words of like import and each reference in any other Loan Document to the “Limited Waiver Agreement” or words of like import shall mean and be a reference to the Limited Waiver Agreement, as amended by this Amendment.

(b)      The Credit Agreement, as amended by this Amendment, the Limited Waiver Agreement, as amended by this Amendment, and the other Loan Documents remain in full force and effect and are hereby ratified and confirmed.

8.          RELEASE .  As a material part of the consideration for the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender entering into this Amendment, the Borrower and each Subsidiary Guarantor (collectively, the “ Releasors ”) agree as follows (the “ Release Provision ”):

(a)       The Releasors, jointly and severally, hereby release and forever discharge the Administrative Agent, the Swingline Lender, the Issuing Lender, each Lender and the Administrative Agent’s, the Swingline Lender’s, Issuing Lender’s and each Lender’s predecessors,

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successors, assigns, officers, managers, directors, shareholders, employees, agents, attorneys and other professionals, representatives, parent corporations, subsidiaries, and affiliates (hereinafter all of the above collectively referred to as the “ Lender Group ”), from any and all claims, counterclaims, demands, damages, debts, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, rights, actions, and causes of action of any nature whatsoever and whether arising at law or in equity, presently possessed, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, presently accrued, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted arising out of, arising under or related to the Loan Documents (collectively, the “ Claims ”), that Releasors may have or allege to have against any or all of the Lender Group and that arise from events occurring before the date hereof.

(b)       The Releasors agree not to sue any of the Lender Group nor in any way assist any other person or entity in suing the Lender Group with respect to any of the Claims released herein. The Release Provision may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the release contained herein.

(c)       The Releasors acknowledge, warrant, and represent to Lender Group that:

(i)      The Releasors have read and understand the effect of the Release Provision.  The Releasors have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of the Release Provision; and if counsel was retained, counsel for Releasors has read and considered the Release Provision and advised Releasors with respect to the same.  Before execution of this Amendment, the Releasors have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of the Release Provision.

(ii)      The Releasors are not acting in reliance on any representation, understanding, or agreement not expressly set forth herein.  The Releasors acknowledge that Lender Group has not made any representation with respect to the Release Provision except as expressly set forth herein.

(iii)     The Releasors have executed this Amendment and the Release Provision thereof as a free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any person or entity.

(iv)      The Releasors are the sole owners of the Claims released by the Release Provision, and the Releasors have not heretofore conveyed or assigned any interest in any such Claims to any other person or entity.

(d)         The Releasors understand that the Release Provision was a material consideration in the agreement of the Administrative Agent, Swingline Lender, Issuing Lender and each Lender to enter into this Amendment.

(e)         It is the express intent of the Releasors that the release and discharge set forth in the Release Provision be construed as broadly as possible in favor of Lender Group so as to foreclose forever the assertion by the Releasors of any Claims released hereby against Lender Group.

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(f)         If any term, provision, covenant, or condition of the Release Provision is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of the provisions shall remain in full force and effect.

(g)         The Releasors acknowledge that they may hereafter discover facts in addition to or different from those that they now know or believe with respect to the Claims released herein, but the Releasors expressly shall have and intend to fully, finally and forever have released and discharged any and all such Claims.  The Releasors expressly waive any provision of statutory or decisional law to the effect that a general release does not extend to Claims that the releasing party does not know or suspect to exist in such party’s favor at the time of executing the release.

9.          COSTS, EXPENSES AND TAXES .  The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).

10.          SUBSIDIARY GUARANTORS’ ACKNOWLEDGMENT AND AGREEMENT .  By signing below, each Subsidiary Guarantor (a) acknowledges, consents and agrees to this Amendment, (b) acknowledges and agrees to any amendment to its obligations in respect of the Subsidiary Guaranty Agreement made pursuant to this Amendment, (c) acknowledges and agrees that its obligations in respect of the Subsidiary Guaranty Agreement and the Security Agreement are not released, diminished, waived, modified, impaired or affected in any manner by this Amendment or any of the provisions contemplated herein, (d) ratifies and confirms its obligations under the Subsidiary Guaranty Agreement and the Security Agreement, and (e) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, the Subsidiary Guaranty Agreement, the Security Agreement or any other Loan Documents or Obligations.

11.          EXECUTION IN COUNTERPARTS .  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.  For purposes of this Amendment, a counterpart hereof (or signature page thereto) signed and transmitted by any Person party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original.  The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature on an original document.

12.          GOVERNING LAW .  This Amendment and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment 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.

13.          WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT 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

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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 AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

14.          HEADINGS .  Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

15.          ENTIRE AGREEMENT; NO COURSE OF DEALING .  THIS AMENDMENT IS A LOAN DOCUMENT.  THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE OTHER LOAN DOCUMENTS, AS AMENDED, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT NEITHER THE AMENDMENTS AND EXTENSIONS CONTAINED HEREIN NOR ANY OTHER AMENDMENTS OR EXTENSIONS GRANTED TO THE CREDIT PARTIES SHALL BE INTERPRETED OR CONSTRUED UNDER ANY CIRCUMSTANCES AS HAVING ESTABLISHED A COURSE OF DEALING OR COURSE OF CONDUCT BINDING UPON THE ADMINISTRATIVE AGENT, THE LENDERS, THE SWINGLINE LENDER OR THE ISSUING LENDER IN THE FUTURE OR OTHERWISE CREATING ANY FUTURE OBLIGATIONS ON THE PART OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE SWINGLINE LENDER OR THE ISSUING LENDER TO PROVIDE OR AGREE TO ANY SIMILAR AMENDMENT OR EXTENSION AT ANY TIME.

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

 

EIGHTEENTH AMENDMENT TO CREDIT AGREEMENT – Page  7

US.112709389.02


 

IN WITNESS WHEREOF, this Amendment is executed as of the date first set forth above.

 

 

 

 

BORROWER:

 

 

 

 

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

 

 

 

 

By:

/s/ Craig Holmes

 

Name: Craig Holmes

 

Title:  CFO

Signature Page to Eighteenth Amendment to Credit Agreement


 

 

 

 

 

ADMINISTRATIVE AGENT AND LENDERS:

 

 

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

 

as Administrative Agent, Swingline Lender, the Issuing

 

Lender and Lender

 

 

 

 

 

 

 

By:

/s/ Kristine B. Netjes

 

Name: Kristine B. Netjes

 

Title:  Senior Vice President

 

Signature Page to Eighteenth Amendment to Credit Agreement


 

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION,

 

as Lender

 

 

 

 

 

 

 

By:

/s/ David C. Heyson

 

Name: David C. Heyson

 

Title:  Senior Vice President

 

Signature Page to Eighteenth Amendment to Credit Agreement


 

 

 

 

 

BRANCH BANKING AND TRUST COMPANY,

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Mitch Turknett

 

Name: Mitch Turknett

 

Title:  SVP

 

Signature Page to Eighteenth Amendment to Credit Agreement


 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as Lender

 

 

 

 

 

 

 

By:

/s/ R. Alan Green

 

Name: R. Alan Green

 

Title: Authorized Officer

 

Signature Page to Eighteenth Amendment to Credit Agreement


 

 

 

 

 

ACKNOWLEDGED AND AGREED TO:

 

 

 

AS SUBSIDIARY GUARANTORS:

 

 

 

 

 

 

 

WILLIAMS INDUSTRIAL SERVICES GROUP, L.L.C.

 

BRADEN MANUFACTURING, L.L.C.

 

WILLIAMS INDUSTRIAL SERVICES, LLC

 

WILLIAMS SPECIALTY SERVICES, LLC

 

WILLIAMS PLANT SERVICES, LLC

 

CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC

 

WILLIAMS GLOBAL SERVICES, INC.

 

Koontz-Wagner Custom Controls HoldingS LLC

 

GPEG, LLC

 

GLOBAL POWER TECHNICAL SERVICES, INC.

 

BRADEN HOLDINGS, LLC

 

global power professional services inc.

 

braden construction services, inc.

 

steam enterprises llc

 

 

 

 

 

 

 

By:

/s/ Erin Gonzalez

 

Name: Erin Gonzalez

 

Title:  Vice President and Treasurer

 

Signature Page to Eighteenth Amendment to Credit Agreement


Exhibit 10.25

NINETEENTH AMENDMENT TO CREDIT AGREEMENT

THIS NINETEENTH AMENDMENT TO CREDIT AGREEMENT (this “ Amendment ”), dated as of June 9, 2017, is among GLOBAL POWER EQUIPMENT GROUP INC., a Delaware corporation (the “ Borrower ”), CENTRE LANE MASTER CREDIT FUND II, L.P., as Administrative Agent for the Lenders (as successor to Wells Fargo Bank, National Association, the “ Administrative Agent ”) and the LENDERS (as defined in the Credit Agreement defined below) signing this Amendment.

RECITALS

A.         The Borrower, the Administrative Agent and the Lenders are parties to that certain Credit Agreement, dated as of February 21, 2012, as amended by that certain First Amendment to Credit Agreement and First Amendment to Security Agreement, dated as of April 25, 2012, that certain Second Amendment to Credit Agreement, dated as of July 19, 2012, that certain Third Amendment and Limited Waiver to Credit Agreement and Second Amendment to Security Agreement, dated as of March 4, 2013, but effective as of December 7, 2012, that certain Lender Joinder Agreement, effective as of December 17, 2013, that certain Fourth Amendment and Limited Waiver to Credit Agreement, dated as of December 22, 2014, that certain Fifth Amendment and Limited Waiver to Credit Agreement, dated as of May 28, 2015, that certain Limited Waiver and Sixth Amendment to Credit Agreement, dated as of June 30, 2015, that certain Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of August 31, 2015 (the “ Original Limited Waiver Agreement ”), that certain First Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of December 11, 2015 (the “ First Limited Waiver Amendment ”), that certain Second Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of March 25, 2016 (the “ Second Limited Waiver Amendment ”), that certain Third Amendment to Limited Waiver and Seventh Amendment to Credit Agreement and Amendment to Other Loan Documents, dated as of July 22, 2016 (the “ Third Limited Waiver Amendment ”), that certain Eighth Amendment to Credit Agreement dated as of August 5, 2016 (the “ Eighth Amendment ”), that certain Ninth Amendment to Credit Agreement and Fourth Amendment to Limited Waiver Agreement dated as of October 4, 2016 (the “ Ninth Amendment ”), that certain Tenth Amendment to Credit Agreement and Fifth Amendment to Limited Waiver Agreement dated as of October 28, 2016 (the “ Tenth Amendment ”), that certain Eleventh Amendment to Credit Agreement and Sixth Amendment to Limited Waiver Agreement dated as of November 30, 2016 (the “ Eleventh Amendment ”), that certain Twelfth Amendment to Credit Agreement dated as of December 23, 2016 (the “ Twelfth Amendment ”), that certain Thirteenth Amendment to Credit Agreement and Seventh Amendment to Limited Waiver Agreement dated as of January 30, 2017 (the “ Thirteenth Amendment ”), that certain Fourteenth Amendment to Credit Agreement and Seventh Amendment to Limited Waiver Agreement dated as of February 21, 2017 (the “ Fourteenth Amendment ”), that certain Fifteenth Amendment to Credit Agreement and Ninth Amendment to Limited Waiver Agreement dated as of March 3, 2017 (the “ Fifteenth Amendment ”) that certain Sixteenth Amendment to Credit Agreement and Eleventh Amendment to Limited Waiver Agreement dated as of May 11, 2017 (the “ Sixteenth Amendment ”), that certain Seventeenth Amendment to Credit Agreement and Twelfth Amendment to Limited Waiver Agreement dated as of May 31, 2017 (the “ Seventeenth Amendment ”)  and that certain Eighteenth Amendment to Credit Agreement dated as of June 1, 2017 (the “ Eighteenth Amendment ”) (such Credit Agreement, as so amended, the “ Credit Agreement ”; and the Original Limited Waiver Agreement, as amended by the First Limited Waiver Amendment, the Second Limited Waiver Amendment, the Third Limited Waiver Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth Amendment, the Eleventh Amendment, the Thirteenth Amendment, the Fourteenth Amendment, the Fifteenth Amendment, the Sixteenth Amendment, the Seventeenth Amendment, the Eighteenth Amendment and that certain Tenth Amendment to Limited Waiver Agreement dated as of April 10, 2017, the “ Limited Waiver Agreement ”).

NINETEENTH AMENDMENT TO CREDIT AGREEMENT – Page  1


 

B.         The Borrower and the Administrative Agent have entered into that certain Side Letter dated as of June 9, 2017 (the “ Side Letter ”).         

C.         The Borrower has requested that the Administrative Agent and the Lenders agree to amend certain of the provisions of the Credit Agreement and Limited Waiver Agreement pursuant to the terms and conditions of this Amendment.

D.         The Administrative Agent and the Lenders are willing to agree to such request of the Borrower subject to the terms and conditions of this Amendment.

NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are all hereby acknowledged, the Borrower, the Administrative Agent and the Lenders hereby agree as follows:

1.          DEFINITIONS .  All capitalized terms used in this Amendment (including in the Recitals to this Amendment) which are not expressly defined in this Amendment shall have the meanings given to them in the Credit Agreement. 

2.          AMENDMENTS TO THE CREDIT AGREEMENT .  

(a)       Section 1.1 of the Credit Agreement is hereby amended by amending the definition of Revolving Credit Loan Cap Amount to read as follows:

Revolving Credit Loan Cap Amount ” means, as of any date of determination, the total of (a) from June 9, 2017 through and including June 11, 2017, $36,224,169.91 plus (b) from June 12, 2017 and at all times thereafter, additional amounts that may be agreed to by the Administrative Agent in writing, in its sole discretion, but in any event, such additional amounts shall not exceed $3,000,000 in the aggregate minus  the aggregate amount of all mandatory repayments required to be made by the Borrower under  Section 2.4(b)(vi) Section 2.4(b)(vii) Section 2.4(b)(viii) Section 2.4(b)(ix)  or  Section 2.4(b)(x)  through the date of such determination. 

(b)       Section 1.1 of the Credit Agreement is hereby further amended by adding the following definition thereto in appropriate alphabetical order:

Nineteenth Amendment ” means that certain Nineteenth Amendment dated as of June 9, 2017 by and among the Borrower, the Administrative Agent and the Lenders party thereto.

(c)       Section 8.1 of the Credit Agreement is hereby amended by (i) deleting the word “and” at the conclusion of Section 8.1(l) , (ii) replacing the “.” at the conclusion of Section 8.1(m) and replacing it with “; and” and (iii) adding a new clause (n) thereof as follows:

“(n)      letters of credit listed on Schedule 1.1 of the Nineteenth Amendment.”

(d)         Section 8.2 of the Credit Agreement is hereby amended by (i) deleting the word “and” at the conclusion of Section 8.2(p) , (ii) replacing the “.” at the conclusion of Section 8.2(q) and replacing it with “; and” and (iii) adding a new clause (r) thereof as follows:

“(r)        liens on cash collateral supporting letters of credit listed on Schedule 1.1 of the Nineteenth Amendment in an amount not to exceed 105% of the face amount of such letters of credit.”

NINETEENTH AMENDMENT TO CREDIT AGREEMENT – Page  2


 

3.          NINETEENTH AMENDMENT REVOLVING CREDIT LOAN .  Notwithstanding any provision set forth in the Credit Agreement to the contrary, the Borrower and Lenders hereby agree that upon the satisfaction of the conditions precedent set forth herein, the Lenders shall make a Revolving Credit Loan to the Borrower in an aggregate amount not to exceed $3,286,171.28.

4.          ACKNOWLEDGMENTS OF THE BORROWER .  The Borrower hereby acknowledges and agrees as follows:

(a)       Recitals .  The Recitals to this Amendment are true and correct.

(b)       Loan Documents .  The Credit Agreement, as amended by this Amendment, the Limited Waiver Agreement and each of the other Loan Documents are the legal, valid and binding agreements of each Credit Party which is a party thereto, enforceable against such Credit Party in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditor’s rights in general and the availability of equitable remedies, regardless of whether considered in a proceeding in equity or at law.

(c)       Obligations .  As of the date hereof, the Obligations of the Credit Parties under the Loan Documents are not subject to any restriction, setoff, deduction, claim, counterclaim or defense of any kind or character whatsoever.

(d)       Outstanding Obligations .  As of the date hereof, after giving effect to the Revolving Credit Loan made on the date hereof, the outstanding amount principal amount of Revolving Credit Loans owed to the Lenders is $36,224,169.91. 

5.          REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT .  By its execution and delivery of this Amendment, the Borrower represents and warrants that, as of the date hereof:

(a)       other than the representations and warranties with respect to the previously delivered financial statements for Fiscal Year 2012, Fiscal Year 2013, Fiscal Year 2014 and Fiscal Year 2015, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, on and as of the date hereof as made on and as of such date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects on and as of the date hereof as if made on and as of such date, (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects as of such earlier date);

(b)       no event has occurred and is continuing which constitutes a Default or an Event of Default except for the Known Existing Events of Default (as defined in the Limited Waiver Agreement), the Anticipated Events of Default (as defined in the Limited Waiver Agreement), the Existing Events of Default (as defined in the Side Letter) and the Anticipated Event of Default (as defined in the Side Letter) and no event has occurred and is continuing which constitutes a Waiver Termination Event (as defined in the Limited Waiver Agreement) except for the Known Existing Waiver Termination Events (as defined in the Limited Waiver Agreement);

NINETEENTH AMENDMENT TO CREDIT AGREEMENT – Page  3


 

(c)       (i) the Borrower and each other Credit Party has full power and authority to execute and deliver this Amendment, (ii) this Amendment has been duly executed and delivered by the Borrower and each other Credit Party, and (iii) each of the Credit Agreement, as amended by this Amendment, the Limited Waiver Agreement and each other Loan Document constitutes the legal, valid and binding obligations of the Borrower and the other Credit Parties party thereto, enforceable against the Borrower or such Credit Party, as applicable, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies, regardless of whether considered in a proceeding in equity or at law;

(d)       neither the execution, delivery and performance of this Amendment, nor the consummation of any transactions contemplated herein, will conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Borrower or any other Credit Party is a party or by which any of its properties may be bound or any Governmental Approval relating to the Borrower or to any Credit Party, except to the extent such conflict, breach or default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and

(e)       no authorization, approval, consent, or other action by, notice to, or filing with, any governmental authority or other Person not already obtained (including the Board of Directors (or other similar governing body) of the Borrower and of each other Credit Party) is required for the execution, delivery or performance of this Amendment by the Borrower and the other Credit Parties.

6.          CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT .  This Amendment shall be effective upon satisfaction of each of the following conditions precedent to the satisfaction of the Administrative Agent (such date, the “ Effective Date ”):

(a)      the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Administrative Agent and the Lenders;

(b)      the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Borrower and duly acknowledged and agreed to by each Subsidiary Guarantor;

(c)       [reserved]; and

(d)       the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and its counsel, such other documents, certificates and instruments as the Administrative Agent shall reasonably require.

NINETEENTH AMENDMENT TO CREDIT AGREEMENT – Page  4


 

7.          REFERENCES .

(a)      Each reference in the Credit Agreement to “this Agreement” or words of like import and each reference in any other Loan Document to the “Credit Agreement” or words of like import shall mean and be a reference to the Credit Agreement, as amended by this Amendment.  Each reference in the Limited Waiver Agreement to “this Agreement” or words of like import and each reference in any other Loan Document to the “Limited Waiver Agreement” or words of like import shall mean and be a reference to the Limited Waiver Agreement, as amended by this Amendment.

(b)     The Credit Agreement, as amended by this Amendment, the Limited Waiver Agreement and the other Loan Documents remain in full force and effect and are hereby ratified and confirmed.

8.          RELEASE .  As a material part of the consideration for the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender entering into this Amendment, the Borrower and each Subsidiary Guarantor (collectively, the “ Releasors ”) agree as follows (the “ Release Provision ”):

(a)      The Releasors, jointly and severally, hereby release and forever discharge the Administrative Agent, the Swingline Lender, the Issuing Lender, each Lender and the Administrative Agent’s, the Swingline Lender’s, Issuing Lender’s and each Lender’s predecessors, successors, assigns, officers, managers, directors, shareholders, employees, agents, attorneys and other professionals, representatives, parent corporations, subsidiaries, and affiliates (hereinafter all of the above collectively referred to as the “ Lender Group ”), from any and all claims, counterclaims, demands, damages, debts, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, rights, actions, and causes of action of any nature whatsoever and whether arising at law or in equity, presently possessed, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, presently accrued, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted arising out of, arising under or related to the Loan Documents (collectively, the “ Claims ”), that Releasors may have or allege to have against any or all of the Lender Group and that arise from events occurring before the date hereof.

(b)      The Releasors agree not to sue any of the Lender Group nor in any way assist any other person or entity in suing the Lender Group with respect to any of the Claims released herein.  The Release Provision may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the release contained herein.

(c)      The Releasors acknowledge, warrant, and represent to Lender Group that:

(i)       The Releasors have read and understand the effect of the Release Provision.  The Releasors have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of the Release Provision; and if counsel was retained, counsel for Releasors has read and considered the Release Provision and advised Releasors with respect to the same.  Before execution of this Amendment, the Releasors have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of the Release Provision.

NINETEENTH AMENDMENT TO CREDIT AGREEMENT – Page  5


 

(ii)      The Releasors are not acting in reliance on any representation, understanding, or agreement not expressly set forth herein.  The Releasors acknowledge that Lender Group has not made any representation with respect to the Release Provision except as expressly set forth herein.

(iii)     The Releasors have executed this Amendment and the Release Provision thereof as a free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any person or entity.

(iv)         The Releasors are the sole owners of the Claims released by the Release Provision, and the Releasors have not heretofore conveyed or assigned any interest in any such Claims to any other person or entity.

(d)         The Releasors understand that the Release Provision was a material consideration in the agreement of the Administrative Agent, Swingline Lender, Issuing Lender and each Lender to enter into this Amendment.

(e)         It is the express intent of the Releasors that the release and discharge set forth in the Release Provision be construed as broadly as possible in favor of Lender Group so as to foreclose forever the assertion by the Releasors of any Claims released hereby against Lender Group.

(f)         If any term, provision, covenant, or condition of the Release Provision is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of the provisions shall remain in full force and effect.

(g)         The Releasors acknowledge that they may hereafter discover facts in addition to or different from those that they now know or believe with respect to the Claims released herein, but the Releasors expressly shall have and intend to fully, finally and forever have released and discharged any and all such Claims.  The Releasors expressly waive any provision of statutory or decisional law to the effect that a general release does not extend to Claims that the releasing party does not know or suspect to exist in such party’s favor at the time of executing the release.

9.          COSTS, EXPENSES AND TAXES .  The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).

10.          SUBSIDIARY GUARANTORS’ ACKNOWLEDGMENT AND AGREEMENT .  By signing below, each Subsidiary Guarantor (a) acknowledges, consents and agrees to this Amendment, (b) acknowledges and agrees to any amendment to its obligations in respect of the Subsidiary Guaranty Agreement made pursuant to this Amendment, (c) acknowledges and agrees that its obligations in respect of the Subsidiary Guaranty Agreement and the Security Agreement are not released, diminished, waived, modified, impaired or affected in any manner by this Amendment or any of the provisions contemplated herein, (d) ratifies and confirms its obligations under the Subsidiary Guaranty Agreement and the Security Agreement, and (e) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, the Subsidiary Guaranty Agreement, the Security Agreement or any other Loan Documents or Obligations.

NINETEENTH AMENDMENT TO CREDIT AGREEMENT – Page  6


 

11.          EXECUTION IN COUNTERPARTS .  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.  For purposes of this Amendment, a counterpart hereof (or signature page thereto) signed and transmitted by any Person party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original.  The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature on an original document.

12.          GOVERNING LAW .  This Amendment and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment 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.

13.          WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT 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 AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

14.          HEADINGS .  Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

15.          ENTIRE AGREEMENT; NO COURSE OF DEALING .  THIS AMENDMENT IS A LOAN DOCUMENT.  THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND THE OTHER LOAN DOCUMENTS, AS AMENDED, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT NEITHER THE AMENDMENTS AND EXTENSIONS CONTAINED HEREIN NOR ANY OTHER AMENDMENTS OR EXTENSIONS GRANTED TO THE CREDIT PARTIES SHALL BE INTERPRETED OR CONSTRUED UNDER ANY CIRCUMSTANCES AS HAVING ESTABLISHED A COURSE OF DEALING OR COURSE OF CONDUCT BINDING UPON THE ADMINISTRATIVE AGENT, THE LENDERS, THE SWINGLINE LENDER OR THE ISSUING LENDER IN THE FUTURE OR OTHERWISE CREATING ANY FUTURE OBLIGATIONS ON THE PART OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE SWINGLINE LENDER OR THE ISSUING LENDER TO PROVIDE OR AGREE TO ANY SIMILAR AMENDMENT OR EXTENSION AT ANY TIME.

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NINETEENTH AMENDMENT TO CREDIT AGREEMENT – Page  7


 

IN WITNESS WHEREOF, this Amendment is executed as of the date first set forth above.

 

 

 

 

BORROWER:

 

 

 

 

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

 

 

 

 

By:

/s/ Craig Holmes

 

Name: Craig Holmes

 

Title:  Chief Financial Officer

 

Signature Page to Nineteenth Amendment to Credit Agreement


 

 

 

 

 

ADMINISTRATIVE AGENT AND LENDERS:

 

 

 

 

 

CENTRE LANE PARTNERS MASTER CREDIT FUND II, L.P,

 

as Administrative Agent and Lender

 

 

 

 

 

 

 

By:

/s/ Luke Gosselin

 

Name: Luke Gosselin

 

Title:  Managing Director

 

Signature Page to Nineteenth Amendment to Credit Agreement


 

 

 

 

 

CENTRE LANE PARTNERS IV, L.P.,

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Quinn Morgan

 

Name: Quinn Morgan

 

Title:  Managing Director

 

Signature Page to Nineteenth Amendment to Credit Agreement


 

 

 

 

 

ACKNOWLEDGED AND AGREED TO:

 

 

 

 

 

AS SUBSIDIARY GUARANTORS:

 

 

 

 

 

WILLIAMS INDUSTRIAL SERVICES GROUP, L.L.C.

 

BRADEN MANUFACTURING, L.L.C.

 

WILLIAMS INDUSTRIAL SERVICES, LLC

 

WILLIAMS SPECIALTY SERVICES, LLC

 

WILLIAMS PLANT SERVICES, LLC

 

CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC

 

WILLIAMS GLOBAL SERVICES, INC.

 

KOONTZ-WAGNER CUSTOM CONTROLS HOLDINGS LLC

 

GPEG, LLC

 

GLOBAL POWER TECHNICAL SERVICES, INC.

 

BRADEN HOLDINGS, LLC

 

GLOBAL POWER PROFESSIONAL SERVICES INC.

 

BRADEN CONSTRUCTION SERVICES, INC.

 

STEAM ENTERPRISES LLC

 

 

 

 

 

 

 

By:

/s/ Erin Gonzalez

 

Name: Erin Gonzalez

 

Title:  Vice President & Treasurer

 

Signature Page to Nineteenth Amendment to Credit Agreement


Exhibit 10.51

 

Execution Version

 

 

$45,000,000

SENIOR SECURED CREDIT AGREEMENT

Dated as of June 16, 2017

Among

GLOBAL POWER EQUIPMENT GROUP INC.,
as Borrower,

THE LENDERS PARTY HERETO,

and

CENTRE LANE PARTNERS MASTER CREDIT FUND II, L .P.
as Administrative Agent and Collateral Agent

 

 

 

 

 


 

Table of Contents

 

 

 

Page

 

 

ARTICLE I          DEFINITIONS AND ACCOUNTING TERMS

2

Section 1.01           Defined Terms

2

Section 1.02           Other Interpretive Provisions

34

Section 1.03           Accounting Terms

35

Section 1.04           Rounding

36

Section 1.05           References to Agreements, Laws, Etc.

36

Section 1.06           Times of Day

36

Section 1.07           Timing of Payment or Performance

36

Section 1.08           Currency Equivalents Generally

36

ARTICLE II         THE COMMITMENTS AND CREDIT EXTENSIONS

37

Section 2.01           The Loans

37

Section 2.02           Prepayments

37

Section 2.03           Repayment of Loans

41

Section 2.04           Interest

41

Section 2.05           Fees

42

Section 2.06           Computation of Interest and Fees

42

Section 2.07           Evidence of Indebtedness

42

Section 2.08           Payments Generally

43

Section 2.09           Sharing of Payments

45

ARTICLE III       TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

45

Section 3.01           Taxes

45

Section 3.02           Illegality

49

Section 3.03           Increased Cost and Reduced Return; Capital Adequacy

50

Section 3.04           Matters Applicable to All Requests for Compensation

51

Section 3.05           Survival

52

ARTICLE IV       CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

52

Section 4.01           Conditions to the Closing Date

52

ARTICLE V        REPRESENTATIONS AND WARRANTIES

55

Section 5.01           Existence, Qualification and Power; Compliance with Laws

55

Section 5.02           Authorization; No Contravention

56

Section 5.03           Governmental Authorization; Other Consents

56

Section 5.04           Binding Effect

57

Section 5.05           Financial Statements; No Material Adverse Effect

57

Section 5.06           Litigation

58

 

i


 

 

 

 

 

Section 5.07           Ownership of Property; Liens

58

Section 5.08           Perfection of Security Interests

58

Section 5.09           Environmental Compliance

59

Section 5.10           Taxes

60

Section 5.11           Compliance with ERISA

61

Section 5.12           Labor Matters

61

Section 5.13           Insurance

61

Section 5.14           Subsidiaries; Equity Interests

61

Section 5.15           Margin Regulations; Investment Company Act; PATRIOT Act

62

Section 5.16           Disclosure

62

Section 5.17           Intellectual Property

63

Section 5.18           Solvency

63

Section 5.19           Material Agreements

63

ARTICLE VI       AFFIRMATIVE COVENANTS

63

Section 6.01           Financial Statements

63

Section 6.02           Certificates; Reports; Other Information

66

Section 6.03           Notice Requirements; Other Information

67

Section 6.04           Environmental Matters

69

Section 6.05           Maintenance of Existence

71

Section 6.06           Maintenance of Properties

71

Section 6.07           Maintenance of Insurance

71

Section 6.08           Compliance with Laws

72

Section 6.09           Books and Records

72

Section 6.10           Inspection Rights/Lender Meetings

72

Section 6.11           Covenant to Guarantee Obligations and Give Security

72

Section 6.12           Use of Proceeds

75

Section 6.13           Further Assurances; Post‑Closing Undertakings

75

Section 6.14           Taxes

76

Section 6.15           End of Fiscal Years; Fiscal Quarters

76

Section 6.16           ERISA

77

Section 6.17           Permitted Servicing Joint Ventures

77

Section 6.18           Chief Restructing Officer

78

ARTICLE VII      NEGATIVE COVENANTS

78

Section 7.01           Liens

78

Section 7.02           Investments

80

Section 7.03           Indebtedness

81

Section 7.04           Fundamental Changes

84

Section 7.05           Dispositions

84

Section 7.06           Restricted Payments

85

Section 7.07           Change in Nature of Business

86

Section 7.08           Transactions with Affiliates

86

 

ii


 

 

 

 

 

Section 7.09           Prepayments of Certain Indebtedness; Modifications of Certain Indebtedness and Material Agreements

87

Section 7.10           Negative Pledge

87

Section 7.11           Amendments to Constitutive Documents

88

Section 7.12           Financial Covenant

88

Section 7.13           Sale Leasebacks

90

Section 7.14           Accounting Changes

91

Section 7.15           OFAC

91

Section 7.16           Braden Holdings, LLC

91

ARTICLE VIII     EVENTS OF DEFAULT AND REMEDIES

91

Section 8.01           Events of Default

91

Section 8.02           Remedies Upon Event of Default

94

Section 8.03           Application of Funds

94

Section 8.04           Other Amounts Due

95

ARTICLE IX        ADMINISTRATIVE AGENT AND OTHER AGENTS

95

Section 9.01           Appointment and Authorization of Agents

95

Section 9.02           Delegation of Duties

97

Section 9.03           Liability of Agents

97

Section 9.04           Reliance by Agents

97

Section 9.05           Notice of Default

98

Section 9.06           Credit Decision; Disclosure of Information by Agents

98

Section 9.07           Indemnification of Agents

99

Section 9.08           Agents in their Individual Capacities

99

Section 9.09           Successor Agents

99

Section 9.10           Administrative Agent May File Proofs of Claim

100

Section 9.11           Release of Collateral and Guaranty

101

ARTICLE X          MISCELLANEOUS

102

Section 10.01         Amendments, Etc.

102

Section 10.02         Notices and Other Communications; Facsimile and Electronic Copies

104

Section 10.03         No Waiver; Cumulative Remedies

105

Section 10.04         Costs and Expenses

106

Section 10.05         Indemnification by the Borrower

106

Section 10.06         Payments Set Aside

108

Section 10.07         Successors and Assigns

108

Section 10.08         Confidentiality

111

Section 10.09         Setoff

112

Section 10.10         Counterparts

112

Section 10.11         Integration

113

Section 10.12         Survival of Representations and Warranties

113

Section 10.13         Severability

113

Section 10.14         GOVERNING LAW

113

 

iii


 

 

 

 

 

Section 10.15        WAIVER OF RIGHT TO TRIAL BY JURY

114

Section 10.16         Binding Effect

114

Section 10.17         Lender Action

114

Section 10.18         PATRIOT Act

115

Section 10.19         No Advisory or Fiduciary Responsibility

115

 

 

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SCHEDULES

 

Schedule 1

Guarantors

Schedule 2.01

Commitments

Schedule 5.02

Authorizations; No Contravention

Schedule 5.03

Governmental Authorization; Other Consents

Schedule 5.06

Litigation

Schedule 5.07(b)

Real Property/Leasehold Property

Schedule 5.08

Collateral Filings and Perfection Matters

Schedule 5.09

Environmental Compliance

Schedule 5.10(a)

Taxes

Schedule 5.10(b)

Taxes

Schedule 5.13

Insurance Policies

Schedule 5.14

Subsidiaries and Other Equity Investments

Schedule 5.17

Intellectual Property

Schedule 5.19

Material Agreements

Schedule 6.13

Post‑Closing Undertakings

Schedule 7.01(b)

Existing Liens

Schedule 7.02(d)

Existing Investments

Schedule 7.03(b)

Surviving Indebtedness

Schedule 7.03(c)

Existing Capital Leases

Schedule 7.03(i)

Intercompany Notes

Schedule 7.03(l)

Existing Letters of Credit

Schedule 7.05

Subsidiary Transaction

Schedule 7.13

Existing Sale Leasebacks

Schedule 10.02

Administrative Agent’s Office, Certain Addresses for Notices

v


 

EXHIBITS

 

 

 

 

Exhibit A

Form of Prepayment Notice

Exhibit B

Form of Note

Exhibit C

Form of Compliance Certificate

Exhibit D

Form of Assignment and Assumption

Exhibit E

Form of Guaranty

Exhibit F

Form of Security Agreement

Exhibit G

Form of Securities Pledge Agreement

Exhibit H

Form of Intellectual Property Security Agreement

Exhibit I

Form of Officer’s Certificate

Exhibit J

Form of Solvency Certificate

Exhibit K

Form of Mortgage

 

 

 

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SENIOR SECURED CREDIT AGREEMENT

This SENIOR SECURED CREDIT AGREEMENT (“ Agreement ”) is entered into as of June 16, 2017 among GLOBAL POWER EQUIPMENT GROUP INC., a Delaware corporation (the “ Company ” or the “ Borrower ”), each financial institution from time to time party hereto as lender (each, a “ Lender ” and collectively, the “ Lenders ”), and CENTRE LANE PARTNERS MASTER CREDIT FUND II, L.P. , a Delaware limited partnership, as administrative agent for the Lenders (in such capacity, and together with its successors and assigns, the “ Administrative Agent ”) and as collateral agent for the Lenders (in such capacity, and together with its successors and assigns, the “ Collateral Agent ”).

RECITALS

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Article I hereof;

WHEREAS, Lenders have agreed to extend Loans to the Borrower in an aggregate principal amount not to exceed $45,000,000, the proceeds of which will be used to (a) to refund, refinance and replace the existing secured asset-based revolving credit facility on the Closing Date, (b) to provide working capital and for other general corporate purposes permitted hereunder and (c) for fees and expenses related to the Transaction;

WHEREAS, the Borrower has agreed to secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on substantially all of its assets, including a first priority pledge of all of the Equity Interests of each of its Domestic Subsidiaries and each Specified Foreign Subsidiary, and 65% of the voting Equity Interests of each of its direct Foreign Subsidiaries (other than the Specified Foreign Subsidiaries); and

WHEREAS, the Guarantors have agreed to guarantee the obligations of the Borrower hereunder and to secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on substantially all of their respective assets, including a first priority pledge of all of the Equity Interests of each of their respective Domestic Subsidiaries (including Company) and each Specified Foreign Subsidiary, and 65% of the voting Equity Interests of each of their respective direct Foreign Subsidiaries (other than the Specified Foreign Subsidiaries).

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained and of the Loans and extensions of credit herein referred to, the parties hereto agree as follows:

 


 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01         Defined Terms .  As used in this Agreement, the following terms shall have the meanings set forth below:

2018 Amortization Payment ” has the meaning specified in Section 2.03(b) .

ABN AMRO Facility ” means the asset-based facility made available to Braden-Europe B.V., Global Power Professional Services Netherlands B.V. and Global Power Netherlands B.V. (collectively, “ Global Power Netherlands ”), pursuant to the terms of that certain Credit Agreement, dated as of June 13, 2008, by and among ABN AMRO Bank N.V., as lender, and Global Power Netherlands, as borrowers, as previously amended and as may be further amended or supplemented from time to time in accordance with the terms of this Agreement.

Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions).

Administrative Agent ” has the meaning specified in the first paragraph of this Agreement or any successor administrative agent appointed in accordance with Section 9.09 .

Administrative Agent’s Office ” means, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

Affiliate ” means, in respect of any Person:

(a)      any Person which, directly or indirectly, controls, is controlled by or is under common control with such Person; and for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” or “under common control with”) means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting Equity Interests or by contract or otherwise;

(b)      any Person who beneficially owns or holds 10% or more of any class of shares (or, in the case of a Person that is not a corporation, 10% or more of the partnership or other Equity Interests) of such Person; or

(c)      any Person, 10% or more of any class of shares (or in the case of a Person that is not a corporation, 10% or more of the partnership or other Equity Interests) of which is beneficially owned or held by such Person or a Subsidiary of such Person.

2


 

Agent‑Related Persons ” means the Agents, together with their respective Affiliates, and the officers, directors, employees, partners, agents and attorneys‑in‑fact of such Persons and Affiliates.

Agents ” means, collectively, the Administrative Agent and the Collateral Agent.

Aggregate Commitments ” means the Commitments of all the Lenders as in effect from time to time.  As of the Closing Date, the amount of the Aggregate Commitments is $45,000,000.

Agreement ” has the meaning specified in the introductory paragraph hereto.

Applicable Lending Office ” means for any Lender, such Lender’s office, branch or affiliate as notified to the Administrative Agent and the Borrower or as otherwise specified in the Assignment and Assumption pursuant to which such Lender became a party hereto, any of which offices may, subject to Section 3.01(e) and Section 3.02 , be changed by such Lender upon ten (10) days’ prior written notice to the Administrative Agent and the Borrower; provided that for the purposes of the definition of “Excluded Taxes” and Section 3.01 , any such change shall be deemed an assignment made pursuant to an Assignment and Assumption.

Approved Fund ” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or Affiliate of an entity that administers, advises or manages a Lender.

Assignees ” has the meaning specified in Section 10.07(b) .

Assignment and Assumption ” means an Assignment and Assumption substantially in the form of Exhibit D .

Attorney Costs ” means and includes all reasonable and documented fees, out‑of‑pocket expenses and actual disbursements of any law firm or other external legal counsel.

Attributable Indebtedness ” means, at any date, (a) in respect of any Capital Lease Obligation (other than a lease resulting from a Sale Leaseback) of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation of any Person, the capitalized or principal 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 or other agreement were accounted for as a Capital Lease, (c) in respect of any Sale Leaseback, the lesser of (i) the present value, discounted in accordance with GAAP at the interest rate implicit in the related lease, of the obligations of the lessee for net rental payments over the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor be extended) and (ii) the fair market value of the assets subject to such transaction, and (d) all Synthetic Debt of such Person. 

3


 

Audited Financial Statements ” means the audited financial statements described in Section 4.01(e) .

Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy”.

Borrower ” has the meaning specified in the introductory paragraph hereto.

Borrowing ” means a borrowing consisting of Loans made by 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 or required to close under the Laws of, or are in fact closed in, the State of New York; provided ,   however , that when used in connection with determining the LIBO Rate, the term “ Business Day ” shall exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

Capital Expenditures ” means, for any period and with respect to any Person, any and all expenditures made by such Person or any of its Subsidiaries in such period for assets added to or reflected in its property, plant and equipment accounts or other similar capital asset accounts or comparable items or any other capital expenditures that are, or should be, set forth as “additions to plant, property and equipment” on the consolidated financial statements of such Person and its Subsidiaries prepared in accordance with GAAP, whether such asset is purchased for cash or financed as an account payable or by the incurrence of Indebtedness, accrued as a liability or otherwise.

Capital Lease ” means, with respect to any Person, any leasing or similar arrangement conveying the right to use any property, whether real or personal property, or a combination thereof, by that Person as lessee that, in conformity with GAAP, is required to be accounted for as a capital lease on the balance sheet of such Person.

Capital Lease Obligation ” means, with respect to any Person, all monetary or financial obligations of such Person and its Subsidiaries under any Capital Leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date on which such lease may be terminated by the lessee without payment of a penalty; provided that any obligations that were not required to be included on the balance sheet of such Person as capital lease obligations when incurred but are subsequently re‑characterized as capital lease obligations due to a change in accounting rules after the Closing Date shall for all purposes hereunder not be treated as a Capital Lease Obligation.

Cash Equivalents ” means any of the following, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens other than Liens created under the Collateral Documents and having a maturity of not greater than 365 days from the date of acquisition thereof: (a) readily marketable direct obligations of the Government of the United

4


 

States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (b) insured certificates of deposit of or time deposits with any domestic commercial bank having capital and surplus in excess of $500,000,000, (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the Government of the United States, (d) securities with maturities of 365 days or less from the date of acquisition that are issued or fully guaranteed by any state, district or territory of the United States, by any political subdivision or taxing authority of any such state, district or territory or by any foreign government, the securities of which state, district or territory, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s, (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition, (f) money market mutual or similar funds that invest substantially all of their assets in one or more type of securities satisfying the requirements of clauses (a) through (e) of this definition, or (g) Investments, classified in accordance with GAAP as Current Assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions having capital of at least $500,000,000, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a) and (b) of this definition.

Cash Flow Budget ” has the meaning specified in Section 6.01(c)(iii) .

Cash Interest ” has the meaning specified in Section 2.04(a) .

Cash Interest Expense ” means, for any period and with respect to any Person, Consolidated Interest Expense of such Person for such period that is paid in cash.

Casualty Event ” means any casualty, loss, damage, destruction or other similar loss with respect to real or personal property or improvements.

CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.

CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

CFC ” means an entity that is a controlled foreign corporation within the meaning of Section 957 of the Code and with respect to which the Borrower is a “United States shareholder,” within the meaning of Section 951(b) of the Code; provided that for purposes of this Agreement, no Specified Foreign Subsidiary shall be regarded as a CFC.

CFC Pledge Restrictions ” has the meaning specified in Section 6.11(h) .

Change in Law ” means (a) the adoption of any law, treaty, order, policy, rule or regulation after the date of this Agreement, (b) any change in any law, treaty, order, policy, rule

5


 

or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) the making or issuance of any guideline, request or directive issued or made after the date hereof by any central bank or other Governmental Authority (whether or not having the force of law); provided that notwithstanding anything herein to the contrary, (x) the Dodd‑Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements 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 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, issued or implemented; provided that increased costs as a result of a Change in Law pursuant to clauses (x) and (y) above shall only be reimbursable by the Borrower to a Lender to the extent such Lender is requiring reimbursement therefor generally from similarly situated borrowers under comparable syndicated credit facilities.

Change of Control ” means (i) any Person or “group” (within the meaning of Rules 13d‑3 and 13d‑5 under the Exchange Act) (a) shall have acquired beneficial ownership of 25% or more on a fully diluted basis of the voting and/or economic interest in the Equity Interests of the Company or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of the Company; or (ii) the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of the Company cease to be occupied by Persons who either (a) were members of the board of directors of the Company on the Closing Date, or (b) were nominated for election by the board of directors of the Company, a majority of whom were directors on the Closing Date or whose election or nomination for election was previously approved by a majority of such directors.

Chief Restructuring Officer ” has the meaning specified in Section 6.19 .

Closing Date ” means the date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .

Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time.

Collateral ” means all the “Collateral” as defined in any Collateral Document and all other property or assets that are required under the terms of the Loan Documents to be subject to Liens in favor of the Administrative Agent and/or the Collateral Agent for the benefit of the Secured Parties and shall include the Mortgaged Properties, if any.

Collateral Agent ” has the meaning specified in the first paragraph of this Agreement or any successor collateral agent appointed in accordance with Section 9.09 .

6


 

Collateral and Guarantee Requirement ” means, at any time, the requirement that:

(a)      the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.01 or pursuant to Section 6.11 or Section 6.13 at such time set forth in each such Section, in each case duly executed by each Loan Party party thereto;

(b)      all Obligations shall have been unconditionally guaranteed (the “ Guarantees ”) jointly and severally on a senior basis by each Domestic Subsidiary of the Borrower (other than any Subsidiary that is treated as an entity disregarded from its owner for U.S. federal income tax purposes and is Wholly-owned by a CFC, subject to Section 6.11(h)) , including, as of the Closing Date, those that are listed on Schedule 1 hereto (each, a “ Guarantor ”);

(c)      the Obligations and the Guarantees shall have been secured by a first priority security interest, in (i) all the Equity Interests of any direct or indirect Domestic Subsidiary of the Borrower (other than any Subsidiary that is treated as an entity disregarded from its owner for U.S. federal income tax purposes and is Wholly-owned by a CFC), (ii) 65% of the issued and outstanding voting Equity Interests and 100% of the non‑voting Equity Interests of each Subsidiary that is treated as a CFC for U.S. federal income tax purposes and that is directly held by the Borrower or by any Domestic Subsidiary of the Borrower; provided that any Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulations Section 1.956‑2(c)(2) shall be treated as voting Equity Interests for purposes of this clause (c) , and (iii) all of the Equity Interests of any Subsidiary that is a Foreign Subsidiary other than a CFC that is directly held by the Borrower or by any Subsidiary of the Borrower (other than any Subsidiary that is a CFC or that is treated as an entity disregarded from its owner for U.S. federal income tax purposes and is Wholly-owned by a CFC), and, in the case of each of clauses (i), (ii) and (iii) above, the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;

(d)      the Obligations and the Guarantees shall have been secured by a first‑priority security interest, in all Indebtedness of the Borrower and each Subsidiary that is owing to any Loan Party, which shall be (to the extent required by the Collateral Documents) evidenced by a promissory note or an instrument and shall have been pledged pursuant to the applicable Collateral Document, and the Collateral Agent shall have received all such promissory notes or certificated instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;

(e)      except to the extent otherwise provided hereunder or under any Collateral Document, the Obligations and the Guarantees shall have been secured by a perfected first priority security interest (subject to Liens permitted under Section 7.01 ) in, and mortgages on, substantially all tangible and intangible assets of the Borrower and each Guarantor (including but not limited to accounts receivable, deposit accounts, inventory, machinery and equipment, investment property, cash, Intellectual Property, other general

7


 

intangibles, owned real property, intercompany Indebtedness and proceeds of the foregoing); provided ,   however , that (v) no security interest in fee‑owned real property other than Material Owned Property shall be required, (w) no security interest in motor vehicles and other assets subject to certificates of title shall be required, (x) subject to Section 6.13 , no security interests (including in respect of interests in partnerships, joint ventures and other non‑Wholly‑owned entities) to the extent (and for the duration) that the granting of a security interest in such asset would be prohibited by applicable law or agreements containing enforceable anti‑assignment clauses not overridden by the Uniform Commercial Code or other applicable law shall be required, (y) any security interest in Intellectual Property shall exclude any intent‑to‑use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent‑to‑use trademark application under applicable federal law and (z) no security interest in property created or incurred pursuant to Section 7.01(h) subject to Capital Lease or purchase money financing permitted under Section 7.03(c) to the extent (and for the duration) that the granting of a security interest in such asset would be prohibited under the agreement evidencing or otherwise governing the related Indebtedness and not overridden by the Uniform Commercial Code or other applicable law (the assets described in the foregoing clauses (v) through (z), collectively, “ Excluded Property ”).

(f)      none of the Collateral shall be subject to any Liens other than Liens permitted by Section 7.01 ; and

(g)      The Administrative Agent shall have received the Mortgages with respect to each Material Owned Property and with respect to each Leasehold Property required to be delivered pursuant to this Collateral and Guarantee Requirement or Section 6.11 at such time as set forth therein (the “ Mortgaged Properties ”), together with:

(i)      evidence that counterparts of the Mortgages with respect to the Mortgaged Properties have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices as necessary to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties (subject only to Liens of the nature referred to in Section 5.07(b) ) along with evidence reasonably satisfactory to the Administrative Agent that all filing and recording taxes and fees payable with respect to the Mortgages have been paid or received by the issuer of the Mortgage Policies (or, in the event that the Administrative Agent waives a Mortgage Policy for any Mortgaged Property, an escrow agent reasonably satisfactory to the Administrative Agent);

(ii)    fully paid American Land Title Association Lender’s Extended Coverage (or other reasonably satisfactory coverage if such coverage is not available in the applicable jurisdiction) title insurance policies (the “ Mortgage Policies ”) in form and substance reasonably satisfactory to the Administrative Agent, together with such endorsements that are reasonably required by the

8


 

Administrative Agent and which lenders typically receive in the jurisdiction where the Mortgaged Property is located, in an amount reasonably acceptable to the Administrative Agent, issued by title insurers reasonably acceptable to the Administrative Agent and insuring the Mortgages to be valid first and subsisting Liens on the real property described therein, in a customary form in the jurisdiction where the Mortgaged Property is located free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances ( provided that if a survey is not available pursuant to paragraph (iii) below, such Mortgage Policies may include the standard survey exception and the Administrative Agent shall not require any endorsement that will require delivery of a survey), except Liens of the nature referred to in Section 5.07(b) ;

(iii)   American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, dated no more than ninety (90) days before the date of delivery of such surveys (or such date as the Administrative Agent agrees in its reasonable discretion), certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the real property described in such surveys is located, showing no material defects except Liens of the nature referred to in Section 5.07(b) and otherwise reasonably acceptable to the Administrative Agent;

(iv)    satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 , or otherwise required by the terms of the Mortgages, in respect of Mortgaged Properties;

(v)     favorable opinions of local counsel for the Loan Parties (i) in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent and (ii) in states in which the Loan Parties to the Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of the Mortgages, in form and substance reasonably satisfactory to the Administrative Agent;

(vi)    (A) evidence as to whether each Material Owned Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “ Flood Hazard Property ”) pursuant to a standard flood hazard determination form ordered and received by the Collateral Agent, and (B) if such Material Owned Property is a Flood Hazard Property, (1) evidence as to whether the community in which such Material Owned Property is located is participating in the National Flood Insurance Program, (2) the applicable Loan Party’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such Material Owned Property is a Flood

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Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (3) copies of the applicable Loan Party’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent and naming the Collateral Agent as sole loss payee on behalf of the Secured Parties; and

(vii)   such consents and agreements of other third parties, such estoppel letters and other confirmations, and such other actions that, in each case, the Administrative Agent and the Collateral Agent may reasonably deem necessary in order to create valid and subsisting Liens on the property described in the Mortgages shall have been delivered or taken, in each case to the extent the same can be obtained or taken with the use of commercially reasonable efforts.

The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the delivery of particular documents with respect to, particular assets if and for so long as the Administrative Agent and the Borrower mutually agree in their reasonable discretion that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in relation to the benefits to be obtained by the Lenders therefrom. 

The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the time as set forth therein for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in its discretion, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

Collateral Documents ” means, collectively, the Security Agreement, the Securities Pledge Agreement, the Intellectual Property Security Agreement, the Mortgages, any collateral assignments, any security agreements, pledge agreements or other similar agreements, or any supplements to any of the foregoing, delivered to the Collateral Agent and the Lenders pursuant to the Collateral and Guarantee Requirement, Section 4.01(a)(iii) ,   Section 6.11 ,  or Section 6.13 , the Guaranty and each of the other agreements, instruments or documents that creates or purports to create a Lien or Guarantee in favor of the Collateral Agent for the benefit of the Secured Parties.

Collateral Questionnaire   means a certificate in form satisfactory to Collateral Agent that provides information with respect to the personal or mixed property of each Loan Party.

Commitment ” has the meaning specified in Section 2.01(a) .

Communications ” has the meaning specified in Section 10.02(e) .

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Company ” has the meaning specified in the first paragraph of this Agreement.

Compensation Period ” has the meaning specified in Section 2.08(c)(ii) .

Competitor ” means any Person that is engaged in the same or substantially similar business as the business conducted by the Borrower and its Subsidiaries on the Closing Date and any other Person designated by the Borrower as a “competitor” of the Borrower or any of its Subsidiaries (excluding any bank, financial institution, debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing in loans, commitments and similar extensions of credit in the ordinary course of its business) by written notice delivered to the Administrative Agent from time to time.

Compliance Certificate ” means a certificate substantially in the form of Exhibit C .

Consolidated Adjusted EBITDA ” means, for any period and with respect to any Person, Consolidated Net Income of such Person and its Subsidiaries for such period, plus  

(a)       without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of:

(i)       Consolidated Interest Expense, deferred financing fees, non‑cash interest expenses, upfront financing and other agent or lender fees and any amortization of original issue discount in connection with the Facility and any other Indebtedness permitted under this Agreement of such Person and its Subsidiaries for such period;

(ii)      consolidated income and franchise tax expense of such Person and its Subsidiaries for such period;

(iii)     all amounts properly attributable to depreciation and amortization and other non-cash items for such period, including any non-cash write-downs or non-cash write-offs including fixed asset impairments or write-downs, intangible asset impairments and deferred tax asset write-offs (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future) of such Person and its Subsidiaries for such period;

(iv)     amounts incurred in Fiscal Years ending 2017 and 2018 that are necessary to pay any and all documented fees, expenses, commissions, costs or other charges attributable to the restatement of the Company’s financial statements; provided that such amounts shall not exceed $4,000,000 in Fiscal Year 2017 and $1,000,000 in Fiscal Year 2018;

(v)      any extraordinary losses and unusual or non‑recurring charges, or any integration, facilities closing or relocation costs and curtailments or modifications to pension and post‑retirement employee benefit plans in an aggregate amount not to exceed $1,000,000 in any Fiscal Year;

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(vi)     any severance costs incurred prior to the end of Fiscal Year 2017, in an aggregate amount not to exceed $2,000,000;

(vii)    amounts necessary to pay any documented fees, expenses, commissions, costs or other charges related to consulting or advisory services provided to the Company or its Subsidiaries, together with any waiver or amendment fees incurred in connection with the Company’s existing secured asset-based revolving credit facility, in each case, prior to the Closing Date in an aggregate amount not to exceed $1,000,000;

(viii)   non-cash stock compensation expense;

(ix)     non‑cash expenses recognized due to purchase accounting;

(x)      any bank fees, expenses, commissions, costs or other charges related to the Indebtedness being refinanced in connection with the Transaction;

(xi)     any losses attributable to foreign currency translation or exchange;

(xii)    one-time, non-recurring customary and documented costs and expenses deducted from net income during such period in connection with the consummation of the Transaction and the negotiation, execution and delivery of the Loan Documents;

minus

(b)       without duplication and to the extent included in determining such Consolidated Net Income of such Person and its Subsidiaries, any non‑cash additions to Consolidated Net Income of such Person and its Subsidiaries for such period (other than (i) the accrual of revenue or recording of receivables in the ordinary course of business and (ii) the reversal of any accrual of a reserve referred to clause (a)(iv) above); minus  

(c)       any gains attributable to foreign currency translation or exchange; minus

(d)       without duplication and to the extent included in determining such Consolidated Net Income of such Person and its Subsidiaries, any extraordinary or non-recurring non‑cash gains (or plus extraordinary non‑cash losses) for such period and any gains (or plus losses) realized in connection with any Disposition of such Person and its Subsidiaries during such period, all determined on a consolidated basis in accordance with GAAP. 

Consolidated Interest Expense ” means, for any period and with respect to any Person, the total consolidated interest expense of such Person and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP excluding deferred financing fees (including any Upfront Fee PIK Amount), non‑cash interest expense (including any accreting PIK Interest), non‑cash debt amortization, upfront financing fees and any amortization of original issue discount in connection with the Facility and any other Indebtedness permitted under this Agreement plus , without duplication (i) imputed interest on Capital Lease Obligations of such Person and its Subsidiaries for such period; (ii) commissions, discounts, and participation

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fees payable pursuant to this Agreement and issuance fees and other fees and charges owed by such Person or any of its Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings for such period; provided that, in respect of any letters of credit secured by cash collateral, the amount of such commissions, discounts and other fees and charges shall be determined on a net basis after accounting for any interest income on deposited amounts with respect thereto; (iii) cash contributions to any employee stock ownership plan or similar trust made by such Person or any of its Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than such Person or a Wholly‑Owned Subsidiary of such Person) in connection with Indebtedness incurred by such plan or trust for such period; (iv) all interest paid or payable with respect to discontinued operations of such Person or any of its Subsidiaries for such period; (v) the interest portion of any deferred payment obligations of such Person or any of its Subsidiaries for such period; and (vi) all interest on any Indebtedness of such Person or any of its Subsidiaries of the type described in clause (f) or (g) of the definition of “Indebtedness” for such period, to the extent actually paid by such Person or any of its Subsidiaries; provided that Consolidated Interest Expense shall be calculated after giving effect to Swap Contracts (including associated costs), but excluding unrealized gains and losses with respect to Swap Contracts.

Consolidated Net Income ” means, for any period and for any Person, the net income or loss of such Person and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded for any such Person therefrom (i) the income or loss of any Person (other than consolidated Subsidiaries of such Person)) in which any other Person (other than such Person or any of its Subsidiaries) has an interest, except to the extent of the amount of dividends or other distributions actually paid to such Person or any of its Subsidiaries by such Person during such period, (ii) the cumulative effect of a change in accounting principles during such period, (iii) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with such Person or any of its Subsidiaries or that Person’s assets are acquired by such Person or any of its Subsidiaries, (iv) gains and losses from the early extinguishment of Indebtedness and (v) (to the extent not included in clauses (i) through (iv) above) any net extraordinary gains or net extraordinary losses. In no event shall “Consolidated Net Income” include the income or loss of any Permitted Servicing Joint Venture, except to the extent of the amount of dividends or other distributions actually paid to the Borrower or any of its Subsidiaries by a Permitted Servicing Joint Venture during such period.

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.

Credit Extension ” means a Borrowing.

Current Assets ” means, at any date, all assets of the Loan Parties which under GAAP would be classified as current assets (excluding any cash or Cash Equivalents).

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Current Liabilities ” means, at any date, all liabilities of the Loan Parties which under GAAP would be classified as current liabilities, other than current maturities of long term Indebtedness which is not then in default or otherwise due and payable.

Debt Equivalents ” means, in respect of any Person, (i) any Equity Interest of such Person which by its terms (or by the terms of any security for which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event or otherwise (including an event which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible into or exchangeable for Indebtedness or Debt Equivalents, or (C) is redeemable or subject to any repurchase requirement arising at the option of the holder thereof, in whole or in part, on or prior to the first anniversary following the Maturity Date, (ii) if such Person is a Subsidiary of the Borrower, any preferred stock of such Person which by its terms is mandatorily redeemable or redeemable at the option of the holder prior to the date which is one hundred eighty (180) days after the applicable maturity date provided in clause (i) above and (iii) any Disqualified Equity Interests of such Person.

Debt Service ” means, for any period, Cash Interest Expense of Borrower and its Subsidiaries for such period plus scheduled principal amortization of all Indebtedness of Borrower and its Subsidiaries for such period, excluding any principal repaid on or about the Closing Date with proceeds of the Loans.

Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, fraudulent transfer, reorganization, or similar debtor relief Laws of the United States or any similar foreign, federal or state law for the relief of debtors from time to time in effect and affecting the rights of creditors generally.

Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

Default Rate ” means an interest rate equal to the interest rate otherwise applicable to such Loan plus 5.0% per annum, in each case, to the fullest extent permitted by applicable Laws.

Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition of any asset or property by a Loan Party (including any Sale Leaseback and any sale of Equity Interests, but excluding any issuance by a Loan Party of its own Equity Interests), 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; provided that Dispositions shall include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Loan Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification).

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Disqualified Equity Interests ” means, with respect to any Person, any Equity Interest of such Person which, by its terms, or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable, or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date; provided that, if such Equity Interests are issued pursuant to a plan for the benefit of employees of Borrower or any of its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Borrower or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

Dollars ” means lawful money of the United States.

Domestic Subsidiary ” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.

ECF Percentage ” has the meaning specified in Section 2.02(b)(i) .

Eligible Assignee ” means, in respect of an assignment made by a Lender pursuant to Section 10.07 , and in addition to those Persons approved as required thereunder, (a) a Lender and (b) an Approved Fund; provided , that in no event shall (x) a natural person or (y) the Borrower or any of its Affiliates be an “Eligible Assignee”; provided ,   further , that so long as no Event of Default pursuant to Section 8.01(a) or (f) has occurred and is continuing, no Competitor shall be an “Eligible Assignee”.

Environmental Action ” means any action, suit, demand, demand letter, claim, notice of non‑compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged exposure, injury or threat to health and safety as it relates to any Hazardous Material or the environment, including, without limitation, (a) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages relating to Releases of Hazardous Materials or actual or alleged violations of Environmental Laws and (b) by any Governmental Authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

Environmental Laws ” means any and all applicable federal, provincial, local and foreign Laws, decrees, consent orders, consent agreements or other governmental restrictions relating to the environment, human health and safety or to the manufacture, processing,

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distribution, use, treatment, storage, disposal, transport, Release or handling of, or exposure to, Hazardous Materials.

Environmental Liability ” in respect of any Person, any and all legal obligations and liabilities under Environmental Laws, including for any Release caused by such Person or which is discovered or uncovered during the ownership or control of any real property by such Person and which adversely impacts any Person, property or the environment whether or not caused by a breach of applicable laws (including Environmental Laws).

Environmental Permit ” means any permit, approval, hazardous waste identification number, license or other authorization issued by or submitted to a Governmental Authority and required under any Environmental Law.

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, as amended from time to time and Treasury regulations promulgated and rulings issued thereunder.

ERISA Affiliate ” means any trade or business (whether or not incorporated) that is under common control with any Loan Party and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.

ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations at any facility of any Loan Party or ERISA Affiliate as described in Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is insolvent or is in reorganization within the meaning of Title IV of ERISA (or that is in endangered or critical status, within the meaning of Section 305 of ERISA); (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, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an 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 or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under

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Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (g) a determination that any Pension Plan is, or is expected to be, in “at‑risk” status (within the meaning of Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); or (h) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Pension Plan.

Event of Default ” has the meaning specified in Section 9.01 .

Excess ” has the meaning specified in Section 3.02(b).

Excess Cash Flow ” means, for the most recently completed Test Period ending on the last day of a Fiscal Year, Consolidated Adjusted EBITDA of Borrower and its Subsidiaries for such period, minus , without duplication:

(a)      Debt Service for such period;

(b)      permanent repayments of Indebtedness (so long as not already reflected in Debt Service) made with cash by Borrower and its Subsidiaries during such period (it being understood that the foregoing deductions shall not duplicate deductions from Excess Cash Flow taken pursuant to Section 2.02(b)(i) );

(c)      income and franchise taxes of Borrower and its Subsidiaries that were paid in cash during such period or will be paid within six months after the end of such period and for which reserves have been established;

(d)      the absolute value of the difference, if negative, of the amount of Net Working Capital at the end of the prior Test Period in excess of the amount of Net Working Capital at the end of such period;

(e)      amounts included in Consolidated Adjusted EBITDA by operation of clause (a)(vi) of the definition thereof; and

(f)       losses excluded from the calculation of Consolidated Adjusted EBITDA by operation of clause (c) of the definition thereof that are paid in cash during such period;

provided that any amount deducted pursuant to any of the foregoing clauses that will be paid after the close of such period shall not be deducted again in a subsequent period; plus , without duplication:

(1)      the difference, if positive, of the amount of Net Working Capital at the end of the prior period in excess of the amount of Net Working Capital at the end of such period;

(2)      gross proceeds received (or, in lieu of receipt, paid to a third party on behalf of Borrower or any of its Subsidiaries) during such period of any Indebtedness to

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the extent used to finance any Capital Expenditure (other than Indebtedness under this Agreement to the extent there is no corresponding deduction to Excess Cash Flow above in respect of the use of such borrowings); and

(3)      income or gain excluded from the calculation of Consolidated Adjusted EBITDA by operation of clause (c) of the definition thereof that is realized in cash during such Excess Cash Flow period.

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time.

Exchange Rate ” means on any day with respect to any currency other than Dollars, the rate at which such currency may be exchanged into Dollars, as set forth at approximately 12:00 noon (New York, New York time) on such day on the Reuters Fedspot page for such currency; in the event that such rate does not appear on any Reuters page, the Exchange Rate shall be determined by the Administrative Agent to be the rate quoted by it at the spot rate for Dollars purchased by it with Euros through its principal foreign exchange trading office at approximately 12:00 noon (New York, New York time) on the date as of which the foreign computation is made.

Excluded Property ” has the meaning specified in the definition of “Collateral and Guarantee Requirement.”

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable 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 Foreign 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 or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01 , 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(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

Existing Letters of Credit ” means those letters of credit outstanding as of the date hereof and set forth on Schedule 7.03(l) , issued by Wells Fargo Bank National Association for the account of the Borrower or any of its Subsidiaries.

Facility ” means the facility provided under this Agreement.

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FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable), 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 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 charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

Financial Covenants ” means the covenants set forth in Section 7.12 .

Fiscal Year ” means the fiscal year of the Borrower, the Company and their Subsidiaries, as applicable, ending on December 31 of each calendar year.

Fixed Charge Coverage Ratio ” means with respect to any Test Period, the ratio of (a) Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries for such Test Period to (b) Debt Service for such Test Period (excluding the amortization of non-cash financing expenses to the extent such expenses would otherwise be included in calculating Debt Service of the Borrower and its Subsidiaries).

Flood Hazard Property ” has the meaning specified in clause (g)(vi)  of the definition of “Collateral and Guarantee Requirement.”

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 a resident or organized under the laws of a jurisdiction other than that in which the Borrower is a resident for tax purposes.

Foreign Subsidiary ” shall mean any Subsidiary that is not a Domestic Subsidiary.

FRB ” means the Board of Governors of the Federal Reserve System of the United States.

Fund ” means any Person (other than an individual) 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.

GAAP ” means generally accepted accounting principles in the United States, as in effect from time to time.

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Global Power Netherlands ” has the meaning assigned in the definition of “ ABN AMRO Facility ”.

Governmental Authority ” means any nation or government, any provincial, state, local, municipal or other political subdivision thereof, and any entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Governmental Authorization ” means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.

Granting Lender ” has the meaning specified in Section 10.07(g) .

Guarantee ” has the meaning specified in the definition of “Collateral and Guarantee Requirement” and shall be substantially in the form of Exhibit E .

Guarantee Obligations ” means, with respect to any Person, any obligation or arrangement of such Person to guarantee or intended to guarantee any Indebtedness or other payment obligations (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co‑making, discounting with recourse or sale with recourse by such Person of the Obligation of a primary obligor, (b) the obligation to make take‑or‑pay or similar payments, if required, regardless of non‑performance by any other party or parties to an agreement or (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof.  The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Guarantee Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

Guarantor Subsidiary ” means each Guarantor that is a Domestic Subsidiary.

Guarantors ” has the meaning specified in the definition of “Collateral and Guarantee Requirement.”

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Guaranty ” means, collectively, (a) the Guarantee and (b) each other guaranty and guaranty supplement delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

Hazardous Materials ” means any material, substance or waste that is regulated, classified, or otherwise characterized under or pursuant to any Environmental Law as “hazardous,” “toxic,” a “pollutant,” a “contaminant,” a “deleterious substance,” “dangerous goods,” “radioactive” or words of similar meaning or effect, including petroleum and its by‑products, asbestos, polychlorinated biphenyls, radon, greenhouse gases, mold, urea formaldehyde insulation, chlorofluorocarbons and all other ozone‑depleting substances.

Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable and other accrued liabilities incurred in the ordinary course of business not past due for more than one hundred twenty (120) days after its stated due date (except for accounts payable contested in good faith), (ii) any earn‑out obligation until such obligation is both required to be reflected as a liability on the balance sheet of such Person in accordance with GAAP and not paid after becoming due and payable and (iii) deferred or equity compensation arrangements entered into in the ordinary course of business and payable to directors, officers or employees), (e) all Indebtedness (excluding prepaid interest thereon) of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed but, in the case of Indebtedness which is not assumed by such Person, limited to the lesser of (x) the amount of such Indebtedness and (y) the fair market value of such property, (f) all Guarantee Obligations by such Person of Indebtedness of others, (g) all Attributable Indebtedness of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty (excluding the portion thereof that has been fully cash collateralized in a manner permitted by this Agreement), (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, surety bonds and performance bonds, whether or not matured, (j) all Debt Equivalents of such Person, (k) all obligations in respect of the Upfront Fee and the Upfront Fee PIK Amount and (l) the Swap Termination Value under outstanding Swap Contracts at such time to which such Person is a party. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is directly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  Anything herein to the contrary notwithstanding, obligations in respect of any Indebtedness that has been irrevocably defeased (either covenant or legal) or satisfied and discharged pursuant to the terms of the instrument creating or governing such Indebtedness shall not constitute Indebtedness.

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Indemnified Liabilities ” has the meaning specified in Section 10.05 .

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 10.05 .

Information ” has the meaning specified in Section 10.08 .  

Initial Subsidiary Transaction ” means the first occurrence of a Subsidiary Transaction.

Intellectual Property ” has the meaning specified in Section 5.17 .

Intellectual Property Security Agreement ” means, collectively, (a) the Intellectual Property Security Agreement executed by certain Loan Parties in the form of Exhibit H , and (b) each other Intellectual Property Security Agreement Supplement executed and delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

Intellectual Property Security Agreement Supplement ” has the meaning specified in Section 6.11 .

interest ” has the meaning specified in Section 3.02(b) .

Interest Payment Date ” means the last day of each calendar month, subject to Section 1.07 .

Interest Period ” means, (i) initially, the period beginning on (and including) the Closing Date and ending on (and including) the last day of the calendar month in which the Closing Date occurs, and (ii) thereafter, the period beginning on (and including) the first day of each succeeding calendar month and ending on the earlier of (and including) (x) the last day of such calendar month and (y) the Maturity Date.

Investment ” in any Person, means (i) any direct or indirect purchase or other acquisition by a Loan Party of, or of a beneficial interest in, any of the Equity Interests of any other Person (other than a Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Subsidiary of the Company from any Person (other than the Company or any Guarantor Subsidiary), of any Equity Interests of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by the Company or any of its Subsidiaries to any other Person (other than the Company or any Guarantor Subsidiary), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business.  The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto,

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without any adjustments for increases or decreases in value, or write‑ups, write‑downs or write‑offs with respect to such Investment.

Joint Venture ” shall have the meaning specified in the definition of “Permitted Servicing Joint Venture”.

Landlord Consent and Estoppel ” means, with respect to any Leasehold Property, a letter, certificate or other instrument in writing from the lessor under the relevant lease, pursuant to which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold Property by the Loan Party tenant, such Landlord Consent and Estoppel to be in form and substance acceptable to Collateral Agent in its reasonable discretion.

Laws ” means, collectively, all international, foreign, federal, state, provincial 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.

Leasehold Property ” means the leasehold interests listed on Schedule 5.07(b)  and any leasehold interest of any Loan Party as lessee under any lease of real property, other than any such leasehold interest designated from time to time by Collateral Agent in its sole discretion as not being required to be included in the Collateral.

Lender ” means any Lender that is a party to this Agreement from time to time and, in the case of each such Lender, including their respective successors and assigns as permitted hereunder (each of which is referred to herein as a “Lender”).

LIBO Rate ” means, for any Interest Period, the rate per annum equal to the London interbank offered for deposits in Dollars for the applicable Interest Period normally published in the Money Rates section of The Wall Street Journal or another national publication selected by the Administrative Agent, two Business Days prior to the commencement of such Interest Period; provided , that in no event shall the LIBO Rate be less than 1.00%.

Lien ” means any assignment, mortgage, charge, pledge, lien, encumbrance, title retention agreement (including Capital Leases but excluding operating leases) or any other security interest whatsoever, howsoever created or arising, whether fixed or floating, legal or equitable, perfected or not, but specifically excludes any legal, contractual or equitable right of set‑off.

Liquidity ” means, as of any date of calculation, unrestricted cash and Cash Equivalents permitted in accordance with GAAP, plus any undrawn commitments, including, the Commitments, in each case as of such date.

Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of a term loan.

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Loan Documents ” means, collectively, (i) this Agreement, (ii) the Notes, (iii) [reserved], (iv) the Collateral Documents, (v) any Guarantee, (vi) any agency fee letter entered into between the Borrower and the Administrative Agent in connection with the Facility and (vii) all other instruments and documents executed and delivered from time to time by or on behalf of the Borrower or any of its Subsidiaries in connection herewith or therewith.

Loan Parties ” means, collectively, (i) the Borrower and (ii) each Guarantor.

Master Agreement ” has the meaning specified in the definition of “Swap Contract.”

Material Adverse Effect ” means a material adverse effect on (a) the business, assets, financial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole, (b) the rights and remedies of the Administrative Agent or any Lender under any Loan Document or (c) the ability of the Borrower or any Guarantor to perform its obligations under any Loan Document; provided that for purposes of determining compliance with Article V hereof, the incurrence of obligations or liabilities (other than those permitted by   Sections 7.02 and 7.03 ) by the Borrower or any of its Subsidiaries in excess of the Threshold Amount shall be deemed to result in a Material Adverse Effect.

Material Agreements ” means, collectively, (a) the agreements which are listed in Schedule 5.19  and (b) all other agreements to which any Loan Party or any of its properties are bound, from time to time, the absence or termination of any of which would reasonably be expected to result in a Material Adverse Effect.

Material Owned Property ” means (i) the real properties owned by any Loan Party listed on Schedule 5.07(b)  and (ii) any other real property owned by any Loan Party with a fair market value in excess of $1,000,000.

Maturity Date ” means December 16, 2021.

Maximum Legal Rate ” has the meaning specified in Section 3.02(b).

Moody’s ” means Moody’s Investors Service, Inc. and its successors.

Mortgage ” means collectively, the deeds of trust, trust deeds, deeds to secure debt, Landlord Consents and Estoppels and mortgages creating and evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties, substantially in the form of Exhibit K (with such changes as may be reasonably satisfactory to the Collateral Agent and its counsel to account for local law matters) or otherwise in form and substance reasonably satisfactory to the Collateral Agent, executed and delivered pursuant to Section 4.01(a)(iii)  (if applicable), Section 6.11 or Section 6.13 , in each case as amended, restated, supplemented or otherwise modified from time to time.

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Mortgage Policies ” has the meaning specified in paragraph (h)(ii)  of the definition of “Collateral and Guarantee Requirement.”

Mortgaged Properties ” has the meaning specified in paragraph (h)  of the definition of “Collateral and Guarantee Requirement.”

Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3)  of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

Net Cash Proceeds ” means:

(a)      with respect to the Disposition of any asset by any Loan Party or any Casualty Event the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Borrower or any of its Subsidiaries) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is repaid (and is timely repaid) in connection therewith (other than Indebtedness under the Loan Documents), (B) the reasonable out‑of‑pocket expenses actually incurred and paid by the Borrower or any of its Subsidiaries in connection with such Disposition or Casualty Event (including, reasonable attorney’s, accountant’s and other similar professional advisor’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant, and other customary fees) to third parties (other than the Loan Parties or any of their Affiliates), (C) taxes paid or reasonably estimated to be actually payable or that are actually accrued in connection therewith with respect to the current tax year as a result of any gain recognized in connection therewith by such Person or any of the direct or indirect stockholders thereof and attributable to such Disposition or Casualty Event; provided that, if the amount of any estimated taxes pursuant to this subclause (C)  exceeds the amount of taxes actually required to be paid in cash, the aggregate amount of such excess shall constitute Net Cash Proceeds and (D) any reasonable reserve actually maintained in respect of (x) the sale price of such asset or assets established in accordance with GAAP, and (y) any liabilities associated with such asset or assets and retained by the Borrower or any of its Subsidiaries after such sale or other Disposition thereof, including pension and other post‑employment benefit liabilities and liabilities related against any indemnification obligations associated with such transaction and it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents (1) received upon the Disposition of any non‑cash consideration received by such Person in any such Disposition, and (2) received upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or, if such liabilities have not been satisfied in cash and such reserve not reversed within two years after such Disposition or Casualty Event, the amount of such reserve; and

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(b)      with respect to the incurrence or issuance of any Indebtedness by the Borrower or any of its Subsidiaries not permitted under Section 7.03 , the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the investment banking fees, underwriting discounts, commissions, costs and other out‑of‑pocket expenses and other customary expenses (including reasonable attorney’s, accountant’s and other similar professional advisor’s fees), incurred by such Loan Party in connection with such incurrence or issuance to third parties (other than the Loan Parties or any of their Affiliates).

Net Working Capital ” means, at any time, Current Assets at such time minus Current Liabilities at such time.

Note ” means a promissory note of the Borrower payable to a Lender or its assigns, substantially in the form of Exhibit B hereto, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender.

NPL ” means the National Priorities List under CERCLA.

Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party or other Subsidiary arising under any Loan Document or otherwise with respect to any Loan entered into with a Lender, 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 other Subsidiary 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 Loan Parties under the Loan Documents (and of any of their Subsidiaries to the extent they have obligations under the Loan Documents) include (1) the obligation (including Guarantee Obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees (including, without limitation, the Upfront Fee and any accrued and uncapitalized Upfront Fee PIK Amounts), premiums (including, without limitation, any Prepayment Premium), Attorney Costs, indemnities and other amounts payable by any Loan Party or any other Subsidiary under any Loan Document and (2) the obligation of any Loan Party or any other Subsidiary to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party or such Subsidiary.

Organization Documents ” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (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, declaration, 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.

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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.

Outstanding Amount ”  means, on any date, the outstanding principal amount of Loans, after giving effect to any borrowings, accretion of debt, and/or prepayments or repayments of Loans occurring on such date.

Participant ” has the meaning specified in Section 10.07(d) .

Participant Register ” has the meaning specified in Section 10.07(d) .

PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107‑56 (signed into law October 26, 2001)), as the same may be amended, supplemented, modified, replaced or otherwise in effect from time to time.

PBGC ” means the Pension Benefit Guaranty Corporation (or any successor thereof).

Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2)  of ERISA) other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time in the past five years.

Permitted Indebtedness ” has the meaning specified in Section 7.03 .

Permitted Liens ” means Liens permitted to be incurred pursuant to Section 7.01 .

Permitted Servicing Joint Venture ” means a joint venture, limited liability company or other business entity between a Loan Party and one or more third parties (each, a “ Joint Venture ”) that meets each and all of the following criteria: (a) the formation and governing documents for the Joint Venture provide that the liability of the Loan Party that is a party thereto (as among all of the parties to the Joint Venture) is expressly limited to no more than such Loan Party’s pro rata portion of the scope of services and/or other liabilities arising

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from the Joint Venture, (b) the terms of which formation and governing documents provide for indemnification of such Loan Party against any damages (other than special, indirect or consequential) caused by any other member of the Joint Venture, (c) the scope of the services to be provided by the Joint Venture shall be consistent with the scope of services currently provided by the Loan Parties in the ordinary course of their business (taking into account any services that may be currently subcontracted by the Loan Parties in the ordinary course of their business), (d) the Joint Venture shall be formed solely for the purpose of bidding upon and entering into one or more contracts with one or more customers upon terms that provide that the aggregate contract value as to such Loan Party under each such contract shall be calculated on a “time and materials” basis and (e) such Loan Party, the Joint Venture or the customer or customers of the Joint Venture shall obtain customary liability and commercial insurance, in amounts and from a reputable insurer as may be necessary for prudent execution of the work by the Joint Venture.

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

PIK Increase Period ” has the meaning specified in Section 2.03(b) .

PIK Interest ” has the meaning specified in Section 2.04(a) .

Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

Prepayment Notice ” means a notice of prepayment in respect of any voluntary or mandatory prepayment in substantially the form of Exhibit A .

Prepayment Premium ” has the meaning specified in Section 2.02(a) .

Pro Rata Share ” means, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the Facility at such time and the denominator of which is the amount of the Aggregate Commitments under the Facility at such time; provided that if any Commitment has been terminated, then the Pro Rata Share of each Lender shall be determined based on the outstanding principal amount of the Loans held by such Lender divided by the aggregate principal amount of all outstanding Loans.

Projections ” has the meaning specified in Section 4.01(e) .

Qualified Equity Interests ” means any Equity Interests that are not Disqualified Equity Interests.

Recipient ” means (a) the Administrative Agent or (b) any Lender, as applicable.

Redemption Date ” has the meaning specified in Section 2.02(a) .

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Register ” has the meaning specified in Section 10.07(c) .

Registered ” means, with respect to Intellectual Property, issued by, registered with, renewed by or the subject of a pending application before any Governmental Authority or Internet domain name registrar.

Release ” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, leeching or migration of any Hazardous Material in or into the environment (including the abandonment or disposal of any barrels, tanks, containers or receptacles containing any Hazardous Material), or out of any vessel or facility, including the movement of any Hazardous Material through the air, soil, subsoil, surface, water, ground water, rock formation or otherwise.

Reportable Event ” means with respect to any Plan any of the events set forth in Section 4043(c)  of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.

Required Lenders ” means, as of any date of determination, one or more Lenders having more than 50% of the Total Facility Exposure.

Responsible Officer ” means the chief executive officer, president, chief financial officer, chief accounting officer, treasurer, corporate controller or, except for purposes of Sections 6.03 or 6.04 , any other similar officer or a Person performing similar functions of a Loan Party (and, as to any document delivered on the Closing Date, to the extent acceptable to the Administrative Agent in its sole discretion or required by the terms of this Agreement, any secretary or 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, 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 (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, retraction, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof) and including any thereof acquired through the exercise of warrants or rights of conversion, exchange or purchase and (c) any payment of principal, premium, if any, or interest (whether in cash, securities or other property) of any intercompany note evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(i) .

S&P ” means Standard & Poor’s Ratings Services LLC, a division of The McGraw‑Hill Companies, Inc., and its successors.

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Sale Leaseback ” means any transaction or series of related transactions pursuant to which the Borrower or any of its Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

Secured Obligations ” has the meaning specified in the Security Agreement.

Secured Parties ” means, collectively, the Administrative Agent, the Collateral Agent and the Lenders.

Securities Act ” means the Securities Act of 1933, as amended from time to time.

Securities Pledge Agreement ” means, collectively, (a) the Securities Pledge Agreement executed by certain Loan Parties substantially in the form of Exhibit G and (b) each Securities Pledge Agreement Supplement executed and delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

Securities Pledge Agreement Supplement ” has the meaning specified in Section 6.11 .

Security Agreement ” means, collectively, (a) the Security Agreement executed by certain Loan Parties substantially in the form of Exhibit F and (b) each Security Agreement Supplement executed and delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

Security Agreement Supplement ” has the meaning specified in Section 6.11 .

Servicing Joint Venture Proposal Package” means, with respect to any proposed Permitted Servicing Joint Venture, the following items, each in form reasonably satisfactory to the Administrative Agent:

(a)      a copy of the proposed formation and governing documents for the proposed Permitted Servicing Joint Venture, together with a description in reasonable detail of the proposed Permitted Servicing Joint Venture and the nature of the project or projects for which the proposed Permitted Servicing Joint Venture would be formed;

(b)      a certificate of a Responsible Officer of the Borrower certifying that:

(i)       such proposed Permitted Servicing Joint Venture satisfies the criteria set forth in the definition of “Permitted Servicing Joint Venture” or, if discretionary approval is required with respect to any such criteria, a request for such discretionary approval;

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(ii)      the entry into such proposed Permitted Servicing Joint Venture would not cause or result in a Default or Event of Default; and

(iii)     the Loan Parties are in compliance with the Financial Covenants (both immediately before and after giving effect to the entry into the proposed Permitted Servicing Joint Venture).

Shareholders’ Equity ” means, as of any date of determination, consolidated shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance with GAAP.

Solvent ” and “ Solvency ” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property (for the avoidance of doubt, calculated to include goodwill and other intangibles) of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) 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, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the 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.

SPC ” has the meaning specified in Section 10.07(g ).

Specified Foreign Subsidiary ” means each of GPEG Mexico Distributing, SA de CV, Braden Manufacturing SA de CV and Global Power Equipment Group (Hong Kong) Limited.

Specified Subsidiary Transaction ” means the transaction set forth on Schedule 7.05 .

Specified Transaction ” means any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, Capital Expenditure or other transaction that by the terms of this Agreement requires such test to be calculated on a “pro forma basis” or after giving “pro forma effect”.

Subsidiary ” of a Person means:

(a)      a corporation of which another person alone or in conjunction with its other Subsidiaries owns an aggregate number of voting Equity Interests sufficient to enable the election of a majority of the directors regardless of the manner in which other voting Equity Interests are voted;

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(b)      a corporation of which another person alone or in conjunction with its other Subsidiaries has, through the operation of any agreement or otherwise, the ability to elect or cause the election of a majority of the directors or otherwise exercise control over the management and policies of such corporation;

(c)      any partnership of which at least a majority of the outstanding income or capital interests and/or at least a majority of the voting interests of such partnership or, in the case of a limited partnership, any general partner thereof, are owned by a person alone or in conjunction with its other Subsidiaries; and

(d)      any trust or other person of which at least a majority of the outstanding beneficial or ownership interests (however designated) are owned by a person alone or in conjunction with its other Subsidiaries.

Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.  In no event shall the term “Subsidiary” include any Permitted Servicing Joint Venture.

Subsidiary Transaction ” means (i) a Specified Subsidiary Transaction or (ii) any other Disposition constituting the sale of all or substantially all of the assets or Equity Interests of a Subsidiary, the terms and conditions of which have been consented to in advance in writing by the Administrative Agent.

Surviving Indebtedness ” means the ABN AMRO Facility and any other Indebtedness of the Company or any of its Subsidiaries outstanding immediately before and after giving effect to the Transaction as specified on Schedule 7.03(b) .

Swap Contract ” means (a) any and all interest 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 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

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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 by the applicable counterparty in accordance with the terms thereof and in accordance with customary methods for calculating mark‑to‑market values under similar arrangements by such counterparty.

Synthetic Debt ” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.

Synthetic Lease Obligation ” means the monetary obligation of a Person under (i) a so‑called synthetic, off‑balance sheet or tax retention lease, or (ii) an agreement for the use or possession of property (including any Sale Leaseback), in each case, creating obligations that do not appear on the balance sheet of such Person but which could be characterized as the indebtedness of such Person (without regard to accounting treatment).

Taxes ” means any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, stamp taxes, withholdings or other charges imposed by any Governmental Authority (including additions to tax, penalties and interest with respect thereto).

Termination Date ” has the meaning specified in Section 9.11(a) .

Test Period ” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower ending on or prior to such date for which the consolidated financial statements of the Borrower and its Subsidiaries have been (or were required to have been) delivered pursuant to Section 6.01(a ) or (b ).

Threshold Amount ” means $500,000.

Total Debt ” means, as of any date, consolidated Indebtedness of the Borrower and its Subsidiaries outstanding as of such date of the type described in clauses (a), (b), (d), (e), (g), (h) (excluding undrawn amounts under outstanding letters of credit or letters of guaranty) and (i) (but only if drawn or called) of the definition thereof.

Total Facility Exposure ” means, as of any date of determination, the sum of (a) Total Outstandings as of such date and (b) the then unfunded Commitments (if any).

Total Leverage Ratio ” means, with respect to any Test Period, the ratio of (a) Total Debt as of the last day of such Test Period to (b) Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries for such Test Period.

Total Outstandings ” means, as of any date of determination, the then aggregate Outstanding Amount of all Loans.

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Transaction ” means, collectively, (a) extension of Commitments under this Agreement and the funding of the Loans on the Closing Date, (b) the consummation of any other transactions in connection with the foregoing and (c) the payment of the fees and expenses, including prepayment premiums, incurred in connection with any of the foregoing.

Unaudited Financial Statements ” means the unaudited financial statements described in Section 4.01(e) .

Uniform Commercial Code ” or “ UCC ” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any security interest in any item or items of Collateral.

United States ” and “ U.S. ” mean the United States of America.

Upfront Fee ” has the meaning specified in Section 2.05(b) .

Upfront Fee Payment Date ” has the meaning specified in Section 2.05(b) .

Upfront Fee PIK Amount ” has the meaning specified in Section 2.05(b) .

U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(g)(ii)(B)(3) .

Wholly‑owned ” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly‑owned Subsidiaries of such Person.

Withdrawal Liability ” means the liability of a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Withholding Agent ” means any Loan Party and the Administrative Agent.

Section 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 meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b)      (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

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(ii)      Article, Section, paragraph, clause, subclause, Exhibit and Schedule references are to the Loan Document in which such reference appears.

(iii)      The term “including” is by way of example and not limitation.

(iv)      The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

(c)       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.”

(d)       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.

(e)       Whenever the context may require, any pronoun shall include the corresponding masculine, feminine or neuter forms.

Section 1.03       Accounting Terms .  (a) 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 in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein; provided ,   however , that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then the Administrative Agent and the Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and the Borrower after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred and (ii) the Borrower shall provide to the Administrative Agent and the Lenders a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of any applicable ratios, baskets and other requirements hereunder before and after giving effect to such Accounting Change.

(b)      Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Financial Covenants shall be calculated with respect to such period and such Specified Transaction on a pro forma basis.  In addition, the parties hereto agree that following the occurrence of a Specified Transaction, the Administrative Agent and the Borrower shall use commercially reasonable efforts to amend and revise the

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Financial Covenants in order to reflect the impact of any Subsidiary Transaction on the operations of the Borrower and its Subsidiaries.

(c)      Where reference is made to a Person “and its Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any subsidiaries other than Subsidiaries.

Section 1.04       Rounding .  Any financial ratios required to be satisfied in order for a specific action to be permitted under 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).

Section 1.05       References to Agreements, Laws, Etc .  Unless otherwise expressly provided herein, (a) references to documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, amendments and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendments and restatements, extensions, supplements and other modifications are permitted by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

Section 1.06       Times of Day .  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 1.07       Timing of Payment or Performance .  When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.

Section 1.08       Currency Equivalents Generally .  (a) Any amount specified in this Agreement (other than in Article II ,   Article IX and Article X or as set forth in paragraph (b) of this Section) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined in a manner consistent with the definition of Exchange Rate.

(b)      For purposes of determining compliance under Sections 7.02 ,   7.05 and 7.06 , any amount in a currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating net income in the Borrower’s annual financial statements delivered pursuant to Section 6.01(a) ;   provided ,   however , that the foregoing shall not be deemed to apply to the determination of any amount of Indebtedness.

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ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

Section 2.01       The Loans .  (a) Subject to the terms and conditions set forth herein, on the Closing Date, each Lender agrees to make term loans (“ Loans ”) in an aggregate principal amount not to exceed at any time outstanding the amount set forth opposite such Lender’s name in Schedule 2.01 (such amount being referred to herein as such Lender’s “ Commitment ”).  The Commitment of each Lender shall be automatically and permanently reduced by the principal amount of each Loan made by such Lender on the Closing Date.

(b)      Amounts borrowed under this Section 2.01 and repaid or prepaid may not be re-borrowed.

(c)      All the outstanding principal amount of the Loans, together with all accrued and unpaid interest thereon, and any fees and other amounts payable hereunder, shall be due and payable on the earlier of (i) the Maturity Date and (ii) the date of the acceleration of the Loans pursuant to Section 9.02 .  

Section 2.02       Prepayments .  (a)  Optional Prepayments .  (i) The Borrower may, upon delivery of a Prepayment Notice to the Administrative Agent, at any time or from time to time voluntarily prepay, in whole or in part (in a minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount for each partial prepayment) the outstanding principal amount of the Loans on any Business Day (the “ Redemption Date ”) for an amount equal to the Loans being prepaid on such Redemption Date, plus the Prepayment Premium, plus any accrued but unpaid interest on the aggregate principal amount of the Loans being prepaid.  The applicable “ Prepayment Premium ” shall be an amount calculated as follows:

(ii)       If the Redemption Date occurs:

(A)      on or prior to the first anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to three percent (3%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date;

(B)      after the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to two percent (2%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date;

(C)      after the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to one percent (1%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date; and

(D)      after the third anniversary of the Closing Date and at any time thereafter, the Prepayment Premium shall be zero.

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Notwithstanding any of the foregoing to the contrary, with respect to any prepayment made in connection with a Disposition permitted pursuant to Section 7.05(j) , if the Redemption Date occurs on or prior to the third anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to one percent (1%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date.

(iii)      Any Prepayment Notice must be received by the Administrative Agent not later than 12:00 noon (New York, New York time) three (3) Business Days prior to any Redemption Date and shall specify the date and amount of such prepayment.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share 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.  Each prepayment of Loans pursuant to this Section 2.02(a) shall be paid to the Lenders in accordance with their respective Pro Rata Shares as set forth in Section 2.02(b)(vii) below. 

(iv)      No partial prepayment shall be made under this Section 2.02(a) in connection with any event described in Section 2.02(b) .

(b)       Mandatory Prepayments .  (i) As promptly as reasonably practicable, but in any event within five (5) Business Days after the date that is ninety (90) days following the end of each Fiscal Year, the Borrower shall cause to be prepaid an aggregate principal amount of Loans equal to (A) 100% (such percentage as it may be reduced as described below, the “ ECF Percentage ”) of Excess Cash Flow, if any, for the Fiscal Year covered by the financial statements required to be delivered pursuant to Section 6.02(a)   minus (B) the sum of all voluntary prepayments of Loans (except to the extent that such prepayments are financed, directly or indirectly, with long‑term Indebtedness or non‑ordinary course Dispositions of property); provided that the ECF Percentage (before giving effect to the foregoing reductions, if any) shall be reduced to 75% if the Total Leverage Ratio is less than 2.50:1.00 as of the end of the Fiscal Year covered by such financial statements and provided   further that so long as no Default or Event of Default has occurred and is continuing, no such prepayments shall be required unless Excess Cash Flow for such Fiscal Year equals or exceeds $1,000,000, at which point the Borrower shall cause to be prepaid an aggregate principal amount of Loans equal to the applicable percentage of Excess Cash Flow as set forth herein.

(ii)      If the Borrower or any of its Subsidiaries Disposes of any property (excluding Dispositions permitted pursuant to Section 7.05 (other than pursuant to Section 7.05(h) ,   (j) and (k) (other than with respect to an Initial Subsidiary Transaction)), the Borrower shall cause to be prepaid, in accordance with Section 2.02(b)(vii) , an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds realized or received in connection with such Disposition, plus the Prepayment Premium on the principal amount of the Loans being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds; provided (i) so long as no Default or Event of

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Default shall have occurred and be continuing and (ii) to the extent that aggregate Net Cash Proceeds from the Closing Date through the applicable date of determination do not exceed $1,500,000, the Borrower shall have the option, directly or through one or more of its Subsidiaries, to invest such Net Cash Proceeds within one hundred eighty (180) days of receipt thereof in productive assets of the general type used in the business of the Borrower and its Domestic Subsidiaries.  If the Borrower or any of its Subsidiaries Disposes of any property in connection with an Initial Subsidiary Transaction pursuant to Section 7.05(k) , the Borrower shall cause to be prepaid, an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds realized or received in connection with such Initial Subsidiary Transaction, plus the Upfront Fee, together with the accrued and uncapitalized Upfront Fee PIK Amount, as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.  For the avoidance of doubt, any prepayment made pursuant to this Section 2.02(b)(ii) as a result of a Disposition shall not be deemed to be a consent to any such Disposition or a cure or waiver of any Event of Default which occurs in connection with such Disposition, it being understood that such Event of Default may only be waived with the express consent of Required Lenders.

(iii)     If any Casualty Event occurs, the Borrower shall cause to be prepaid an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds realized or received in connection with such Casualty Event, as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds; provided , (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the extent that aggregate Net Cash Proceeds from the Closing Date through the applicable date of determination do not exceed $500,000, the Borrower shall have the option, directly or through one or more of its Subsidiaries, to invest such Net Cash Proceeds within one hundred eighty (180) days of receipt thereof in productive assets of the general type used in the business of the Borrower and its Domestic Subsidiaries, which investment may include the repair, restoration or replacement of the applicable assets thereof.

(iv)     If the Borrower or any of its Subsidiaries incurs or issues any Indebtedness (including Debt Equivalents) not expressly permitted to be incurred or issued pursuant to Section 7.03 , the Borrower shall cause to be prepaid, in accordance with Section 2.02(b)(vii) , an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds received therefrom, plus the Prepayment Premium on the principal amount of the Loans being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation) as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.

(v)      If the Borrower or any of its Subsidiaries receives any tax refunds and/or any extraordinary receipts in excess of $500,000 in the aggregate in any Fiscal Year, the Borrower shall cause to be prepaid an aggregate principal amount of Loans in the amount of such tax refunds and/or extraordinary receipts as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt thereof.

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(vi)     If the Borrower or any of its Subsidiaries receives Net Cash Proceeds from a capital contribution or issuance of any Equity Interests of the Borrower or any of its Subsidiaries (other than Equity Interests issued (i) pursuant to any employee stock or stock option compensation plan, (ii) by any Subsidiary to the Borrower or any other Subsidiary to the extent permitted by Section 7.02 , or (iii) for purposes approved in writing by the Administrative Agent), the Borrower shall cause to be prepaid, in accordance with Section 2.02(b)(vii) , an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds received therefrom, plus the Prepayment Premium on the principal amount of the Loans being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation) as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds. 

(vii)    So long as no Default or Event of Default has occurred and is continuing, (x) each voluntary and mandatory prepayment of Loans pursuant to Section 2.02(a) and this Section 2.02(b) (excluding any Disposition made pursuant to Section 7.05(k) in connection with an Initial Subsidiary Transaction) shall be applied as follows:

First , to the payment of all outstanding fees and all expenses specified in Section 8.03;

Second , to the payment of that portion of the Obligations constituting accrued, unpaid interest (including, but not limited to, accrued but uncapitalized PIK Interest) and the Prepayment Premium (if any); and

Third , shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the Loan;

(y)  the Net Cash Proceeds from a mandatory prepayment of Loans pursuant to this Section 2.02(b) received in connection with an Initial Subsidiary Transaction shall be applied as follows:

First , to the payment of all outstanding fees and all expenses specified in Section 8.03;

Second , to the payment of that portion of the Obligations constituting (A) the Upfront Fee, together with all accrued and uncapitalized Upfront Fee PIK Amounts and (B) accrued, unpaid interest (including, but not limited to, accrued but uncapitalized PIK Interest); and

Third , shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the Loan.

(viii)      The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to clauses (i) ,   (ii) ,   (iii) ,   (iv) ,   (v) and (vi) of this Section 2.02(b)  at least three (3) Business Days prior to the date of such

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prepayment pursuant to a Prepayment Notice.  Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment.  The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s Prepayment Notice and of such Lender’s Pro Rata Share of the prepayment.

(c)       Interest .  All prepayments under this Section 2.02 shall be accompanied by all accrued interest thereon.

Section 2.03       Repayment of Loans .  (a) The Borrower shall repay to the Administrative Agent, for the ratable account of the Lenders (i) commencing on June 30, 2018 through March 31, 2019, in consecutive quarterly installments to be paid on the last day of each fiscal quarter of the Borrower, an amount equal to 1.25% of the original aggregate principal amount of the Loans, (ii) commencing on June 30, 2019 and thereafter in consecutive quarterly installments to be paid on the last day of each fiscal quarter of the Borrower, equal to 1.875% of the original aggregate principal amount of the Loans and (iii) on the Maturity Date, the remaining Obligations (including, without limitation, all accrued and unpaid principal and interest on the principal amounts of the Loans (including any accrued but uncapitalized PIK Interest)).  For the avoidance of doubt, scheduled repayments pursuant to this Section 2.03 shall be reduced as a result of the application of prepayments in accordance with Section 2.02 solely to the extent of any such amounts applied to the prepayment of the Loans.

(b)      The Borrower shall repay to the Administrative Agent, for the ratable account of the Lenders, (i) a principal amount equal to $25,000,000 on January 1, 2018 plus (ii) the Upfront Fee, together with all accrued and uncapitalized Upfront Fee PIK Amounts (the “ 2018 Amortization Payment ”); provided ,   however , that the Borrower may elect to defer the 2018 Amortization Payment to a later date, including the Maturity Date; provided   further   however, that the Borrower shall not be required to pay the 2018 Amortization Payment in the event that (i) an Initial Subsidiary Transaction occurs on or prior to January 1, 2018 and (ii) such Initial Subsidiary Transaction is in an aggregate amount greater than $25,000,000.  In the event that the Borrower elects to defer the 2018 Amortization Payment, the PIK Interest payable pursuant to Section 2.04 shall increase by an additional 5% per annum during the period commencing on January 1, 2018 through the Interest Payment Date occurring immediately prior to the date the 2018 Amortization Payment is paid (such period, the “ PIK Increase Period ”).

Section 2.04       Interest .  (a) Subject to the provisions of Section 2.04(b) , each Loan shall bear interest on the outstanding principal amount thereof for each Interest Period in an amount equal to the LIBO Rate plus the sum of: (i) 9.00% per annum payable in cash (“ Cash Interest ”) and (ii) (x) 10.00% per annum and (y) during the PIK Increase Period, 15% per annum, in each case of clauses (ii)(x) and (ii)(y) in an amount payable-in-kind (“ PIK Interest ”).

(b)      Commencing upon the occurrence and during the continuance of any Event of Default, the Borrower shall pay interest on (i) the principal amount of the Loans and (ii) to the extent then due and payable all other outstanding Obligations hereunder, in each case under clauses (i) and (ii) at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.  Accrued and unpaid interest on past due

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amounts (including interest on past due interest to the fullest extent permitted by applicable Laws) 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.  All Cash Interest shall be payable in cash to the Administrative Agent to be allocated pursuant to Section 2. 08.  All PIK Interest shall accrue and be added and capitalized to the outstanding principal balance of the Loans on each Interest Payment Date, and the principal amount of the Loans shall be increased by such PIK Interest amount for all purposes under the Loan Documents.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after any judgment.

Section 2.05       Fees .  (a) The Borrower shall pay to the Agents a non-refundable annual administration fee equal to $25,000, in the aggregate, for agency services provided under this Agreement.  This fee shall be in all respects fully earned, due and payable on the Closing Date directly from the proceeds of the Loan and thereafter, shall be payable by the Borrower in advance on each anniversary of the Closing Date during the term of this Agreement.

(b)      The Borrower agrees to pay to the Administrative Agent for distribution to the Lenders in accordance with each Lenders’ Pro Rata Share, an upfront fee equal to 7% of the Aggregate Commitments (the “ Upfront Fee ”).  The Upfront Fee is earned on the Closing Date.  Until such time as the Upfront Fee Payment Date has occurred, the Upfront Fee shall bear interest in an amount equal to the LIBO Rate plus 19% per annum (the “ Upfront Fee PIK Amount ”).  The Upfront Fee PIK Amount shall accrue and be added and capitalized to the outstanding amount of the Upfront Fee on each Interest Payment Date, and the balance of the Upfront Fee shall be increased by the Upfront Fee PIK Amount for all purposes under the Loan Documents.  The Upfront Fee, together with all accrued and uncapitalized Upfront Fee PIK Amounts shall be payable upon the earliest of (i) the date that the Borrower is required to repay the Obligations with the Net Cash Proceeds of an Initial Subsidiary Transaction pursuant to Section 2.02(b)(ii) , (ii) the date that the 2018 Amortization Payment is paid and (iii) the Maturity Date (the “ Upfront Fee Payment Date ”).  

Section 2.06       Computation of Interest and Fees .  All computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed.  Interest shall accrue on each Loan for the day on which such Loan is made, and shall not accrue on such Loan, or any portion thereof, for the day on which such Loan or such portion is paid; provided that any such Loan that is repaid on the same day on which it is made shall 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.

Section 2.07       Evidence of Indebtedness .  (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender.  The accounts or records maintained by each Lender shall be prima   facie evidence 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

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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 Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

(b)      Entries made in good faith by each Lender in its account or accounts pursuant to Section 2.07(a) , shall be prima   facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of such Lender to make an entry, or any finding that an entry is incorrect, in such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.

Section 2.08       Payments Generally .  (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, 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 applicable Administrative Agent’s Office and in immediately available funds not later than 3:00 p.m. (New York City time) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Applicable Lending Office.  All payments received by the Administrative Agent after 3:00 p.m. (New York City time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

(b)      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;  provided that if such extension would cause payment of interest on or principal of Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

(c)      Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:

(i)      if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that

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was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate; and

(ii)     if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “ Compensation Period ”) at a rate per annum equal to the Federal Funds Rate.  When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing.  If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, then in the event the Administrative Agent has funded a Loan in advance of receipt of funds from a defaulting Lender or otherwise made a payment to the Borrower on behalf of such defaulting Lender, the Administrative Agent may make a demand therefor upon the Borrower and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing.  Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by a Lender hereunder.

A notice by the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.08(c) shall be conclusive, absent manifest error.

(d)      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 Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(e)      The obligations of the Lenders hereunder to make Loans are several and not joint.  The failure of any Lender to make any Loan shall not relieve any other Lender of its corresponding obligation to do so on such date, and neither the Administrative Agent nor any Lender shall be responsible for the failure of any other Lender to make its Loan.

(f)      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.

(g)      Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and

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payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03 .  If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the Outstanding Amount of all Loans outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.

Section 2.09       Sharing of Payments .  If, other than as expressly provided elsewhere herein (including, without limitation, in Section 10.07 ), any Lender shall obtain on account of the Loans made by it any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon.  The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09 ) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.  Each Lender that purchases a participation pursuant to this Section 2.09 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

ARTICLE III

TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

Section 3.01       Taxes

(a)        Defined Terms .  For purposes of this Section 3.01 , the term “applicable law” includes FATCA.

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(b)       Payments Free of Taxes .  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 law.  If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c)       Payment of Other Taxes by the Loan Parties .  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.

(d)       Indemnification by the Loan Parties .  The Loan Parties shall jointly and severally indemnify each Recipient, 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) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any 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 (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e)       Indemnification by the Lenders .  Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (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), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.07 (d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent 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 hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

(f)       Evidence of Payments .  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01 , such Loan Party

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shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(g)       Status of Lenders .  (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(g)(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.

(ii)       Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower:

(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 copies 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:

(1)       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 copies of IRS Form W-8BEN (or W-8BEN-E, as applicable) 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 (or W-8BEN-E, as applicable) establishing an exemption from, or reduction

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of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)       executed copies of IRS Form W-8ECI;

(3)       in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed copies of IRS Form W-8BEN (or W-8BEN-E, as applicable); or

(4)       to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or W-8BEN-E, as applicable), a U.S. Tax Compliance Certificate, 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 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 copies 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 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 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

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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.

Each Lender agrees that if any form or certification it previously delivered 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.

(h)       Treatment of Certain Refunds .  If any party determines, in its reasonable discretion, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i)        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, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 3.02       Illegality .  (a) If any Lender determines that any Law has made it unlawful, or that any Governmental Authority that is a court, statutory board or commission has asserted that it is unlawful, for any Lender or its Applicable Lending Office to make, maintain or fund the Loans (and, in the opinion of such Lender, the designation of a different lending office would either not avoid such unlawfulness or would be disadvantageous to such Lender), then such Lender shall promptly notify Borrower thereof following which (a) the Lender’s Commitment shall be suspended until such time as such Lender may again make and maintain the Loans hereunder and (b) if such Law shall so mandate, the Loans held by such Lender shall be prepaid by Borrower on or before such date as shall be mandated by such Law in an amount equal to 100% of the aggregate principal amount of Loans held by such Lender, plus any accrued

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but unpaid interest on the aggregate principal amount of the Loans being prepaid, plus the Prepayment Premium (if any) on the principal amount of such Loans being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation).

(b)       Maximum Legal Rate .  No agreements, conditions, provisions or stipulations contained in this Agreement or any other instrument, document or agreement between the Loan Party and any Agent or any Lender or default of the Loan Parties, or the exercise by any Agent or any Lender of the right to accelerate the payment of the maturity of principal and interest, or to exercise any option whatsoever contained in this Agreement or any other Loan Document, or the arising of any contingency whatsoever, shall entitle any Lender to contract for, charge, or receive, in any event, consideration for the use, forbearance or detention of money (“ interest ”) at a rate exceeding the maximum rate of interest permitted by applicable state or federal law in effect from time to time (hereinafter “ Maximum Legal Rate ”).  In no event shall the Loan Parties be obligated to pay interest at any rate exceeding such Maximum Legal Rate and all agreements, conditions or stipulations, if any, which may in any event or contingency whatsoever operate to bind, obligate or compel the Loan Parties to pay a rate of interest exceeding the Maximum Legal Rate, shall be without binding force or effect, at law or in equity, to the extent only of the excess of interest determined at a rate over such Maximum Legal Rate.  In the event any interest is contracted for, charged or received at any rate in excess of the Maximum Legal Rate (“ Excess ”), each Loan Party acknowledges and stipulates that any such contract, charge, or receipt shall be the result of an accident and bona fide error, and that any Excess received by any Lender shall be applied, first , to reduce the principal then unpaid hereunder; second , to reduce the other Obligations; and third , returned to the Loan Parties, it being the intention of the parties hereto not to enter at any time into a usurious or otherwise illegal relationship.  Each Loan Party recognizes that, with fluctuations in the LIBO Rate and the Maximum Legal Rate, such a result could inadvertently occur.  By the execution of this Agreement, the Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Loan Party of such Excess, and (ii) such Loan Party shall not seek or pursue any other remedy, legal or equitable, against any Agent or any Lender, based in whole or in part upon the contracting for, charging or receiving of any interest in excess of the maximum authorized or the receiving of any interest in excess of the maximum authorized by applicable law.  To the extent applicable, for the purpose of determining whether or not any Excess has been contracted for, charged or received by any Agent or any Lender, all interest at any time contracted for, charged or received by the Administrative Agent and any Lender in connection with this Agreement shall be amortized, prorated, allocated and spread in equal parts during the full stated term of this Agreement and otherwise as provided by applicable Law.  If, as a result of any circumstances whatsoever, fulfillment of any provision hereof or of any related agreement, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by applicable usury law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity.

Section 3.03       Increased Cost and Reduced Return; Capital Adequacy .  (a) If any Lender reasonably determines that as a result of the introduction of or any Change in Law or a change in the interpretation of any Law with which such Lender or any lending office of such Lender, if any, is required to comply, in each case, after the date hereof, there shall be any

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increase in the cost to such Lender agreeing to make, making or maintaining any Loan, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.03(a)  any such increased costs or reduction in amount resulting from (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or (iii) Other Connection Taxes), then from time to time within fifteen (15) days after demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.04 ), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction. 

(b)      If any Lender reasonably determines that the introduction of any Law regarding (i) capital adequacy or any change therein or in the interpretation thereof or (ii) liquidity requirement, or in each case any change therein or in the interpretation thereof with which such Lender (or its Applicable Lending Office) is required to comply, in each case after the date hereof, would have the effect of reducing the rate of return on the capital of such Lender, or any corporation controlling such Lender, to a level below that which such Lender, or the corporation controlling such Lender, could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of any corporation controlling such Lender with respect to capital adequacy) as a consequence of such Lender’s obligations hereunder, then from time to time upon demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.04 ), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such demand.

(c)      Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.03 shall not constitute a waiver of such Lender’s right to demand such compensation.

(d)      If any Lender requests compensation under this Section 3.03 , then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another Applicable Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Applicable Lending Office(s) to suffer no material economic, legal or regulatory disadvantage; and provided   further that nothing in this Section 3.03(d)  shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.03(a) ,   (b) or (c) .

Section 3.04       Matters Applicable to All Requests for Compensation .  The Administrative Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder, which shall be conclusive absent manifest error.  In determining such amount, the Administrative Agent or such Lender, as the case may be, may use any reasonable averaging and attribution methods.  With respect to any Lender’s claim for compensation under Section 3.01 ,   Section 3.02 or Section 3.03 , the Borrower shall not be required to compensate such Lender for any amount incurred more than two hundred and seventy (270) days prior to the date that such

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Lender notifies the Borrower of the event that gives rise to such claim; provided that if the circumstance giving rise to such claim is retroactive, then such 270‑day period referred to above shall be extended to include the period of retroactive effect thereof.

Section 3.05       Surviva l.  All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.

ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

Section 4.01       Conditions to the Closing Date .  The obligation of each Lender to make the Loans hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:

(a)      The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:

(i)      executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;

(ii)     an original Note executed by the Borrower in favor of each Lender that has requested in writing a Note;

(iii)    such certificates (including a certificate substantially in the form of Exhibit I ) of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably 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 or is to be a party on the Closing Date;

(iv)    an opinion of (i) Thompson Hine LLP, counsel to the Loan Parties and (ii) Van Valer Law Firm, LLP, Indiana counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent;

(v)     a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction and the other transactions contemplated hereby and thereby, from the chief financial officer of the Borrower in substantially the form of Exhibit J hereto;

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(vi)    copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Liens permitted under Section 7.01 ) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and

(vii)   (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect, and, where available, bring down certificates, for each Loan Party.

(b)      As of the Closing Date, after giving effect to the Transaction, the Borrower and each of its Subsidiaries will have no indebtedness other than the Facility, the Existing Letters of Credit, and any Surviving Indebtedness specified on Schedule 7.03(b) .  All amounts due or outstanding in respect of any Indebtedness other than the Facility, the Existing Letters of Credit and any Surviving Indebtedness specified on Schedule 7.03(b) shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent. 

(c)      In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received: 

(i)      evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);

(ii)     a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral

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Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);

(iii)    opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and

(iv)    evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party, and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(i) ) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.

(d)      [Reserved].

(e)      The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income, Shareholders’ Equity and cash flows of the Company and unaudited consolidating balance sheets and related statements of income for the Fiscal Year of the Company ended December 31, 2016, each in draft form, (ii) unaudited consolidated and consolidating balance sheets and related statements of income and cash flows of the Company for each subsequent fiscal quarter after December 31, 2014 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income of the Company for each fiscal month after December 31, 2014 ended at least thirty-one (31) days before the Closing Date and (iv) forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements on a monthly basis for Fiscal Year 2017, on a quarterly basis for Fiscal Year 2018 and on an annual basis for Fiscal Year 2019 (“ Projections ”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time of such preparation.

(f)       The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Borrower and its Subsidiaries in scope and

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determination satisfactory to the Administrative Agent and the Lenders in their sole discretion.

(g)      Payment by the Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors to the Administrative Agent and the Lenders) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.

(h)      The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.

(i)       The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti‑money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.

(j)       [Reserved].

(k)      The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension (before and after giving effect to such Credit Extension); provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be 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 shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

(l)      No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Agents and the Lenders that:

Section 5.01       Existence, Qualification and Power; Compliance with Laws .  Each Loan Party and each of its Subsidiaries (a) is duly incorporated, organized or formed, and validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization (to the extent such concept exists in such jurisdiction), (b) has all requisite power

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and authority 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, (c) is duly qualified and in good standing (to the extent such concept exists) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), orders, writs, injunctions and orders and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted, except, with respect to the foregoing clauses (c), (d) and (e), as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.

Section 5.02       Authorization; No Contravention .  The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transaction, (a) are within such Loan Party’s corporate or other powers, (b) have been duly authorized by all necessary corporate or other organizational action, and (c) do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) except as set forth on Schedule 5.02 , result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01 ), or require any payment to be made under (w) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries, (x) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject or (y) any Material Agreement, or (iii) violate any material applicable Law.

Section 5.03       Governmental Authorization; Other Consents .  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document to which such Loan Party is a party, or for the consummation of the Transaction, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Collateral Agent, the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which are set forth on Schedule 5.03 or have been duly obtained, taken, given or made and are in full force and effect and (iii) such approvals, consents, exemptions, authorizations, actions, notices and filings the failure to obtain or make would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.  All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.

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Section 5.04       Binding Effect .  This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto.  This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity and principles of good faith and fair dealing.

Section 5.05       Financial Statements; No Material Adverse Effect .  (a) The Unaudited Financial Statements (A) fairly present in all material respects the financial condition of the Company as of the dates thereof and the Company’s results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except, in the case of the Unaudited Financial Statements, changes resulting from customary year-end adjustments consistent with past practice and the absence of footnotes and (B) show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date hereof that are required to be reflected on a balance sheet prepared in accordance with GAAP, except for such Indebtedness and other liabilities incurred since the date of the Unaudited Financial Statements in the ordinary course of business.

(b)      Since December 31, 2016, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.

(c)      The Projections furnished to the Administrative Agent prior to the Closing Date are based on good faith estimates and assumptions made by the management of the Borrower; provided , the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the differences may be material; provided   further , as of the Closing Date, management of the Borrower believed that the Projections were reasonable and attainable.

(d)      (i) The audited consolidated financial statements of the Borrower and its Subsidiaries most recently delivered pursuant to Section 6.01(a)  and Section 6.01(g) and (ii) the unaudited consolidated financial statements of the Borrower and its Subsidiaries most recently delivered pursuant to Section 6.01(b) , and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such periods (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (B) fairly present in all material respects 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 unaudited financial statements, to the absence of footnotes and to customary year‑end adjustments consistent with past practice.

(e)      The consolidated forecasted balance sheets, statements of income and statements of cash flows of the Borrower and its Subsidiaries delivered to the Lenders pursuant to Section 6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of the conditions existing at the time of delivery of such forecasts; it being understood that actual results may vary from such forecasts and that such variations may be material.

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Section 5.06       Litigation .  Except as set forth on Schedule 5.06 , there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or its Subsidiaries, including any Environmental Action, pending or, to any Loan Party’s knowledge, threatened before any Governmental Authority or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transaction.

Section 5.07       Ownership of Property; Liens

(a)      Each Loan Party and its Subsidiaries is the legal and beneficial owner of the Collateral pledged by it free and clear of any Lien, except for the Liens and security interests created or permitted under the Loan Documents including, any Liens permitted under Section 7.01 .

(b)      Each Loan Party and each of its Subsidiaries has good and marketable title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all real property used in the ordinary conduct of its business, free and clear of all Liens except for defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 7.01 and except where the failure to have such title or other interest would not reasonably be expected to have a Material Adverse Effect.  Set forth on Schedule 5.07(b) hereto is a complete and accurate list of all real property owned by any Loan Party or any of its Subsidiaries, showing, as of the date hereof, the street address, state and any other relevant jurisdiction, record owner and fair market value.  Set forth on Schedule 5.07(b) hereto is a complete and accurate list of all Leasehold Property under which any Loan Party or any Subsidiary is the tenant, showing as of the date hereof the street address, state and any other relevant jurisdiction, parties thereto, sublessee (if any), expiration date and annual base rental cost thereof.

(c)      Except for the properties set forth on Schedule 5.07(b) , as of the Closing Date, no Loan Party or any of its Subsidiaries owns any Material Owned Property or leases any Leasehold Property.

Section 5.08       Perfection of Security Interests . Upon the making of the filings and taking of the other actions set forth on Schedule 5.08 , all filings and other actions necessary to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Collateral Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and having priority over all other Liens on the Collateral except in the case of (a) non‑consensual Liens permitted under Section 7.01 , to the extent any such Liens would have priority over the Liens in favor of the Collateral Agent pursuant to any applicable Law, and (b) Liens not required to be perfected by control or possession pursuant to the Collateral and Guarantee Requirement to the extent that all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken.

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Section 5.09       Environmental Compliance .  Except as specifically set forth on Schedule 5.09 :

(a)      The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all Environmental Laws and Environmental Permits, all past non‑compliance with such Environmental Laws and Environmental Permits has been fully resolved without ongoing obligations, costs or liabilities in the aggregate, in excess of the Threshold Amount, and no circumstances exist that would be reasonably likely to (A) to the knowledge of the Loan Parties, form the basis of an Environmental Action against any Loan Party or any Subsidiary or any of their properties or (B) cause any such property to be subject to any remedial action requirement or any restrictions on ownership, occupancy, use or transferability under any Environmental Law, which, in each case, individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect.

(b)      None of the properties currently or, to the knowledge of the Loan Parties, formerly, owned or operated by any Loan Party or any of its Subsidiaries is listed or, to such Loan Party’s or each of its Subsidiaries’ knowledge, proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list; there are no, and, to the knowledge of the Loan Parties, never have been, any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of its knowledge, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries, in each case for which any Loan Party or any of its Subsidiaries is liable and that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect; and other than in compliance with applicable Environmental Laws, there is no friable asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of by any Loan Party or any of its Subsidiaries on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries other than in material compliance with applicable Environmental Laws and that, individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect.

(c)      Neither any Loan Party nor any of its Subsidiaries is undertaking, or is required either contractually or by any Environmental Law to undertake, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened Release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law and that individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and all Hazardous Materials generated, used, treated, handled or stored at, or transported by or on behalf of any Loan Party or any of its Subsidiaries at, to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have, to the knowledge of the

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Loan Parties, been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries.

(d)      The Borrower and each of its Subsidiaries has obtained, maintained and timely renewed all material Environmental Permits required for ownership and operation of its property and business as presently conducted and there are no proceedings pending, or to the Borrower’s knowledge, threatened, to revoke, review or materially modify any such Environmental Permits.  Neither the Borrower nor any of its Subsidiaries has received any written notification pursuant to any Environmental Law or otherwise has knowledge that any work, repairs, construction or Capital Expenditures are required to be made to be in or continue to be in compliance with any Environmental Law or any material Environmental Permit that individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(e)      Except as would not reasonably be expected to result in a material liability, no Loan Party nor any of its Subsidiaries has contractually assumed any liability or obligation to investigate or remediate any property under or relating to any applicable Environmental Law.

(f)      Borrower has provided Lenders with true and complete copies of all environmental reports, audits and sampling results in its possession or control.

(g)      Nothing contained in this Section 5.09 is intended to apply to any action, suit, investigation, litigation or proceeding (including any Environmental Action) relating to exposure to asbestos, in any form, or any asbestos containing materials.

Section 5.10       Taxes .  (a) Each of the Borrower and each of its Subsidiaries has timely filed all income and all other material tax returns and reports required to be filed, and has timely paid all Taxes (whether or not shown on such tax returns or reports) and all other amounts of federal, provincial, state, municipal, foreign 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 set forth on Schedule 5.10(a)  or are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.

(b)      Except as set forth on Schedule 5.10(b) or as would not, individually or in the aggregate, be reasonably likely to result in a Material Adverse Effect, (i) there are no claims being asserted in writing with respect to any amounts of taxes, (ii) there are no presently effective waivers or extensions of statutes in writing with respect to any amounts of taxes, and (iii) no tax returns are being examined by, and no written notification of intention to examine has been received from, the Internal Revenue Service or any other taxing authority, in each case, with respect to the Borrower or any of its Subsidiaries.

(c)      Neither the Borrower nor any of its Subsidiaries is party to any tax sharing agreement other than with an affiliate included in a consolidated or combined tax return, provided that any such tax sharing agreement shall be subject to the restrictions in Section 7.08 .

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Section 5.11       Compliance with ERISA .  (a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state Laws, except as is not, either individually or in the aggregate, reasonably likely to have a Material Adverse Effect.

(b)      (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) none of the Loan Parties or any of their Subsidiaries has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 et seq. or 4243 of ERISA with respect to a Multiemployer Plan, except for a liability that could not reasonably be expected to result in a Material Adverse Effect; and (iii) none of the Loan Parties or any of their Subsidiaries or any ERISA Affiliate has engaged in a transaction that would be subject to Section 4069 or 4212(c) of ERISA.

Section 5.12       Labor Matters .  There are no strikes pending or, or to the Borrower’s knowledge, threatened against the Borrower or any of its Subsidiaries that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.  The (i) hours worked and payments made to employees of the Borrower or any of its Subsidiaries have not been in violation in any material respect of the Fair Labor Standards Act or any other applicable Law dealing with such matters and (ii) all material payments due from the Borrower or any of its Subsidiaries or for which any claim may be made against the Borrower or any of its Subsidiaries, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Borrower or such Subsidiary to the extent required by GAAP.  The consummation of the Transaction will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Borrower or any of its Subsidiaries (or any predecessor) is bound, other than collective bargaining agreements that, individually or in the aggregate, are not material to the Borrower or any of its Subsidiaries.

Section 5.13       Insurance .  The properties of the Loan Parties and their Subsidiaries are insured in the manner contemplated by Section 6.07 Schedule 5.13 sets forth a true, complete and correct description of all insurance maintained by or on behalf of the Loan Parties and their Subsidiaries as of the Closing Date. As of the Closing Date, all such insurance is in full force and effect and all premiums in respect of such insurance have been duly paid.  The insurance maintained by or on behalf of the Loan Parties and their Subsidiaries is adequate and is in accordance with normal industry practice.

Section 5.14       Subsidiaries; Equity Interests .  As of the date hereof and the date of delivery of any supplemental Schedules pursuant to Section 6.02(d)  and Section 6.11 , none of the Loan Parties have any Subsidiaries other than those specifically disclosed in Schedule 5.14 , and all of the outstanding Equity Interests in each such Person and each such Subsidiary have been validly issued, are fully paid and non‑assessable.  As of the date hereof and the date of delivery of any supplemental Schedules pursuant to Section 6.02(d)  and Section 6.11 ,   Schedule 5.14 (a) sets forth the name and jurisdiction of organization of each Subsidiary of each of the Loan Parties, (b) sets forth the ownership interest of each Loan Party and each of its Subsidiaries in each of their respective Subsidiaries, including the percentage of such ownership

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and (c) identifies each Person the Equity Interests of which are required to be pledged pursuant to the Collateral and Guarantee Requirement and Section 6.11 .

Section 5.15       Margin Regulations; Investment Company Act; PATRIOT Act

(a)       None of the Loan Parties or any of their Subsidiaries is engaged nor will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U issued by the FRB.

(b)      None of the Loan Parties or any of their Subsidiaries or any Person controlling such Loan Party or any of its Subsidiaries is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.

(c)      None of the Loan Parties or any of their Subsidiaries is in material violation of any applicable laws relating to money laundering, including the PATRIOT Act, or terrorism, including Executive Order No. 13224 on Terrorist Financing, effective September 23, 2001, and the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended), or any enabling legislation or executive order relating thereto.  None of the Loan Parties or any of their Subsidiaries will knowingly use the proceeds of the Loans in violation of any of the foregoing statutes.

(d)      No Loan Party (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner that violates Section 2 of such executive order, or (iii) is a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to blocking or specific trade restrictions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or implementing executive order.

Section 5.16       Disclosure .  No report, financial statement, certificate or other written information furnished by or on behalf of the Borrower or any of its Subsidiaries to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains when furnished 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 materially misleading; provided that with respect to projections and other forward‑looking information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time of preparation; it being understood that such projections may vary from actual results and that such variances may be material.  There are no facts known (or which should upon the reasonable exercise of

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diligence be known) to Company (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection with the transactions contemplated hereby.

Section 5.17       Intellectual Property .  As of the date hereof and the date of delivery of any supplemental Schedules pursuant to Section 6.02(d)  and Section 6.11 , set forth on Schedule 5.17 is a complete and accurate list of all Registered patents, trademarks, service marks, domain names and copyrights, owned by the Borrower or any of its Subsidiaries as of such date, showing as of such date the jurisdiction in which each such item of Registered Intellectual Property is registered or in which an application is pending and the registration or application number.  The Borrower and each Subsidiary owns or has the right to use, all of the trademarks, service marks, trade names, domain names, copyrights, patents, know‑how, technology and other intellectual property recognized under applicable Law (collectively, “ Intellectual Property ”) that are material to the operation of their respective businesses as currently conducted and, to the knowledge of the Loan Parties, the use of such Intellectual Property by such Person or the operation of their respective businesses is not infringing upon any Intellectual Property rights held by any other Person except as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.

Section 5.18       Solvency .  After giving effect to the Transaction and the other transactions contemplated hereby and thereby, the Borrower and its Subsidiaries are, on a consolidated basis, Solvent.

Section 5.19       Material Agreements Schedule 5.19 contains a true, correct and complete list of all the Material Agreements in effect on the Closing Date, which, together with any updates provided pursuant to Section 6.03(l) , are in full force and effect and no defaults currently exist thereunder (other than as described in Schedule 5.19 or in such updates).

ARTICLE VI

AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in the case of the covenants set forth in Section 6.01 ,   Section 6.02 ,   Section 6.03 and Section 6.04(b) ) cause each Subsidiary to:

Section 6.01       Financial Statements .  Deliver to the Administrative Agent for prompt further distribution to each Lender:

(a)      as soon as available, but in any event within ninety (90) days after the end of each Fiscal Year of the Borrower, a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year, and the related consolidated and consolidating statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Year, setting forth in each case (i) in comparative form the

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figures for the previous Fiscal Year and (ii) a comparison of actual figures against the forecasts for such Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a (A) report and opinion of an independent registered public accounting firm reasonably acceptable to the Administrative Agent (Hein & Associates shall be acceptable), which report and opinion shall (1) be prepared in accordance with generally accepted auditing standards and (2) not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit other than pertaining solely to impending debt maturities of any Indebtedness occurring within twelve (12) months of such audit, and (B) certificate of such accounting firm to the Lenders stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof; and

(b)      as soon as available, but in any event, within forty‑five (45) days after the end of each fiscal quarter of the Borrower (commencing with the first full fiscal quarter ended after the Closing Date), a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and consolidating statements of income or operations, and consolidated and consolidating statements of cash flows for such fiscal quarter and for the portion of the Fiscal Year then ended, setting forth in each case (A) in comparative form the figures for the corresponding fiscal quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and (B) a comparison of actual figures for such fiscal quarter against the forecasts for such fiscal quarter, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, Shareholders’ Equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to customary year‑end adjustments consistent with past practice and the absence of footnotes.

(c)      as soon as available, but in any event, within thirty (30) days after the end of each of fiscal month of the Borrower (commencing with the first full fiscal month ended after the Closing Date),

(i)      a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal month, and the related consolidated and consolidating statements of income or operations, (which shall set forth the cost of sales and in selling, general and administrative (SG&A) expenses, gross margin, restructuring charges and unusual or nonrecurring expenses) for such fiscal month and for the portion of the Fiscal Year then ended, together with a calculation of the trailing twelve-month Consolidated Adjusted EBITDA as of the end of such month and setting forth in each case (A) in comparative form the figures for the corresponding fiscal month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and (B) a comparison of actual figures for such fiscal month against the forecasts for such fiscal month, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations,

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Shareholders’ Equity of the Borrower and its Subsidiaries in accordance with GAAP, subject only to customary year‑end adjustments consistent with past practice and the absence of footnotes;

(ii)     until the consummation and final closing of the Specified Subsidiary Transaction, a pro forma rolling   thirteen-week   cash flow budget of the Borrower and its Domestic Subsidiaries, which budget shall detail all cash inflows and outflows during such period and shall otherwise be reasonably satisfactory in all respects to the Administrative Agent (each such budget, a Cash Flow Budget ).  Each Cash Flow Budget shall include a reconciliation of the actual results for the immediately preceding thirteen-week period to the Cash Flow Budget for such immediately preceding thirteen-week period and a detailed explanation of all material variances from the immediately preceding thirteen-week Cash Flow Budget and shall demonstrate that accounts payables have been made in the ordinary course of business and consistent with past practices; and

(iii)    a schedule of outstanding letters of credit, outstanding Indebtedness balances and Liquidity reflected on the balance sheet of the Loan Parties on a consolidated basis.

(d)       Annual Forecasts and Budget .   As soon as available and in any event no later than February 1 of each Fiscal Year, forecasts prepared by management of the Borrower, in form reasonably satisfactory to the Administrative Agent, of balance sheets, income statements and cash flow statements on a monthly basis for the period until the Maturity Date, and an explanation of the assumptions on which such forecasts are based and demonstrating projected compliance with the Financial Covenants, in each case in form reasonably satisfactory to the Administrative Agent.

(e)       Management Discussion and Analysis Reports .  Simultaneously with the delivery of each set of financial statements referred to in Section 6.01(a) ,   (b) and (c) , (i) a report setting forth management’s analysis and discussion of the condition (financial and otherwise) operations, which may be in the form of the Business Segment Review delivered to the Administrative Agent prior to the Closing Date, (ii) a summary of all backlog, walk forwards and opportunity listings, (iii) [reserved], (iv) a schedule of outstanding letters of credit (including the Existing Letters of Credit), and (v) a schedule of outstanding performance and surety bonds and a schedule of costs in excess of billings.  The Borrower shall schedule one (1) telephonic or in-person conference per fiscal quarter among the Administrative Agent, the Lenders and the chief financial officer and chief executive officer of the Borrower to discuss the contents of the relevant reports.

(f)       Annual Reconciliation .  Simultaneously with the delivery of each set of financial statements referred to in Section 6.01(a) , an annual reconciliation to the forecast delivered to the Administrative Agent for the Fiscal Year recently ended in footnote form and in substance satisfactory to the Administrative Agent.

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(g)       December 31, 2016 Audited Financial Statements .  As soon as available and in any event no later than August 31, 2017, the final audited consolidated balance sheets and related statements of income, Shareholders’ Equity and cash flows of the Company for the Fiscal Year of the Company ended December 31, 2016.  

Section 6.02       Certificates; Reports; Other Information .  Promptly deliver to the Administrative Agent for further distribution to each Lender:

(a)      upon delivery of the financial statements referred to in Section 6.01(a) ,   (b) , and (c)(i) (solely as it relates to the Financial Covenants set forth in Section 7.12(e) ), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower;

(b)      promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which the Borrower files with the SEC or with any successor Governmental Authority (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S‑8), all press releases and other statements made available generally by the Borrower or any of its Subsidiaries to the public concerning material developments in the business of the Borrower or any of its Subsidiaries, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;

(c)      promptly after the receipt or furnishing thereof, copies of any material requests or material notices received by any Loan Party or any of its Subsidiaries (other       than in the ordinary course of business) in respect of any instrument, indenture, loan or credit or similar agreement relating to Indebtedness in excess of the Threshold Amount or relating to the ABN AMRO Facility;

(d)      together with the delivery of each Compliance Certificate pursuant to Section 6.02(a) , (i) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a prepayment under Section 2.02(b) , (ii) a list of Subsidiaries as of the date of delivery of such Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date or the date of the last such list, (iii) a report supplementing Schedules 5.07(b) and 5.17 and Schedules I and IV of the Security Agreement and (iv) such other information required by the Compliance Certificate;

(e)      within fifteen (15) days of filing or receipt of any material written notification, copies of all Tax returns, waivers, amendments, requests for extension and other material written notifications which the Borrower and its Subsidiaries files with, or receives from, the Internal Revenue Service or any other taxing authority;

(f)      any notices of default given or received with respect to any Permitted Servicing Joint Venture and, upon written request of the Administrative Agent, such

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additional material or documentation provided by or to the Loan Parties with respect to each such Permitted Servicing Joint Venture as may be reasonably requested; and

(g)      promptly, such additional information regarding the business, legal, 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 through the Administrative Agent may from time to time reasonably request.

Documents required to be delivered pursuant to Section 6.01(a) ,   (b)  or (c) or Section 6.02(b) (c)  or (e) may be delivered electronically to the Administrative Agent for further distribution to each Lender and if so delivered, shall be deemed to have been delivered on the date the Borrower delivers such documents to the Administrative Agent by electronic mail;   provided that upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent.  Notwithstanding the foregoing, the Borrower shall deliver originally executed Compliance Certificates to the Administrative Agent (in addition to the electronic copies pursuant to the foregoing).  Each Lender shall be solely responsible for timely accessing electronically provided documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.

Section 6.03       Notice Requirements; Other Information .  (i) Promptly after a Responsible Officer obtains knowledge thereof, notify the Administrative Agent of each of the following events or circumstances, and, (ii) as soon as available, provide to the Administrative Agent, for prompt further distribution to each Lender, the following information and documents:

(a)      the occurrence of any Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Borrower has taken or proposes to take with respect thereto;

(b)      the occurrence of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;

(c)      the commencement of, or any material development in, any litigation or governmental proceeding (including without limitation pursuant to any applicable Environmental Law) pending against the Borrower or any of the Subsidiaries that is listed on Schedule 5.06 or that could reasonably be expected to be determined adversely and, if so determined, to result in a Material Adverse Effect;

(d)      the occurrence of any ERISA Event that could reasonably be expected to result in a liability above the Threshold Amount or the breach of any representation in Section 5.11 or 5.12 ;

(e)      the occurrence of any event triggering a Collateral and Guarantee Requirement under Section 6.11 ;

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(f)      any information with respect to environmental matters as required by Section 6.04(b) ;

(g)      copies of all notices, requests and other documents received by any Loan Party or any of its Subsidiaries pursuant to any instrument, indenture, loan or credit or similar agreement relating to Indebtedness in excess of the Threshold Amount regarding or related to any breach or default by any party thereto or any other event that could reasonably be expected to materially impair the value of the interests or the rights of any Loan Party or otherwise have a Material Adverse Effect and copies of any amendment, modification or waiver of any provision of any such instrument, indenture, loan or credit or similar agreement relating to any Indebtedness in excess of the Threshold Amount and, from time to time upon request by the Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements relating to any Indebtedness in excess of the Threshold Amount as the Administrative Agent may reasonably request;

(h)      a tax event or liability not previously disclosed in writing by the Borrower to the Administrative Agent which would reasonably be expected to result in a material liability, together with any other information as may be reasonably requested by the Administrative Agent to enable the Administrative Agent to evaluate such matters;

(i)       any occurrence of a Change of Control;

(j)       any change (i) in any Loan Party’s corporate name, (ii) any Loan Party’s identity and corporate structure, (iii) any Loan Party’s taxpayer identification number or (iv) any Loan Party’s location.  The Borrower agrees that it will not, and will not permit any of its Subsidiaries to, permit or make any change referred to in this Section 6.03(j) unless all filings have been made under the Uniform Commercial Code within the time periods provided therein or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest in the Collateral and for the Collateral Agent at all times following such change to have a valid, legal and perfected first priority security interest as contemplated by the Collateral Documents in each case, subject to Permitted Liens;

(k)      immediately upon the discovery of any inaccuracy, miscalculation or misstatement contained in any Compliance Certificate or other certificate provided for any period that affects any financial or other calculations, representations or warranties or other statements impacting any provision of this Agreement and any other Loan Document in any material respect, notice of such inaccuracy, miscalculation or misstatement together with an updated certificate including the corrected information, calculation or statement, as applicable;

(l)       promptly, and in any event within ten (10) Business Days (i) after any Material Agreement of the Borrower or any of its Subsidiaries is terminated or amended in a manner that is materially adverse to Borrower or such Subsidiary, as the case may be, or (ii) after any new Material Agreement is entered into, a written statement describing

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such event, with copies of such material amendments or new contracts, delivered to Administrative Agent (to the extent such delivery is permitted by the terms of any such Material Agreement, provided , no such prohibition on delivery shall be effective if it were bargained for by Borrower or its applicable Subsidiary with the intent of avoiding compliance with this Section 6.03(l) ), and an explanation of any actions being taken with respect thereto;

(m)     each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 6.01(a) , the Company shall deliver to Collateral Agent an Officer’s Certificate either (i)  confirming that there has been no change in such information since the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section and/or identifying such changes, or (ii) certifying that all UCC financing statements (including fixtures filings, as applicable) or other appropriate filings, recordings or registrations, have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified in the Collateral Questionnaire or pursuant to clause (i) above to the extent necessary to protect and perfect the security interests under the Collateral Documents for a period of not less than eighteen (18) months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period);

(n)      [reserved]; and

(o)      any management letter delivered to management of the Borrower by an independent registered public accounting firm.

Section 6.04       Environmental Matters .  (a) Comply and cause each of its Subsidiaries and take all commercially reasonable efforts to cause all lessees and other Persons operating or occupying any real property owned or leased by the Loan Parties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew, and cause each of its Subsidiaries to obtain, maintain and timely renew, all Environmental Permits required under Environmental Laws for its operations and properties; and conduct, and cause each of its Subsidiaries to conduct, any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action required to remove, clean up and/or otherwise address all violations of Environmental Laws and all Releases or threatened Releases of Hazardous Materials from any of its properties, as required under, and in accordance with the requirements of all Environmental Laws; provided ,   however , that neither the Borrower nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and, to the extent required by GAAP, appropriate reserves are being maintained with respect to such circumstances.

(b)       Environmental Reporting Requirements .  Promptly, and in any event within ten (10) Business Days, after a Responsible Officer obtains knowledge thereof, notify the Administrative Agent of or, deliver to the Administrative Agent, for further distribution to each

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Lender copies of any and all material written correspondence and material documents concerning:

(i)      any Environmental Action against or of any non‑compliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that would (1) reasonably be expected to result in a liability to any Loan Party in excess of $500,000 or (2) cause any Mortgaged Properties to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law;

(ii)     to the extent any of the following is reasonably expected to result in a liability to any Loan Party in excess of $500,000: (1) any occurrence of any Release or threatened Release of Hazardous Materials required to be reported to any Governmental Authority under applicable Environmental Law, (2) any Release or threatened Release that could reasonably be expected to result in an Environmental Action or (3) the Loan Parties’ discovery of any occurrence of or condition on any real property adjoining or in the vicinity of any site or facility that would be reasonably expected to cause such site or facility or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws;

(iii)    to the extent reasonably expected to result in a liability to any Loan Party in excess of $500,000, any action proposed to be taken by the Borrower or any of its Subsidiaries to modify current operations in a manner that would reasonably be expected to subject the Borrower and its Subsidiaries to any material additional obligations or requirements under Environmental Laws;

(iv)    copies of all material environmental reports or audits (whether produced by the Borrower or its Subsidiaries or any third party or Governmental Authority) and any Phase I or Phase II reports in respect of any sites or real property owned, leased or operated by the Borrower and its Subsidiaries that are in possession or control of any Loan Party or any of its Subsidiaries;

(v)     to the extent any of the following is reasonably expected to result in a liability to any Loan Party in excess of $500,000: copies of any and all material written communications with respect to (A) any Environmental Action, (B) any release or threatened release or non‑compliance with any Environmental Law required to be reported to any Governmental Authority and (C) any request for information from a Governmental Authority that suggests such Governmental Authority is investigating the potential responsibility of the Borrower or any of its Subsidiaries as a potentially responsible party;

(vi)    the good faith belief that a Release of Hazardous Materials, or a violation of Environmental Law reasonably likely to result in a fine or penalty in excess of $500,000, has occurred on or after the Closing Date, and within sixty (60) days after request by the Administrative Agent and at the expense of the Borrower, any additional environmental site assessment reports for any of its or its Subsidiaries’ properties described in such request prepared by an environmental consulting firm reasonably

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acceptable to the Administrative Agent, indicating the presence or absence of such Hazardous Materials and the estimated cost of any compliance, removal or remedial action in connection with any such Hazardous Materials on such properties; without limiting the generality of the foregoing, if the Administrative Agent reasonably determines at any time that a material risk exists that any such report will not be provided within the time referred to above, the Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of the Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary that owns any property described in such request to grant at the time of such request to the Administrative Agent, the Lenders, such firm and any agents or representatives thereof, the right, subject to the rights of tenants, to enter onto their respective properties to undertake such an assessment; and

(vii)   any such other documents and information as the Administrative Agent may reasonably request from time to time.

Section 6.05       Maintenance of Existence .  (a) Preserve, renew and maintain in full force and effect its legal existence, structure and name under the Laws of the jurisdiction of its organization and (b) take all commercially reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business, except pursuant to a transaction permitted by Section 7.04 or Section 7.05 ;   provided , that nothing in this Section 6.05 shall prevent any Loan Party (other than the Borrower) from discontinuing operations or maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of such Loan Party, desirable in the conduct of its or their business and is not materially adverse to the Lenders.

Section 6.06       Maintenance of Properties .  Maintain, preserve and protect all of its material properties and equipment that are used or useful in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and make all commercially reasonable and appropriate repairs, renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof except where failure to do so would not reasonably be expected to materially adversely affect the use of the related property; provided , that nothing in this Section 6.06 shall prevent any Loan Party (other than the Borrower) from discontinuing operations or maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of such Loan Party, desirable in the conduct of its or their business and is not materially adverse to the Lenders.

Section 6.07       Maintenance of Insurance .  Maintain with financially sound and reputable insurance companies (in the good faith judgment of management), insurance with respect to its properties and business (including D&O insurance) 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 (after giving effect to any self‑insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Borrower and its Subsidiaries) as are customarily carried by a Person engaged in similar businesses and owning or leasing similar properties in the same general areas in which the Borrower or such Subsidiary operates.

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Section 6.08       Compliance with Laws . Comply with the requirements of all Laws and all orders, writs, injunctions, decrees and judgments applicable to it or to its business or property, except where such non‑compliance is not, either individually or in the aggregate, reasonably likely to have a Material Adverse Effect.

Section 6.09       Books and Records .  Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and as are sufficient to permit the preparation of financial statements in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be.

Section 6.10       Inspection Rights/Lender Meetings .  (a) Permit representatives and independent contractors of the Administrative Agent to visit and inspect any properties of the Borrower and its Subsidiaries (subject, in the case of third party customer sites, to customary access agreements) and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided ,   however , that (i) such visits and inspections shall be coordinated through the Administrative Agent and (ii) the Administrative Agent shall not exercise such rights more than four (4) times during any Fiscal Year absent the occurrence of an Event of Default.  The Administrative Agent shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants to the extent reasonably feasible.  Neither the Borrower nor any Subsidiary shall be required to disclose to the Administrative Agent or any Lender any information that, in the opinion of counsel to the Borrower or such Subsidiary, is prohibited by Law to be disclosed, is subject to attorney client privilege or constitutes attorney work product or the disclosure of which would cause a material breach of a binding non‑disclosure agreement with a third party to the extent such agreement is not made in contemplation of the avoidance of this Section 6.10 .

(b)      The Borrower will, upon the request of Administrative Agent or Required Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and Administrative Agent) at such time as may be agreed to by the Borrower and Administrative Agent.

Section 6.11       Covenant to Guarantee Obligations and Give Security .  Upon (x) the formation or acquisition of any new direct or indirect Subsidiaries by any Loan Party or (y) the acquisition of any property by any Loan Party (it being understood that, in the case of real property under the foregoing clauses (x)  and (y) , only the requirements of Section 6.11(g) , which requirements shall apply only to Material Owned Property, Section 6.11(b)  and Section 6.11(f)  shall apply), and such property, in the sole judgment of the Collateral Agent, shall not already be subject to a perfected first priority security interest in favor of the Collateral Agent for the benefit of the Secured Parties, then each Loan Party shall, in each case at such Loan Party’s expense:

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(a)      in connection with the formation or acquisition of a Subsidiary, within thirty (30) days after such formation or acquisition (or such longer period as the Collateral Agent may agree in its sole discretion), cause each such Subsidiary that is required to be a Guarantor pursuant to the Collateral and Guarantee Requirement, to duly execute and deliver to the Collateral Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Collateral Agent, guaranteeing the other Loan Parties’ Obligations under the Loan Documents,

(b)      within thirty (30) days after (or such longer period as the Collateral Agent may agree in its sole discretion) such formation or acquisition, furnish to the Collateral Agent a description of the Material Owned Properties and material personal properties of such Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement or the Material Owned Property and personal properties so acquired, in each case in detail reasonably satisfactory to the Collateral Agent,

(c)      within thirty (30) days after (or such longer period as the Collateral Agent may agree in its sole discretion) (i) acquisition of property by any Loan Party, duly execute and deliver, and cause each Loan Party to duly execute and deliver, to the Collateral Agent such additional pledges, assignments, Securities Pledge Agreement Supplements, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other security agreements (which, to the extent applicable and if relating to the type of Collateral the granting of a security interest in which can be effected through the execution of a joinder agreement or supplement to the Securities Pledge Agreement (a “ Securities Pledge Agreement Supplement ”), a joinder agreement or supplement to the Security Agreement (a “ Security Agreement Supplement ”) or a joinder agreement or supplement to the Intellectual Property Security Agreement (an “ Intellectual Property Security Agreement Supplement ”) shall be effected in such manner), as specified by, and in form and substance reasonably satisfactory to the Collateral Agent, in each case securing payment of all the Obligations of such Loan Party under the Loan Documents and granting Liens on all such properties and (ii) such formation or acquisition of any new Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement, duly execute and deliver and cause such Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement and each Loan Party acquiring Equity Interests in such Subsidiary to duly execute and deliver to the Collateral Agent pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other security agreements (which, to the extent applicable and if relating to the type of Collateral the granting of a security interest in which can be effected through the execution of a Security Agreement Supplement or Intellectual Security Agreement Supplement shall be effected in such manner) as specified by, and in form and substance reasonably satisfactory to, the Collateral Agent, in each case securing payment of all of the Obligations of such Subsidiary or Loan Party, respectively, under the Loan Documents and granting Liens on all properties of such new Subsidiary,

(d)      within thirty (30) days (or such longer period as the Collateral Agent may agree in its sole discretion) after such formation or acquisition, take, and cause each Loan

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Party and each newly acquired or newly formed Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to take or cause to be taken, whatever action (including, without limitation, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid, perfected (subject to the Collateral and Guarantee Requirement) Liens on the properties purported to be subject to the pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and security agreements delivered pursuant to this Section 6.11 , enforceable against all third parties in accordance with their terms, subject to Permitted Liens,

(e)      within thirty (30) days (or such longer period as the Collateral Agent may agree in its sole discretion) after such formation or acquisition, deliver to the Collateral Agent, upon the request of the Collateral Agent in its sole discretion, a signed copy of a favorable opinion in customary form, addressed to the Collateral Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Collateral Agent addressing such matters as the Collateral Agent may reasonably request,

(f)      at any time and from time to time, promptly execute and deliver, and cause each Loan Party and each newly acquired or newly formed Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to execute and deliver, any and all further instruments and documents and take, and cause each Loan Party and each newly acquired or newly formed Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to take, all such other action as the Collateral Agent may deem reasonably necessary or desirable to satisfy the Collateral and Guarantee Requirement in obtaining the full benefits of, or in perfecting and preserving the Liens granted pursuant to (as applicable), such guaranties, Mortgages, pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreement supplements and security agreements,

(g)      after the Closing Date, promptly within sixty (60) days after (x) the acquisition of any Material Owned Property by any Loan Party, (y) the formation or acquisition of any new direct or indirect Subsidiaries that owns any Material Owned Property and (z) the entering into a Leasehold Property or the formation or acquisition of any new direct or indirect Subsidiaries that enters into a new Leasehold Property, in each case if such Material Owned Property or Leasehold Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and promptly thereafter shall cause such real property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement, and otherwise satisfy the Collateral and Guarantee Requirement with respect to such real property or Leasehold Property, as applicable, and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien, and

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(h)       u pon the written request of the Administrative Agent following a Change in Law pursuant to which the Administrative Agent reasonably determines that (x) the circumstances causing the undistributed earnings of any direct Foreign Subsidiary other than a Specified Foreign Subsidiary (such earnings as determined for United States federal income tax purposes) to be treated as a deemed dividend to the Borrower or any other Domestic Subsidiary for United States federal income tax purposes or (y) such other circumstances no longer subject the Borrower or any other Domestic Subsidiary to liability for any additional United States income taxes by virtue of Section 956 of the Code or any other applicable provision of the Code other than any liability arising as a result of the Borrower’s or such Domestic Subsidiary’s ownership of the Equity Interests of a Specified Foreign Subsidiary (“ CFC Pledge Restrictions ”), then that portion of such direct Foreign Subsidiary’s outstanding Equity Interests issued by such Foreign Subsidiary not theretofore pledged pursuant to the relevant Collateral Document shall be pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to a supplement to the relevant Collateral Document (or another pledge agreement in substantially identical form, if needed) to the extent that entering into such Collateral Document is permitted by the Laws of the respective foreign jurisdiction and with all documents delivered pursuant to this Section 6.11(h) to be in form, scope and substance reasonably satisfactory to the Collateral Agent, unless counsel for the Company reasonably acceptable to the Administrative Agent provides, within sixty (60) days after such written request of the Administrative Agent, a written opinion addressed to the Borrower and the Administrative Agent, in form and substance mutually satisfactory to the Borrower and the Administrative Agent to the effect that, with respect to any direct Foreign Subsidiary of any Loan Party that has not already had all of the Equity Interests issued by it pledged pursuant to the Collateral Documents, a pledge of more than 65% of the total combined voting power of all classes of Equity Interests of such Foreign Subsidiary entitled to vote could reasonably be expected, despite such Change in Law, to continue to be subject to a CFC Pledge Restriction. 

Section 6.12       Use of Proceeds .  The proceeds of the Loans shall be used (a) to refund, refinance and replace the existing secured asset-based revolving credit facility on the Closing Date, (b) to provide working capital and other general corporate purposes permitted hereunder and (c) for fees and expenses related to the Transaction.

Section 6.13       Further Assurances; Post‑Closing Undertakings .  (a)  General Assurances .  (i) Within the time periods specified on Schedule 6.13 (as each may be extended by the Administrative Agent in its reasonable discretion), provide such Collateral Documents and complete such undertakings as are set forth on Schedule 6.13 .

(ii)     Promptly upon request by any Agent, or any Lender through the Administrative Agent, correct, and cause each of its Subsidiaries promptly to correct, any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof.

(iii)    Promptly upon request by any Agent, or any Lender through the Administrative Agent, do, execute, acknowledge, deliver, record, re‑record, file, re‑file, register

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and re‑register any and all such further acts, deeds, conveyances, pledge agreements, Mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, collateral access agreements, assurances and other instruments as any Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (w) carry out more effectively the purposes of the Loan Documents, (x) to the fullest extent permitted by applicable Law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (y) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (z) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.

(iv)    At the reasonable request of the Collateral Agent, use commercially reasonable efforts to cause any third parties to deliver or cause to be delivered such documents and instruments necessary to create, perfect and protect the security interests of the Secured Parties in the Collateral, subject to the express limitations of the Collateral and Guarantee Requirement.

(v)     At the request of the Administrative Agent, use commercially reasonable efforts to obtain the applicable consents to security interests in assets in which the granting of a security interest is prohibited by applicable law or agreements containing anti‑assignment clauses (it being understood that the Loan Parties shall not be required to commence litigation or expend any sums of money (except reasonable expenses in obtaining such consents) to obtain such consents).

Section 6.14       Taxes .  (a) Pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, which, if unpaid when due and payable, may reasonably be expected to become a tax Lien upon any properties of the Borrower or any of its Subsidiaries not otherwise permitted under this Agreement; provided that none of the Borrower nor any of its Subsidiaries shall be required to pay any such Tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP unless and until any tax Lien resulting therefrom attaches to its property and becomes enforceable against its other creditors.

(b)      Be classified as a corporation for United States federal income tax purposes and be the common parent of an affiliated group that will elect to file consolidated United States federal income tax returns together with the Borrower and its Subsidiaries.

Section 6.15       End of Fiscal Years; Fiscal Quarters .  Cause (i) its Fiscal Year to end on or about December 31 of each calendar year and (ii) its fiscal quarters to end on or about

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March 31, June 30, September 30 and December 31 of each calendar year, in each case unless otherwise approved by the Administrative Agent.

Section 6.16       ERISA .  (a)  ERISA Events and ERISA Report s.  Deliver to the Administrative Agent (i) promptly and in any event within ten (10) days after any Loan Party, any Subsidiary or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of the Chief Financial Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party, such Subsidiary or such ERISA Affiliate has taken and proposes to take with respect thereto and (ii) within ten (10) days of the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information.

(b)       Plan Terminations .  Promptly and in any event within three (3) Business Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan.

(c)       Plan Annual Reports .  Promptly and in any event within thirty (30) days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan.

(d)       Multiemployer Plan Notices .  Promptly and in any event within five (5) Business Days after receipt thereof by any Loan Party, any Subsidiary or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (i) the imposition of Withdrawal Liability by any such Multiemployer Plan, (ii) the reorganization or termination, or a determination that such Multiemployer Plan is in endangered or critical status, within the meaning of Title IV of ERISA, of any such Multiemployer Plan or (iii) the amount of liability incurred, or that may be incurred, by such Loan Party, such Subsidiary or such ERISA Affiliate in connection with any event described in clause (i) or (ii).

Section 6.17       Permitted Servicing Joint Ventures .  

(a)      The Borrower shall submit a Servicing Joint Venture Proposal Package with respect to a proposed Joint Venture to the Administrative Agent at least ten (10) Business Days prior to the time at which the formation and governing documents of such Joint Venture would become binding upon a Loan Party. If the Borrower submits a Servicing Joint Venture Package for an Investment that does not satisfy the criteria set forth in the definition of “Permitted Servicing Joint Venture”, the Administrative Agent may, in its sole discretion, determine to approve such Investment as a “Permitted Servicing Joint Venture”, notwithstanding the failure of such Investment to satisfy the criteria set forth in the definition of “Permitted Servicing Joint Venture”. The Administrative Agent shall respond to the Borrower’s request for such approval within five (5) Business Days after receipt of the Servicing Joint Venture Proposal Package; provided that the Administrative Agent’s failure to respond within such five (5) Business Day period shall be deemed to be a rejection of such Servicing Joint Venture Proposal Package.

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(b)      Within five (5) Business Days following the execution of definitive documentation relating to such Permitted Servicing Joint Venture, the Borrower shall deliver to the Administrative Agent sufficient copies of all such definitive documentation for distribution to the Lenders (any such documentation that meets the definition of a Material Agreement, shall be considered a Material Agreement).

Section 6.18       Chief Restructuring Officer .  On or prior to the date that is one hundred eighty (180) days following the Closing Date, the Administrative Agent shall have the option to request that the Borrower appoint a chief restructuring officer (a “ Chief Restructuring Officer ”).  Upon such request, the Borrower shall engage a Chief Restructuring Office that is reasonably satisfactory to the Administrative Agent.

ARTICLE VII

NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly:

Section 7.01       Liens .  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues (including accounts receivable), 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 7.01(b) ;

(c)       Liens for taxes, assessments or governmental charges which are not overdue for a period of more than thirty (30) days or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP;

(d)       statutory or common law Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, suppliers, construction contractors or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than thirty (30) days or if more than thirty (30) days overdue, are unfiled (or if filed have been discharged or stayed) and no other action has been taken to enforce such Lien or which are being contested in good faith, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP;

(e)       (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, (ii) pledges and deposits in the ordinary course of business securing liability

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for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Subsidiary and (iii) Liens securing the financing of insurance premiums (to the extent such Liens extend to the unearned premiums for such insurance);

(f)       deposits to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business;

(g)      easements, rights‑of‑way, covenants, conditions, restrictions, encroachments, and other survey defects protrusions and other similar encumbrances and minor title defects affecting real property which were not incurred in connection with Indebtedness and do not in any case materially and adversely interfere with the use of the property encumbered thereby for its intended purposes;

(h)      Liens securing Indebtedness permitted under Section 7.03(c) ;   provided that (i) such Liens attach concurrently with or within one hundred twenty (120) days after the acquisition, or the completion of the construction, repair, replacement or improvement (as applicable) of the property subject to such Liens, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits, and (iii) with respect to Capital Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to such Capital Leases;

(i)      Liens that are contractual rights of set‑off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Subsidiary (so long as such Subsidiary remains a Subsidiary) to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or such Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Subsidiaries in the ordinary course of business;

(j)      Liens arising from precautionary Uniform Commercial Code financing statement filings regarding leases entered into by the Borrower and its Subsidiaries in the ordinary course of business;

(k)     any zoning, land‑use or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property;

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(l)      the modification, replacement, renewal or extension of any Lien permitted by clause (b) of this Section 7.01 ;   provided that (i) the Lien does not extend to any additional property other than (A) after‑acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03 , and (B) proceeds and products thereof; and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03 ; and

(m)      [reserved];

(n)       Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds relating to such judgments;

(o)       Liens on assets of Foreign Subsidiaries that secure Indebtedness permitted under Section 7.03 ;

(p)       Liens in connection with the cash collateralization of the Existing Letters of Credit (and any replacements thereof), so long as the amount secured thereunder does not exceed 105% of the aggregate face amount of such Existing Letters of Credit (or such replacement letters of credit);

(q)       Liens in favor of customs and revenue authorities arising as a matter of applicable Law and in the ordinary course of business to secure payment of customs duties in connection with the importation of goods; and

(r)       Non-exclusive licenses of patents, trademarks, copyrights and other intellectual property rights in the ordinary course of business.

Section 7.02       Investments .  Make any Investments, except:

(a)      Investments by the Borrower or its Subsidiaries in cash and Cash Equivalents;

(b)      (i) intercompany loans to the extent permitted under Section 7.03(i) ; and equity Investments owned as of the Closing Date in any Subsidiary, (ii) Investments made after the Closing Date in any wholly-owned Guarantor Subsidiary and (iii) Investments made in the ordinary course of business by Borrower or any Subsidiary in a Specified Foreign Subsidiary to pay for the operating expenses of any Specified Foreign Subsidiary in an aggregate amount not to exceed $2,500,000 in any Fiscal Year;

(c)      to the extent constituting Investments, Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments expressly permitted under Section 7.01 ,   Section 7.02 ,   Section 7.03 ,   Section 7.04 ,   Section 7.05 and Section 7.06 , respectively and Capital Expenditures; provided ,   however , that no Investments may be made solely pursuant to this Section 7.02(c) ;

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(d)      Investments existing on the date hereof and disclosed on Schedule 7.02(d) and Investments consisting of any modification, replacement, renewal, reinvestment or extension of any such Investment existing on the date hereof; provided that the amount of any Investment permitted pursuant to this Section 7.02(d) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.02 ;  

(e)      promissory notes and other non‑cash consideration received in connection with Dispositions permitted by Section 7.05 ;

(f)       Investments in the form of advances to subcontractors in the ordinary course of business;

(g)      cash Investments consisting of the entry into joint venture agreements for unincorporated joint ventures by any Loan Party for the limited purpose of negotiating, signing and performing construction, engineering, procurement, construction management and similar services provided that the aggregate value of all such cash Investments does not exceed $500,000 at any one time outstanding and provided further that no Loan Party or any Subsidiary of any Loan Party shall have any liability in excess of the cash Investment actually paid to such joint venture (as permitted by this Section 7.02(g)) for any Indebtedness or any other obligation of any such joint venture;

(h)      non-cash Investments consisting of entry into Permitted Servicing Joint Ventures by the services division of a Loan Party or a Subsidiary of a Loan Party, provided that the Loan Parties and the Subsidiaries of the Loan Parties shall not be party to more than four (4) Permitted Servicing Joint Ventures at any given time;

(i)       Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of insolvency proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;

(j)       Equity Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to a Loan Party or its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or claims; and

(k)      Investments not otherwise permitted pursuant to this Section 7.02 in an aggregate amount not to exceed $500,000 at any time outstanding; provided that, immediately before and immediately after giving pro forma effect to any such Investments, no Default or Event of Default shall have occurred and be continuing.      

Section 7.03       Indebtedness .  Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “ Permitted Indebtedness ”):

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(a)      Obligations of the Borrower and its Subsidiaries under the Loan Documents;

(b)      Surviving Indebtedness listed on Schedule 7.03(b) , but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided , such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, provided that the Indebtedness under the ABN AMRO Facility may be increased to an aggregate principal amount not to exceed €20,000,000 at any time outstanding or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;

(c)      Indebtedness with respect to (i) Capital Leases existing on the Closing Date as specified on Schedule 7.03(c) and (ii) additional Capital Leases incurred after the Closing Date and purchase money Indebtedness in an aggregate amount not to exceed $250,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;

(d)      Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;

(e)      Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, performance bonds, surety bonds, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self‑insurance or other Indebtedness with respect to reimbursement‑type obligations regarding workers compensation claims;

(f)       Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless

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contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;

(g)      Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Borrower or any of its Subsidiaries in the ordinary course of business;

(h)      unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Borrower or any of its Subsidiaries;

(i)       (i) Indebtedness of any Loan Party owing to any other Loan Party, (ii) those certain intercompany notes evidencing Indebtedness of the Borrower to Global Power Netherlands B.V. existing on the Closing Date as specified on Schedule 7.03(i) and (iii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02 ;   provided , that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents, (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (C) any payment by any Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro rata reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made;

(j)       [reserved];

(k)      Guarantee Obligations with respect to Indebtedness permitted pursuant to clauses (a), (b), (c), (d), (e), (f) and (j) of this Section 7.03 ;

(l)      the Existing Letters of Credit and any replacement letters of credit issued by a replacement issuing bank after the Closing Date;

(m)     Indebtedness of Foreign Subsidiaries to non-Affiliates in an aggregate principal amount not to exceed $500,000 at any time outstanding; and

(n)      Indebtedness of any Loan Party or any Subsidiary thereof not otherwise permitted pursuant to this Section 7.03 in an aggregate principal amount not to exceed $750,000 at any time outstanding.

For purposes of determining compliance with this  Section 7.03 , all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03 .  Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly

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permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.

Section 7.04       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, except that:

(a)      any Subsidiary may merge with (i) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries; provided that when any Subsidiary that is a Loan Party is merging with another Subsidiary, a Loan Party shall be the continuing or surviving Person;

(b)      any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party;

(c)      any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Subsidiary; provided  that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Subsidiary in accordance with   Section 7.02 and Section 7.03 , respectively;

(d)      so long as no Default exists or would result therefrom, any Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02 ;   provided that the continuing or surviving Person shall be a Subsidiary, which together with each of its Subsidiaries, shall have complied with the Collateral and Guarantee Requirement and the requirements of Section 6.11 ; and

(e)      any Subsidiary Transaction.

Section 7.05       Dispositions .  Make any Disposition or enter into any agreement to make any Disposition, except:

(a)      Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries;

(b)      Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any applications for registration of any immaterial Intellectual Property to lapse or go abandoned in the ordinary course of business);

(c)      Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly

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purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);

(d)      Dispositions of property to the Borrower or a 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 7.02 ;

(e)      Dispositions permitted by Section 7.02 ,   Section 7.04 ,   Section 7.06 and Section 7.13 and Liens permitted by Section 7.01 ;

(f)      Dispositions in the ordinary course of business of Cash and Cash Equivalents;

(g)      the unwinding of any Swap Contract pursuant to its terms;

(h)      Dispositions, the proceeds of which (i) are less than $375,000 with respect to any single Disposition or series of related Dispositions, and (ii) when aggregated with the proceeds of all other Dispositions made within the same Fiscal Year, are less than $500,000; provided (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company (or similar governing body)), (2) no less than 100% thereof shall be paid in Cash, and (3) the Net Cash Proceeds thereof shall be applied in accordance with the requirements of Section 2.02(b)(ii) ;  

(i)      Dispositions resulting from Casualty Events; provided that the Net Cash Proceeds thereof shall be applied in accordance with the requirements of Section 2.02(b)(iii) ;  

(j)      Disposition of the manufacturing facility owned by Braden Manufacturing SA de CV; and

(k)      any Subsidiary Transaction. 

Section 7.06       Restricted Payments .  Declare or make, directly or indirectly, any Restricted Payment, except:

(a)      to the extent constituting Restricted Payments, the Borrower and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 ,   Section 7.04 ,   Section 7.06 or Section 7.08 ;

(b)      the Subsidiaries may make Restricted Payments to Borrower; 

(c)      the Subsidiaries of the Borrower may make direct or indirect Restricted Payments to the Loan Parties;

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(d)      the Borrower or any Subsidiary thereof may pay dividends in shares of its own Qualified Equity Interests; and

(e)      the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries.

Section 7.07       Change in Nature of Business .  Engage in any line of business other than those lines of business conducted by the Borrower and its Subsidiaries on the date hereof or any business reasonably related or ancillary thereto.

Section 7.08       Transactions with Affiliates .  Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than:

(a)      transactions on terms substantially as favorable to the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s‑length transaction with a Person other than an Affiliate;

(b)      the Transaction, including entering into this Agreement, the Loan Documents, together with all agreements ancillary hereto or thereto;

(c)      the repurchase or redemption of capital stock or other Equity Interest of Borrower or its Subsidiaries held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Borrower or its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service in an aggregate principal amount not to exceed $250,000 during any Fiscal Year of the Borrower;

(d)      loans and other transactions by and among the Borrower and/or one or more Subsidiaries to the extent permitted under this Article VII ;  

(e)      an agreement to provide shared management services between any Loan Party and a Subsidiary that is not a Loan Party;

(f)      customary compensation and indemnification of, and other employment arrangements (including equity incentive plans, employee benefit plans and arrangements, issuance of Equity Interests, payment of bonuses and stock option plans) with, directors, officers and employees of Borrower or any Subsidiary in the ordinary course of business;

(g)      Restricted Payments permitted under Section 7.06 ;

(h)      other transactions with any Permitted Servicing Joint Venture in the ordinary course of business on terms as favorable as would be obtained by it on a comparable arm’s‑length transaction with an independent, unrelated third party and, with

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respect to, material transactions with any Permitted Servicing Joint Venture, as determined in good faith by the board of directors (or equivalent governing body) of the Borrower; and

(i)       the provision of goods or engineering, design, procurement, project management, quality management or other services by the Borrower or any Subsidiary to the Borrower or any other Subsidiary pursuant to purchase orders issued in the ordinary course of business in connection with third party contracts.

Section 7.09       Prepayments of Certain Indebtedness; Modifications of Certain Indebtedness and Material Agreements .  Except in each case as otherwise expressly permitted by this Agreement:

(a)      directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness prior to its scheduled maturity, other than (i) the Obligations, (ii) Indebtedness secured by a Permitted Lien if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Section 7.05 and (iii) the Indebtedness under the ABN AMRO Facility solely to the extent repaid solely by the primary obligor thereunder from cash on the balance sheet; and

(b)      (i) [reserved], (ii) amend, modify or otherwise change, or agree to any amendment, modification or change of the terms of the ABN AMRO Facility (including, without limitation, any amendment or modification to shorten the maturity date thereunder) if such amendment, termination or waiver would be materially adverse to the Lenders or (iii) amend or permit any amendments to, or terminate or waive any provision of, any Material Agreement if such amendment, termination, or waiver would be materially adverse to the Lenders.

Section 7.10       Negative Pledge .  Enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist, (a) any agreement prohibiting or conditioning the creation or assumption of any Lien upon any of its property or assets except (i) agreements in favor of the Collateral Agent or (ii) prohibitions or conditions under (w) any Capital Lease permitted by Section 7.03(c) solely to the extent that such Capital Lease prohibits a Lien on the property subject thereto, (x) by reason of customary provisions restricting pledges, assignments, subletting or other transfers contained in leases, licenses and similar agreements entered into in the ordinary course of business (provided that such restrictions are limited to the property or assets subject to such leases, licenses or similar agreements, as the case may be, (y) [reserved] or (z) under the ABN AMRO Facility or (b) any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Indebtedness owed to, make loans or advances to, or otherwise transfer assets to or make Investments in, the Borrower or any of its Subsidiaries of the Borrower (whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) the Loan Documents or (ii) under the ABN AMRO Facility.

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Section 7.11       Amendments to Constitutive Documents .  Amend, or permit any of its Subsidiaries to amend, its certificate of incorporation or bylaws or other constitutive documents in a manner materially adverse to the interests of the Lenders.

Section 7.12       Financial Covenants

(a)       Total Leverage Ratio .  Commencing on December 31, 2017, permit the Total Leverage Ratio for the Borrower and its Subsidiaries on a consolidated basis for any Test Period ending on and as of the last day of a fiscal quarter set forth below to be greater than the ratio set forth opposite such Test Period below:

 

 

Fiscal Quarter Ending

Total Leverage Ratio

December 31, 2017

10.75:1.00

March 31, 2018

7.25:1.00

June 30, 2018

4.20:1.00

September 30, 2018

3.25:1.00

December 31, 2018

3.25:1.00

March 31, 2019

2.35:1.00

June 30, 2019

September 30, 2019

December 31, 2019

March 31, 2020

June 30, 2020

September 30, 2020

December 31, 2020

March 31, 2021

June 30, 2021

September 30, 2021

2.00:1.00

1.75:1.00

1.75:1.00

1.50:1.00

1.50:1.00

1.50:1.00

1.50:1.00

1.50:1.00

1.50:1.00

1.50:1.00

 

Notwithstanding any of the foregoing to the contrary, the Borrower shall not be required to be in compliance with the Total Leverage Ratio for the Test Period ending on December 31, 2017 in the event that the 2018 Amortization Payment is paid prior to March 31, 2018.

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(b)       Fixed Charge Coverage Ratio .  Commencing on March 31, 2018, permit the Fixed Charge Coverage Ratio for the Borrower and its Subsidiaries on a consolidated basis for any Test Period ending on and as of the last day of a fiscal quarter set forth below to be less than the ratio set forth opposite such Test Period below:

Fiscal Quarter Ending

Fixed Charge Coverage Ratio

March 31, 2018

0.40:1.00

June 30, 2018

1.00:1.00

September 30, 2018

1.50:1.00

December 31, 2018

1.50:1.00

March 31, 2019

1.75:1.00

June 30, 2019

September 30, 2019

December 31, 2019

March 31, 2020

June 30, 2020

September 30, 2020

December 31, 2020

March 31, 2021

June 30, 2021

September 30, 2021

2.00:1.00

2.25:1.00

2.50:1.00

2.75:1.00

3.00:1.00

3.00:1.00

3.00:1.00

3.00:1.00

3.00:1.00

3.00:1.00

 

(c)       Maximum Capital Expenditures .  Commencing on December 31, 2017, permit Capital Expenditures for the Borrower and its Subsidiaries on a consolidated basis for any Test Period ending on and as of the last day of a fiscal quarter set forth below to be more than the ratio set forth opposite such Test Period below:

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Fiscal Quarter Ending

Maximum Capital Expenditures

December 31, 2017

$4,750,000

March 31, 2018

$4,750,000

June 30, 2018

$4,500,000

September 30, 2018

$3,500,000

December 31, 2018

$4,000,000

March 31, 2019

$4,000,000

June 30, 2019

September 30, 2019

December 31, 2019

March 31, 2020

June 30, 2020

September 30, 2020

December 31, 2020

March 31, 2021

June 30, 2021

September 30, 2021

$4,000,000

$4,000,000

$4,000,000

$4,000,000

$4,000,000

$4,000,000

$4,000,000

$4,000,000

$4,000,000

$4,000,000

 

(d)       [Reserved] .

(e)       Minimum Liquidity .  During the period commencing on the Closing Date through and until the earlier of the date of the (i) payment of the 2018 Amortization Payment and (ii) final closing of an Initial Subsidiary Transaction, permit Liquidity reflected on the balance sheet of the Borrower and its Domestic Subsidiaries on a consolidated basis, as of the last day of each month to be less than $2,500,000.

Section 7.13       Sale Leasebacks . No Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which such Loan Party (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Company or any of its Subsidiaries) or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by such Loan Party to any Person (other than the Company or any of its Subsidiaries) in connection with such lease, except for any Sale Leaseback set forth on Schedule 7.13 .

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Section 7.14       Accounting Changes .  Make any change in (a) accounting policies or reporting practices, except as required by GAAP or (b) Fiscal Year.

Section 7.15       OFAC .  (a) Become a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) engage in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner that violates Section 2 of such executive order or (c) become a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to blocking or specific trade restrictions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or implementing executive order.

Section 7.16       Braden Holdings, LLC   As to Braden Holdings, LLC, engage in any business or activity other than (i) the ownership of 99.998% of the outstanding Equity Interests in GPEG Mexico Distributing, SA de CV, (ii) maintaining its corporate existence, (iii) the performance of obligations under the Loan Documents, and (iv) activities incidental to the businesses or activities described in clauses (i)‑(iii).

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

Section 8.01       Events of Default .  Any of the following events referred to in any of clauses (a)  through (l) inclusive of this Section 8.01 shall constitute an “ Event of Default ”:

(a)       Non‑Payment .  Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or (ii) within three (3) Business Days after the same becomes due, any interest on any Loan or any other amount payable hereunder or with respect to any other Loan Document; or

(b)       Specific Covenants .  The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01(a) ,   (b) and (c) ,   Section 6.03 ,   Section 6.05 (with respect to such Person's legal existence), Section 6.08 ,   Section 6.11 ,   Section 6.12 ,   Section 6.14 ,   Section 6.16 ,   Section 6.18 ,   Section 6.19 or Article VII ; or

(c)       Other Defaults .  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(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 after receipt by the Borrower of written notice thereof by the Administrative Agent or the Required Lenders; or

(d)       Representations and Warranties .  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document required to be delivered in

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connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

(e)       Cross‑Default .  Any Loan Party or any Subsidiary (i) fails to make any payment beyond the applicable grace period with respect thereto, if any (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder) having an aggregate principal amount of not less than the Threshold Amount (including, for the avoidance of doubt, the ABN AMRO Facility), or (ii) fails to observe or perform any other agreement or condition relating to any such Indebtedness, 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 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 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

(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 a general assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, interim receiver, receiver and manager, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, interim receiver, receiver and manager, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver 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 Subsidiary 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 in respect of a claim in excess of the Threshold Amount is issued or levied against all or any material part of the property of the Loan Parties, taken as a whole, and is not released, vacated, stayed or fully bonded within sixty (60) days after its issue or levy; or

(h)       Judgments .  There is entered against any Loan Party or any Subsidiary a final judgment or order 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 has been notified of such judgment or order and does not deny or fail to confirm coverage) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or

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(i)        ERISA .  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in liability of any Loan Party under Title IV of ERISA in an aggregate amount which would reasonably be expected to exceed the Threshold Amount, (ii) any Loan Party, Subsidiary 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 which would reasonably be expected to exceed the Threshold Amount, or (iii) any Loan Party, Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual contributions of the Loan Parties, the Subsidiaries and the ERISA Affiliates to all Multiemployer Plans that are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such reorganization or termination occurs by an aggregate amount which would reasonably be expected to exceed the Threshold Amount; or

(j)        Invalidity of Loan Documents .  Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments), purports to revoke or rescind any Loan Document or asserts that any Guarantee, Collateral Document or subordination provision in respect of any Indebtedness in excess (in the aggregate) of the Threshold Amount is invalid or unenforceable; or

(k)       Change of Control .   There occurs any Change of Control; or

(l)       Liens .  Any Collateral Document or financing statement after delivery thereof pursuant to Section 4.01 ,   Section 6.11 or Section 6.13 and, to the extent applicable, timely and proper filing thereof with applicable authorities, shall for any reason cease to create a valid and perfected first priority lien on and security interest in the Collateral having an aggregate fair market value in excess of $250,000 purported to be covered thereby, except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent and the Collateral Agent to maintain possession of certificates actually received by it representing securities pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements in the applicable jurisdictions as required under the Uniform Commercial Code to continue the perfection of such security interest or the equivalent in the applicable jurisdiction.

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Section 8.02       Remedies Upon Event of Default .  If any Event of Default occurs and is continuing, the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:

(a)      declare the commitment (if any) of each Lender to make Loans to be terminated, whereupon such commitments and obligations shall be terminated;

(b)      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;

(c)      set-off against any outstanding Obligations amounts held for the account of the Loan Parties as cash collateral or in the accounts of any Loan Party maintained by or with the Administrative Agent, any Lender or their respective Affiliates; and

(d)      exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;

provided that upon the occurrence of an Event of Default under Sections 8.01(f) and (g) , the obligation of each Lender to make Loans 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 without further act of any Agent or any Lender.

Section 8.03       Application of Funds .  If the circumstances described in Section 2.08(g)  have occurred, or after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable), including in any proceeding under any Debtor Relief Law, 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 (other than principal and interest, but including Attorney Costs payable under Section 10.04 and Section 10.05 and amounts payable under Article III ) payable to each Agent in its capacity as such;

Second , to payment of that portion of the Obligations constituting the Upfront Fee and any accrued but uncapitalized Unpaid PIK Fee Amounts, ratably among the Lenders in proportion to the respective amounts described in this clause Second payable to them;

Third , to payment of that portion of the Obligations constituting indemnities and other amounts (other than principal and interest) payable to the Lenders (including amounts payable under Article III ), ratably among them in proportion to the amounts described in this clause Third payable to them;

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Fourth , to payment of that portion of the Obligations constituting accrued, unpaid interest (including, but not limited to, Default Rate interest, accrued but uncapitalized PIK Interest and post‑petition interest) and the Prepayment Premium, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth payable to them;

Fifth , to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; 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.

Section 8.04       Other Amounts Due .  In the event of repayment of the Obligations at any time prior to the Maturity Date, for any reason, including (i) upon an acceleration of the Obligations under this Agreement whether pursuant to the actions of the Required Lenders or automatically, (ii) foreclosure and sale of the Collateral, (iii) sale of the Collateral in any proceeding under any Debtor Relief Law or (iv) pursuant to any restructuring, reorganization or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure or arrangement in any proceeding under any Debtor Relief Law, then in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Administrative Agent and the Lenders or profits lost by the Administrative Agent and the Lenders as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimate and calculation of the lost profits or damages of the Administrative Agent and the Lenders, there shall be an amount due and payable to the Lenders equal to the full amount of (i) the Prepayment Premium that would have been payable pursuant to Section 2.02(a)(ii) hereof as if the Obligations were voluntarily repaid upon such repayment date and (ii) the Upfront Fee, plus all accrued and uncapitalized Upfront Fee PIK Amounts.

ARTICLE IX

ADMINISTRATIVE AGENT AND OTHER AGENTS

Section 9.01       Appointment and Authorization of Agents .  (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained in this Agreement or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan

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Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

Notwithstanding any provision contained in this Agreement providing for any action in the Administrative Agent’s reasonable discretion or approval of any action or matter in the Administrative Agent’s reasonable satisfaction, the Administrative Agent 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.  The Administrative Agent 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 the Borrower, any other Loan Party or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any other Agent‑Related Person in any capacity.

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 the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

(b)       The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest, charge or other Lien created by the Collateral Documents for and on behalf of or on trust for) such Lender 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 reasonably 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 9.02 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 IX (including  Section 9.07 , as though such co‑agents, sub‑agents

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and attorneys‑in‑fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. 

Section 9.02       Delegation of Duties .  The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through Affiliates, agents, employees or attorneys‑in‑fact, such sub‑agents as shall be deemed necessary by the Administrative Agent, and shall be entitled to advice of counsel, both internal and external, and other consultants or experts concerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub‑agent or attorney‑in‑fact that it selects in the absence of gross negligence or willful misconduct.

Section 9.03       Liability of Agents .  No Agent‑Related Person shall (a) be liable to any Lender for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender or Participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder.  No Agent‑Related Person shall be under any obligation to any Lender or Participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof.

Section 9.04       Reliance by Agents .  (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by such Agent.  Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of

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the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders.

(b)      For purposes of determining compliance with the conditions specified in Section 4.01 , 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 Closing Date specifying its objection thereto.

Section 9.05       Notice of Default .  The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default”.  The Administrative Agent will promptly notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VIII ;   provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.

Section 9.06       Credit Decision; Disclosure of Information by Agents .  Each Lender acknowledges that no Agent‑Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent‑Related Person to any Lender as to any matter, including whether Agent‑Related Persons have disclosed material information in their possession.  Each Lender represents to each Agent that it has, independently and without reliance upon any Agent‑Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower and the other Loan Parties hereunder.  Each Lender also represents that it will, independently and without reliance upon any Agent‑Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and the other Loan Parties.  Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other

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condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent‑Related Person.

Section 9.07       Indemnification of Agents .  Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent‑Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent‑Related Person from and against any and all Indemnified Liabilities to the extent incurred by it; provided that no Lender shall be liable for the payment to any Agent‑Related Person of any portion of such Indemnified Liabilities to the extent resulting from such Agent‑Related Person’s own gross negligence or willful misconduct, as determined by the final non‑appealable judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07 .  In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person.  Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out‑of‑pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower; provided that such reimbursement by the Lenders shall not affect the Borrower’s continuing reimbursement obligations with respect thereto, if any.  The undertaking in this Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent.

Section 9.08       Agents in their Individual Capacities .  Each Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though such Agent were not an Agent hereunder and without notice to or consent of the Lenders.  The Lenders acknowledge that, pursuant to such activities, each Agent or its Affiliates may receive information regarding any Loan Party or any Affiliate of a Loan Party (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that no Agent shall be under any obligation to provide such information to them.  With respect to its Loans, each Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not an Agent, and the terms “Lender” and “Lenders” include such Agent in its individual capacity.

Section 9.09       Successor Agents .  The Administrative Agent may resign as the Administrative Agent upon thirty (30) days’ notice to the Lenders and the Borrower.  If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint a

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successor agent for the Lenders, which appointment of a successor agent shall require the consent of the Borrower at all times other than during the existence of an Event of Default under Section 8.01(a) ,   (f) or (g) (which consent of the Borrower shall not be unreasonably withheld or delayed).  If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and, if no Default has occurred and is continuing, the Borrower, a successor agent from among the Lenders.  Upon the acceptance of its appointment as successor agent hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent”, shall mean such successor administrative agent and/or supplemental administrative agent, as the case may be, and the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent shall be terminated.  After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX and Section 10.04 and Section 10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.  If no successor agent has accepted appointment as the Administrative Agent by the date which is thirty (30) days following the retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.  Lenders assuming the role of Administrative Agent as specified in the immediately preceding sentence shall assume the rights and obligations of the Administrative Agent (including the indemnification provisions set forth in Section 9.07 ) as if each such Lender were the Administrative Agent.  Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably request, in order to (a) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (b) otherwise ensure that the Collateral and Guarantee Requirement is satisfied, the successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents.

Section 9.10       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 shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a)      to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the

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reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.05 ,   Section 10.04 and Section 10.05 or otherwise hereunder) allowed in such judicial proceeding; and

(b)      to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and

(c)      any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender 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, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due to the Administrative Agent under Section 2.05 ,   Section 10.04 and Section 10.05 or otherwise hereunder.

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 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.

Section 9.11       Release of Collateral and Guaranty .  The Lenders irrevocably agree, authorize and direct the Administrative Agent and Collateral Agent:

(a)      to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full in cash of all Obligations (other than (A) contingent indemnification obligations not yet accrued and payable and (B) any other obligation (including a guarantee) that is contingent in nature) (the date upon which the conditions in this Section 9.11(a)(i) shall have been satisfied, the “ Termination Date ”), (ii) upon any permitted sale, lease, transfer or other disposition of any item of Collateral of any Loan Party (including, without limitation, as a result of the sale, in accordance with the terms of the Loan Documents, of the Loan Party that owns such Collateral) in accordance with the terms of the Loan Documents, (iii) subject to Section 10.01 , if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders, or (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (b) below;

(b)      to release any Guarantor from its obligations under the Guaranty upon (i) in the case of any Subsidiary, such Person ceasing to be subject to the Collateral and Guarantee Requirement and  Section 6.11 as a result of a transaction permitted hereunder (as certified by a Responsible Officer) and the Borrower notifying the Administrative Agent in writing that it wishes such Guarantor to be released from its obligations under the Guaranty or (ii) the Termination Date; and

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(c)      to subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 7.01(h) and (i) .

The Collateral Agent will, at the Borrower’s expense, execute and deliver to such Loan Party such documents as such Loan Party may reasonably request to evidence the release of Collateral pursuant to this Section 9.11 from the assignment and security interest granted under the Collateral Documents (or the release of the Guarantor from its Guarantee of the Obligations) in accordance with the terms of the Loan Documents ( provided that the Borrower shall have delivered to the Collateral Agent a certificate of a Responsible Officer certifying that such transaction has been consummated in compliance with the Loan Documents).  Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property in accordance with this Section 9.11 .

ARTICLE X

MISCELLANEOUS

Section 10.01     Amendments, Etc.  No amendment or waiver of any provision of this Agreement, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided ,   however , that:

(a)      no amendment, waiver or consent shall, unless in writing and signed by all of the Lenders, do any of the following at any time:

(i)      change the number of Lenders or the percentage of (x) the Commitments or (y) the aggregate unpaid principal amount of Loans that, in each case, shall be required for the Lenders or any of them to take any action hereunder (including pursuant to any change to the definition of “ Required Lenders ”),

(ii)     release one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the Obligations owing to the Agents and the Lenders under the Guaranties) if such release or limitation is in respect of all or substantially all of the value represented by the Guaranties to the Lenders,

(iii)    release, or subordinate the Administrative Agent’s Liens in, all or substantially all of the Collateral in any transaction or series of related transactions (other than in connection with any sale of Collateral permitted herein), or

(iv)    amend any provision of this Section 10.01 ;

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(b)      no amendment, waiver or consent shall, unless in writing and signed by each Lender specified below for such amendment, waiver or consent:

(i)      increase the Commitments of a Lender without the consent of such Lender;

(ii)     reduce the principal of, or stated rate of interest on, or stated premium payable on, the Loans owed to a Lender or any fees or other amounts stated to be payable hereunder or under the other Loan Documents to such Lender without the consent of such Lender; provided if the Required Lenders agree to waive any Event of Default and such waiver is effective in accordance with this Section 10.01 or if the Required Lenders agree to change any financial definitions that would reduce the stated rate of interest or any fees or other non‑principal amounts stated to be payable hereunder or under the other Loan Documents pursuant to any amendment, waiver or consent not being effected in order to reduce the stated rate of interest or such fees or other amounts, then only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the Default Rate in connection with such waived Event of Default or reduce the stated rate of interest or such fees in connection with such amendment, waiver or consent described in this proviso to clause (b)(ii) , as applicable; or

(iii)    postpone any date scheduled for any payment of principal of, or interest on, the Loans, any date scheduled for payment or for any date fixed for any payment of fees hereunder in each case payable to a Lender without the consent of such Lender; or

(iv)    change the order of application of prepayment of Loans from the application thereof set forth in the applicable provisions of Section 2.02(b)(vii) or Section 8.03 in any manner that adversely affects the Lenders under the Facility without the consent of holders of a majority of the Commitments or Loans outstanding under the Facility or otherwise change any provision requiring the pro rata distributions hereunder among the Lenders without all Lenders’ consent; or

(v)     modify Section 2.09 without the consent of each Lender directly and adversely affected thereby;

provided   further that no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Lenders required above to take such action, affect the rights or duties of such Agent under this Agreement or the other Loan Documents.

Notwithstanding anything to the contrary contained in this Section 10.01 , this Agreement and any other Loan Document may be amended, supplemented and waived with the consent of the Administrative Agent and the Borrower without the need to obtain the consent of any other Lender if such amendment, supplement or waiver is delivered in order to (i) cure ambiguities, omissions, mistakes or defects, (ii) to cause any Collateral Document to be

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consistent with this Agreement and the other Loan Documents or (iii) amend the Financial Covenants in accordance with Section 1.03(b) .

Section 10.02     Notices and Other Communications; Facsimile and Electronic Copies .  (a)  General .  Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission) (and, as to service of process, only in writing and in accordance with applicable law) and, to the extent set forth in Section 10.02(e) , in an electronic medium and delivered as set forth in Section 10.02(e) .  All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or 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:

(i)      if to the Borrower or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties from time to time; and

(ii)     if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a written notice to the Borrower and the Administrative Agent.

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; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(b) ), when delivered; provided that notices and other communications to the Borrower and the Administrative Agent pursuant to Article II shall not be effective until actually received by such Person during the Person’s normal business hours.  In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.

(b)       Effectiveness of Facsimile Documents and Signatures .  Loan Documents may be transmitted and/or signed by facsimile or other electronic transmission (including a .pdf or .tif copy); provided that original copies are delivered promptly thereafter (it being understood that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by facsimile or electronic transmission).

(c)       Reliance by Agents and Lenders .  The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices 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 written confirmation

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thereof.  The Borrower shall indemnify each Agent‑Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence or willful misconduct by such Agent‑Related Person or such Lender.  All telephonic notices to the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

(d)       Notice to other Loan Parties .  The Borrower agrees that notices to be given to any other Loan Party under this Agreement or any other Loan Document may be given to the Borrower in accordance with the provisions of this Section 10.02 with the same effect as if given to such other Loan Party in accordance with the terms hereunder or thereunder.

(e)      The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (ii) provides notice of any Default or Event of Default under this Agreement or (iii) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other Credit Extension hereunder (all such non‑excluded communications being referred to herein collectively as “ Communications ”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent to an electronic mail address specified by the Administrative Agent to the Borrower.  In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent. 

(f)      The Administrative Agent agrees that the receipt in accordance with Section 10.02 of the Communications by the Administrative Agent at its e‑mail address set forth on Schedule 10.02 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.  Each Lender agrees (i) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e‑mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e‑mail address.  Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

Section 10.03     No Waiver; Cumulative Remedies .  No failure by any Lender 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.

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Section 10.04     Costs and Expenses .  The Borrower agrees (a) to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable and documented out‑of‑pocket costs and expenses incurred before, on or after the Closing Date in connection with the preparation, execution, delivery and administration of this Agreement and the other Loan Documents, including all Attorney Costs of counsel to the Administrative Agent and the Collateral Agent, and, to the extent reasonably necessary, local counsel in any relevant jurisdiction, (b) to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable and documented out‑of‑pocket costs and expenses incurred after the Closing Date in connection with any amendment, waiver, consent or other modification of the provisions hereof and thereof requested by the Borrower or negotiated in consultation with Borrower (in each case, whether or not the transactions contemplated thereby are consummated), including all Attorney Costs of counsel to the Administrative Agent and the Collateral Agent, and, to the extent reasonably necessary, local counsel in any relevant jurisdiction and (c) after the occurrence of an Event of Default, to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable and documented out‑of‑pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all costs and expenses incurred in connection with any workout or restructuring in respect of the Loans, all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and counsel to the Administrative Agent and the Collateral Agent, and, to the extent reasonably necessary, local counsel in any relevant jurisdiction).  The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other reasonable and documented out‑of‑pocket expenses incurred by any Agent.  The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations.  All amounts due under this Section 10.04 shall be paid within ten (10) Business Days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail.  If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.

Section 10.05     Indemnification by the Borrower .  (a) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless each Agent‑Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys‑in‑fact (collectively the “ Indemnitees ”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged violation of Environmental Law, presence or Release of Hazardous Materials on, at, under or from any property currently or

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formerly owned or operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental Action or Environmental Liability related to the Borrower, any Subsidiary or any other Loan Party, 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 (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv) , a “ Proceeding ”) (all the foregoing described in clauses (i) to (iv), collectively, the “ Indemnified Liabilities ”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnified Party, a third party or by the Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnified Party is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non‑appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such.  No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document.  All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after written demand therefor; provided , that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof.  The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

(b)      The Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, the Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a) .  The Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non‑disparagement provisions.

(c)      In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against the Borrower or any of its

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Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, the Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Section 10.06     Payments Set Aside .  To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent 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 such Agent 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 severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any 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 Federal Funds Rate.

Section 10.07       Successors and Assigns .  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that, except as otherwise provided herein (including without limitation as permitted under Section 7.04 ), the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the requirements of Section 10.07(b) , (ii) by way of participation in accordance with the provisions of Section 10.07(d) , (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(f)  or (iv) to an SPC in accordance with the provisions of Section 10.07(g)  (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 Section 10.07(d)  and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)      (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees (each, an “ Assignee ”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent in each case not to be unreasonably withheld or delayed) of the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Loan to another Lender, an Affiliate of a Lender or an Approved Fund.

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(ii)      Assignments shall be subject to the following additional conditions:

(A)      except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or 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) shall not be less than $100,000 unless the Administrative Agent otherwise consents; provided that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;

(B)      the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption; and

(C)      the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any documentation required by Section 3.01(g) .

From and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be party to this Agreement as a Lender with respect to the interest assigned and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement in addition to any rights and obligations otherwise held by such assignee as 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 ,   3.02 ,   3.04 ,   3.05 (or any other increased costs protection provision), 10.04 and 10.05 ).  Upon request, and the surrender by the assigning Lender of its Note (if any), 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 clause (b)  shall not be an effective assignment hereunder.

(c)      Each Lender, acting solely for this purpose as an agent of Borrower, shall maintain at one of its offices a register for the recordation of the name and address of any assignee of any Lender and the outstanding principal amount (and stated interest) of the Loans owing thereto (the “ Register ”). The entries in the Register shall be conclusive, absent manifest error, and Borrower shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as the “Lender” hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by Borrower, at any reasonable time and from time to time upon reasonable prior notice.  Notwithstanding anything herein to the contrary, any assignment of the Loans shall be effective only upon appropriate entries with respect thereto being made in the Register.

(d)      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 (x) a natural person and (y) the Borrower or any of its Affiliates) (each, a “ Participant ”) in all or a portion of

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such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the 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 Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; 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 Section  10.01 (a) , or Section  10.01 (b) that directly affects such Participant.  Subject to Section 10.07(e) , the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 (subject to the requirements of Section 3.01 , including Section 3.01(e) and Section 3.01(f) ), 3.04 and 3.05 (through the applicable Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b) .  To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.09 as though it were a Lender.  Any Lender that sells participations shall maintain a register meeting the requirements of Treasury Regulation Section 5f.103‑1(c) (or any successor regulation), on which it enters the name and the address of each Participant and the principal amounts of each Participant’s participation interest in the Commitments and/or Loans (or other rights or obligations) held by it (the “ Participant Register ”).  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 interest as the owner thereof for all purposes notwithstanding any notice to the contrary.  In maintaining the Participant Register, such Lender shall be acting as the agent of the Borrower solely for purposes of Treasury Regulation Section 5f.103‑1(c) and undertakes no other duty, responsibility or obligation to the Borrower (including, without limitation, in no event shall such Lender be considered a fiduciary of the Borrower for any purpose).  In addition to maintaining the Participant Register, such Lender shall, upon request, show the Participant Register to the Borrower.

(e)      A Participant shall not be entitled to receive any greater payment under Section 3.01 ,   3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.

(f)      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 or central bank having jurisdiction over such Lender; 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.

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(g)      Notwithstanding anything to the contrary contained herein, any Lender (a “ Granting Lender ”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “ SPC ”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section 3.01 ,   3.04 or 3.05 ), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable and such liability shall remain with the Granting Lender, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder.  The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non‑public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee Obligation or credit or liquidity enhancement to such SPC.

(h)      Notwithstanding anything to the contrary contained herein, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07 , (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. 

Section 10.08       Confidentiality .  Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information and to not use or disclose such information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ directors, officers, employees, trustees, investment advisors and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any Governmental Authority or examiner regulating any Lender; (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) to any pledgee referred to in Section 10.07(f)  or Section 10.07(h) , Eligible Assignee of or Participant in,

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or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement (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); (f) with the written consent of the Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08 by the disclosing party; (h) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender); (i) to the extent not known by it to consist of non‑public information, (j) for purposes of establishing a “due diligence” defense or (k) 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.  In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions.  For the purposes of this Section 10.08 , “ Information ” means all information received from any Loan Party or its Affiliates or its Affiliates’ directors, officers, employees, trustees, investment advisors or agents, relating to the Borrower or its Subsidiaries or their business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08 , including, without limitation, information delivered pursuant to Section 6.01 ,   6.02 or 6.03 hereof.

Section 10.09       Setoff .  In addition to any rights and remedies of the Agents and the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each Agent and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) 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) at any time held by, and other Indebtedness at any time owing by, such Lender and its Affiliates or such Agent and its Affiliates, as the case may be, to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates or such Agent and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate thereof shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness.  Each Lender and Agent agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender or Agent, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application.  The rights of each Agent and each under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that such Agent and such Lender may have.

Section 10.10       Counterparts .  This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all

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of which together shall constitute one and the same instrument.  Delivery by facsimile transmission or other electronic transmission (including a .pdf or .tif copy) of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document; provided that original signatures shall be promptly delivered thereafter, it being understood that that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by facsimile or electronic transmission.

Section 10.11       Integration .  This Agreement 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 or inconsistency between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict or inconsistency with this Agreement.  Each Loan 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.

Section 10.12       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 each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any 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.

Section 10.13       Severability .  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 10.14       GOVERNING LAW .  (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (EXCEPT, WITH RESPECT TO ANY OTHER LOAN DOCUMENT, AS OTHERWISE EXPRESSLY PROVIDED THEREIN).

(b)      ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN

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NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  THE BORROWER, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.

Section 10.15       WAIVER OF RIGHT TO TRIAL BY JURY .  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.15 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 10.16       Binding Effect .  This Agreement shall become effective when it shall have been executed by the Borrower, the Administrative Agent and the Collateral Agent, and the Administrative Agent shall have been notified by each Lender that each such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each such Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.

Section 10.17       Lender Action .  Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self‑help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, without the prior written consent of the Administrative Agent.  The provision of this Section 10.17 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.

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Section 10.18       PATRIOT Act .  Each Lender hereby notifies the Borrower that pursuant to the requirements of the PATRIOT 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 to identify the Borrower in accordance with the PATRIOT Act.  The Borrower agrees to provide, and to cause each other Loan Party to provide, such information promptly upon request.

Section 10.19       No Advisory or Fiduciary Responsibility .  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges and agrees that it has informed its Subsidiaries, that:  (i) (A) no fiduciary, advisory or agency relationship between the Borrower and its Subsidiaries and any Agent or any Lender is intended to be or has been created in respect of any of the transactions contemplated hereby and by the other Loan Documents, irrespective of whether any Agent or any Lender has advised or is advising the Borrower and its Subsidiaries on other matters, (B) the arranging and other services regarding this Agreement provided by the Agents and the Lenders are arm’s‑length commercial transactions between the Borrower and its Subsidiaries, on the one hand, and the Agents and the Lenders, on the other hand, (C) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (D) 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; (ii) (A) the Agents and the Lenders each is and has been acting solely as a principal and, except as may otherwise be 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 its Affiliates, or any other Person and (B) no Agent 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 (iii) the Agents 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 no Agent or Lender has any obligation to disclose any of such interests and transactions to the Borrower or any of its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Agents and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

[Remainder of Page Intentionally Blank]

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

GLOBAL POWER EQUIPMENT GROUP INC.,

 

as Borrower,

 

 

 

By:

/s/ Craig Holmes

 

Name: Craig Holmes

 

Title: Chief Financial Officer

 

[Signature page to Senior Secured Credit Agreement]


 

 

 

 

 

Acknowledged and agreed:

 

 

 

GLOBAL POWER PROFESSIONAL SERVICES INC.

 

BRADEN CONSTRUCTION SERVICES, INC.

 

GLOBAL POWER TECHNICAL SERVICES, INC.

 

WILLIAMS GLOBAL SERVICES, INC.

 

WILLIAMS INDUSTRIAL SERVICES GROUP, L.L.C.

 

WILLIAMS INDUSTRIAL SERVICES, LLC

 

WILLIAMS SPECIALTY SERVICES, LLC

 

WILLIAMS PLANT SERVICES, LLC

 

KOONTZ-WAGNER CUSTOM CONTROLS HOLDINGS LLC

 

CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC

 

BRADEN MANUFACTURING, L.L.C.

 

each as Guarantor

 

 

 

By:

/s/ Erin Gonzalez

 

Name: Erin Gonzalez

 

Title: Vice President & Treasurer

 

 

 

BRADEN HOLDINGS, LLC

 

GPEG, LLC

 

each as Guarantor

 

 

 

By:

/s/ Erin Gonzalez

 

Name: Erin Gonzalez

 

Title: President and Treasurer

 

 

 

STEAM ENTERPRISES, L.L.C.

 

as Guarantor

 

 

 

By:

/s/ Tracy D. Pagliara

 

Name: Tracy D. Pagliara

 

Title: Vice President and Secretary

 

[Signature page to Senior Secured Credit Agreement]


 

 

 

 

 

 

CENTRE LANE PARTNERS MASTER CREDIT FUND II, L.P., as Administrative Agent and Collateral Agent, and as a Lender

 

 

 

 

 

By:

/s/ Luke Gosselin

 

 

Name: Luke Gosselin

 

 

Title: Managing Director

 

[Signature page to Senior Secured Credit Agreement]


 

 

 

 

 

 

CENTRE LANE PARTNERS IV, L.P., as Lender

 

 

 

 

 

By:

/s/Quinn Morgan

 

 

Name: Quinn Morgan

 

 

Title: Managing Director

 

[Signature page to Senior Secured Credit Agreement]


Exhibit 10.52

 

Execution Copy

 

FIRST AMENDMENT TO

SENIOR SECURED CREDIT AGREEMENT

 

This FIRST AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT, dated as of August 17, 2017 (this “ First Amendment ”), is entered into by and among Global Power Equipment Group Inc. (“ Borrower ”), each financial institution from time to time party hereto as lender (each, a “ Lender ” and collectively, the “ Lenders ”), and CENTRE LANE PARTNERS MASTER CREDIT FUND II, L.P. , a Delaware limited partnership, as administrative agent for the Lenders (in such capacity, and together with its successors and assigns, the “ Administrative Agent ”) and as collateral agent for the Lenders (in such capacity, and together with its successors and assigns, the “ Collateral Agent ”).

 

RECITALS

 

WHEREAS, the Borrower, the Lenders identified on signatures pages thereto, the Administrative Agent and the Collateral Agent are parties to that certain Senior Secured Credit Agreement, dated as of June 16, 2017 (the “ Existing Credit Agreement ”; the Existing Credit Agreement, as amended by this First Amendment, the “ Credit Agreement ”); and

 

WHEREAS, the Borrower, the Lenders, the Administrative Agent and the Collateral Agent desire to amend certain provisions of the Existing Credit Agreement in the manner and on the terms and conditions provided for herein.

 

NOW THEREFORE, in consideration of the premises and the mutual covenants and the agreements herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

 

ARTICLE I

Definitions

 

Section 1.1.      Certain Definitions .  Capitalized terms used herein but not otherwise defined herein or otherwise amended hereby shall have the meanings ascribed thereto in the Credit Agreement.

 

ARTICLE II

Amendments

 

Section 2.1.      Amendments to Credit Agreement .  Upon satisfaction of the conditions set forth in Section 3 hereof, the Existing Credit Agreement is hereby amended as follows:

 

(a)      In Annex A hereto, deletions of text in the Existing Credit Agreement as amended by this First Amendment are indicated by struck-through red text, and insertions of text as amended by this First Amendment are indicated by underlined blue text;

 

(b)      Schedule 2.1 to the Existing Credit Agreement is deleted in its entirety and Schedules 2.1(a) and 2.1(b) attached to this First Amendment are substituted in lieu thereof.


 

(c)       Schedule 10.02 to the Existing Credit Agreement is deleted in its entirety and Schedule 10.02 attached to this First Amendment is substituted in lieu thereof.

 

ARTICLE III

Representations and Warranties

 

Section 3.1.      Representations and Warranties . In order to induce the Agents and the Lenders to enter into this First Amendment, each Loan Party hereby represents and warrants to the Agents and each Lender as follows:

 

(a)      After giving effect to this First Amendment, the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Existing Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the First Amendment Effective Date (before and after giving effect to the proposed Credit Extension); provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be 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 shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

(b)      The execution, delivery and performance of this First Amendment have been duly authorized by all necessary action on the part of, and duly executed and delivered by each of the Loan Parties.

 

(c)      The Loan Parties are in full compliance with each of the Loan Documents.

 

(d)      There has been no Material Adverse Effect in the financial condition and business performance of the Borrower since the Closing Date.

 

(e)      No Default or Event of Default currently exists, shall be in existence immediately after giving effect to this First Amendment or would result from the proposed Credit Extension or from the application of the proceeds therefrom .

 

ARTICLE IV

Effectiveness

 

Section 4.1.      Effectiveness .  This First Amendment shall become effective as of the date (the “ First Amendment Effective Date ”), on which each of the following conditions is satisfied:

 

(a)      The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:

 

(i)      executed counterparts of this First Amendment;

 

(ii)      an original Note in respect of the First-Out Loans executed by the Borrower in favor of each Lender that has requested in writing a Note;

 

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(iii)      such certificates (including a certificate substantially in the form of Exhibit I to the Existing Credit Agreement) of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this First Amendment;

 

(iv)      an opinion of Thompson Hine LLP, counsel to the Loan Parties; and

 

(v)      copies of a recent Lien searches in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties.

 

(b)      Payment by the Borrower of all accrued costs, fees and expenses (including, without limitation, applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors to the Administrative Agent and the Lenders) and any other compensation due and payable to the Administrative Agent and Lenders on the First Amendment Effective Date shall have been received.  

 

(c)      Conditions set forth in Section 4.2 of the Credit Agreement shall have been satisfied or waived in accordance with Section 10.01 of the Credit Agreement.

 

ARTICLE V

Acknowledgements and Consent

 

Section 5.1.      Collateral .  The Loan Parties hereby acknowledge, ratify and reaffirm (i) the validity and enforceability of the Existing Credit Agreement and the other Loan Documents and all liens and security interests granted thereunder to the Collateral Agent for the benefit of the Lenders as collateral security for the Obligations and (ii) that all such liens and security interests continue to secure the Obligations under the Existing Credit Agreement, as amended by this First Amendment and all collateral pledged as security for the Obligations continue to be and remain collateral for the Obligations from and after the date hereof.

 

ARTICLE VI

Miscellaneous

 

Section 6.1.      Reference to and Effect on the Loan Documents .  

 

(a)      On and after the date hereof, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Existing Credit Agreement after giving effect to this First Amendment.

 

(b)      Except as specifically amended by this First Amendment, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.

 

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(c)      The execution, delivery and performance of this First Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Administrative Agent, the Collateral Agent or any Lender under the Existing Credit Agreement or any of the other Loan Documents.

 

(d)      The amendments to the Credit Agreement set forth herein shall be deemed by the parties to have effect from and after the First Amendment Effective Date.

 

Section 6.2.      Release .  As a material part of the consideration for the Administrative Agent, the Collateral Agent and the Lenders entering into this First Amendment, the Borrower and each other Loan Party (collectively, the “ Releasors ”) agree as follows (the “ Release Provision ”):

 

(a)     The Releasors, jointly and severally, hereby release and forever discharge the Administrative Agent, the Collateral Agent, each Lender and the Administrative Agent’s, the Collateral Agent’s and each Lender’s predecessors, successors, assigns, participants, officers, managers, directors, shareholders, employees, agents, attorneys and other professionals, representatives, parent corporations, subsidiaries, and affiliates (hereinafter all of the above collectively referred to as the “ Lender Group ”), from any and all claims, counterclaims, demands, damages, debts, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, rights, actions, and causes of action of any nature whatsoever and whether arising at law or in equity, presently possessed, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, presently accrued, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted arising out of, arising under or related to the Loan Documents (collectively, the “ Claims ”), that Releasors may have or allege to have against any or all of the Lender Group and that arise from events occurring before the date hereof.

 

(b)     The Releasors agree not to sue any of the Lender Group nor in any way assist any other person or entity in suing the Lender Group with respect to any of the Claims released herein.  The Release Provision may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the release contained herein.

 

(c)     The Releasors acknowledge, warrant, and represent to Lender Group that:

 

(i)     The Releasors have read and understand the effect of the Release Provision.  The Releasors have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of the Release Provision; and if counsel was retained, counsel for Releasors has read and considered the Release Provision and advised Releasors with respect to the same.  Before execution of this Amendment, the Releasors have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of the Release Provision.

 

4


 

(ii)     The Releasors are not acting in reliance on any representation, understanding, or agreement not expressly set forth herein.  The Releasors acknowledge that Lender Group has not made any representation with respect to the Release Provision except as expressly set forth herein.

 

(iii)     The Releasors have executed this Amendment and the Release Provision thereof as a free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any person or entity.

 

(iv)     The Releasors are the sole owners of the Claims released by the Release Provision, and the Releasors have not heretofore conveyed or assigned any interest in any such Claims to any other person or entity.

 

(d)     The Releasors understand that the Release Provision was a material consideration in the agreement of the Administrative Agent, the Collateral Agent and each Lender to enter into this First Amendment.

 

(e)     It is the express intent of the Releasors that the release and discharge set forth in the Release Provision be construed as broadly as possible in favor of Lender Group so as to foreclose forever the assertion by the Releasors of any Claims released hereby against Lender Group.

 

(f)     If any term, provision, covenant, or condition of the Release Provision is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of the provisions shall remain in full force and effect.

 

(g)     The Releasors acknowledge that they may hereafter discover facts in addition to or different from those that they now know or believe with respect to the Claims released herein, but the Releasors expressly shall have and intend to fully, finally and forever have released and discharged any and all such Claims.  The Releasors expressly waive any provision of statutory or decisional law to the effect that a general release does not extend to Claims that the releasing party does not know or suspect to exist in such party’s favor at the time of executing the release.

 

Section 6.3.      Guarantor’s Acknowledgement and Agreement . By signing below, each Guarantor (a) acknowledges, consents and agrees to this First Amendment, (b) acknowledges and agrees to any amendment to its obligations in respect of the Guarantee made pursuant to this First Amendment, (c) acknowledges and agrees that its obligations in respect of the Guarantee, the Security Agreement and the other Collateral Documents are not released, diminished, waived, modified or impaired in any manner by this First Amendment or any of the provisions contemplated herein, (d) ratifies and confirms its obligations under the Guarantee, the Security Agreement and the other Collateral Documents, and (e) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, the Guarantee, the Security Agreement, any other Collateral Documents or any other Loan Documents or Obligations.

 

Section 6.4.      Fees . The Borrower hereby affirms its obligation under the Credit Agreement to reimburse the Administrative Agent, the Collateral Agent and the Lenders for all reasonable and documented out‑of‑pocket costs and expenses incurred in connection with the

5


 

preparation, negotiation, execution and delivery of this First Amendment, including but not limited to all Attorney Costs.

 

Section 6.5.      Headings .  The headings in this First Amendment are included for convenience of reference only and will not affect in any way the meaning or interpretation of this First Amendment.

 

Section 6.6.      Governing Law .  This First Amendment, and all claims, disputes and matters arising hereunder or thereunder or related hereto or thereto, will be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed entirely within that state.

 

Section 6.7.      Counterparts .  This First Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same First Amendment.  Delivery of an executed counterpart of this First Amendment by facsimile or a scanned copy by electronic mail shall be equally as effective as delivery of an original executed counterpart of this First Amendment.

 

Section 6.8.      Severability .  If any term or other provision of this First Amendment is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this First Amendment will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this First Amendment so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.  

 

Section 6.9.      Binding Effect .  This First Amendment will be binding upon and inure to the benefit of and is enforceable by the respective successors and permitted assigns of the parties hereto.

 

[Remainder of page intentionally left blank; signatures on following pages.]

 

 

 

 

6


 

IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

 

 

GLOBAL POWER EQUIPMENT GROUP INC.,

 

as Borrower,

 

 

 

 

By:

/s/ Craig Holmes

 

Name:

Craig Holmes

 

Title:

Co-President and Co-Chief Executive Officer

 

 

 

 

 

 

 

Acknowledged and agreed:

 

 

 

 

GLOBAL POWER PROFESSIONAL SERVICES INC.

 

 

 

 

BRADEN CONSTRUCTION SERVICES, INC.

 

 

 

 

GLOBAL POWER TECHNICAL SERVICES, INC.

 

 

 

 

WILLIAMS GLOBAL SERVICES, INC.

 

 

 

 

WILLIAMS INDUSTRIAL SERVICES GROUP, L.L.C.

 

 

 

 

WILLIAMS INDUSTRIAL SERVICES, LLC

 

 

 

 

WILLIAMS SPECIALTY SERVICES, LLC

 

 

 

 

WILLIAMS PLANT SERVICES, LLC

 

 

 

 

KOONTZ-WAGNER CUSTOM CONTROLS HOLDINGS LLC

 

 

 

 

CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC

 

 

 

 

BRADEN MANUFACTURING, L.L.C.

 

 

each as Guarantor

 

 

 

 

 

 

 

By:

/s/ Erin Gonzalez

 

Name:

Erin Gonzalez

 

Title:

Vice President and Treasurer

 

 

 

[Signature Page to First Amendment to Senior Secured Credit Agreement]


 

 

 

 

 

BRADEN HOLDINGS, LLC

 

GPEG, LLC

 

 

each as Guarantor

 

 

 

 

 

 

 

By:

/s/ Erin Gonzalez

 

 

Erin Gonzalez

 

 

President and Treasurer

 

 

 

 

 

 

 

STEAM ENTERPRISES, L.L.C.

 

 

as Guarantor

 

 

 

 

 

 

 

By:

/s/ Tracy D. Pagliara

 

 

Tracy D. Pagliara

 

 

Vice President and Secretary

 

[Signature Page to First Amendment to Senior Secured Credit Agreement]


 

 

 

 

 

CENTRE LANE PARTNERS MASTER CREDIT FUND II, L.P.,

 

as Administrative Agent and Collateral Agent, and as a Lender

 

 

 

 

 

 

 

By:

/s/ Luke Gosselin

 

Name:

Luke Gosselin

 

Title:

Managing Director

 

 

 

 

 

 

 

CENTRE LANE PARTNERS IV, L.P.,

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Quinn Morgan

 

Name:

Quinn Morgan

 

Title:

Managing Director

 

 

 

[Signature Page to First Amendment to Senior Secured Credit Agreement]


 

 

Annex A

 

Conformed Credit Agreement

 

 

 


 

 

Conformed Copy

First Amendment dated August 17, 2017

 

 

$45,000,000

 

SENIOR SECURED CREDIT AGREEMENT

 

Dated as of June 16, 2017

 

Among

 

GLOBAL POWER EQUIPMENT GROUP INC.,

as Borrower,

 

THE LENDERS PARTY HERETO,

 

and

 

CENTRE LANE PARTNERS MASTER CREDIT FUND II, L .P.

as Administrative Agent and Collateral Agent

 

 

 

 


 

 

Table of Contents

 

 

 

Page

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

2

 

 

 

Section 1.01

Defined Terms

2

Section 1.02

Other Interpretive Provisions

35

Section 1.03

Accounting Terms

36

Section 1.04

Rounding

37

Section 1.05

References to Agreements, Laws, Etc.

37

Section 1.06

Times of Day

37

Section 1.07

Timing of Payment or Performance

37

Section 1.08

Currency Equivalents Generally

37

 

 

 

ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

37

 

 

 

Section 2.01

The Loans

37

Section 2.02

Prepayments

38

Section 2.03

Repayment of Loans

42

Section 2.04

Interest

43

Section 2.05

Fees

44

Section 2.06

Computation of Interest and Fees

44

Section 2.07

Evidence of Indebtedness

45

Section 2.08

Payments Generally

45

Section 2.09

Sharing of Payments

47

 

 

 

ARTICLE III

TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

48

 

 

 

Section 3.01

Taxes

48

Section 3.02

Illegality

52

Section 3.03

Increased Cost and Reduced Return; Capital Adequacy

53

Section 3.04

Matters Applicable to All Requests for Compensation

54

Section 3.05

Survival

54

 

 

 

ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

54

 

 

54

Section 4.01

Conditions to the Closing Date

58

Section 4.02

Conditions to All Credit Extensions

 

 

 

58

ARTICLE V

REPRESENTATIONS AND WARRANTIES

 

 

 

58

Section 5.01

Existence, Qualification and Power; Compliance with Laws

59

Section 5.02

Authorization; No Contravention

59

Section 5.03

Governmental Authorization; Other Consents

59

Section 5.04

Binding Effect

59

Section 5.05

Financial Statements; No Material Adverse Effect

59

Section 5.06

Litigation

60

Section 5.07

Ownership of Property; Liens

61

Section 5.08

Perfection of Security Interests

61

Section 5.09

Environmental Compliance

61

Section 5.10

Taxes

63

i


 

 

Section 5.11

Compliance with ERISA

63

Section 5.12

Labor Matters

64

Section 5.13

Insurance

64

Section 5.14

Subsidiaries; Equity Interests

64

Section 5.15

Margin Regulations; Investment Company Act; PATRIOT Act

64

Section 5.16

Disclosure

 

Section 5.17

Intellectual Property

65

Section 5.18

Solvency

65

Section 5.19

Material Agreements

66

 

 

 

ARTICLE VI

AFFIRMATIVE COVENANTS

66

 

 

 

Section 6.01

Financial Statements

66

Section 6.02

Certificates; Reports; Other Information

69

Section 6.03

Notice Requirements; Other Information

70

Section 6.04

Environmental Matters

72

Section 6.05

Maintenance of Existence

74

Section 6.06

Maintenance of Properties

74

Section 6.07

Maintenance of Insurance

75

Section 6.08

Compliance with Laws

75

Section 6.09

Books and Records

75

Section 6.10

Inspection Rights/Lender Meetings

75

Section 6.11

Covenant to Guarantee Obligations and Give Security

76

Section 6.12

Use of Proceeds

78

Section 6.13

Further Assurances; Post‑Closing Undertakings

79

Section 6.14

Taxes

79

Section 6.15

End of Fiscal Years; Fiscal Quarters

80

Section 6.16

ERISA

80

Section 6.17

Permitted Servicing Joint Ventures

81

Section 6.18

Chief Restructing Officer

81

 

 

 

ARTICLE VII

NEGATIVE COVENANTS

81

 

 

 

Section 7.01

Liens

81

Section 7.02

Investments

83

Section 7.03

Indebtedness

85

Section 7.04

Fundamental Changes

87

Section 7.05

Dispositions

88

Section 7.06

Restricted Payments

89

Section 7.07

Change in Nature of Business

89

Section 7.08

Transactions with Affiliates

89

Section 7.09

Prepayments of Certain Indebtedness; Modifications of Certain Indebtedness and Material Agreements

90

Section 7.10

Negative Pledge

90

Section 7.11

Amendments to Constitutive Documents

91

Section 7.12

Financial Covenant

91

Section 7.13

Sale Leasebacks

94

Section 7.14

Accounting Changes

94

Section 7.15

OFAC

94

ii


 

 

Section 7.16

Braden Holdings, LLC

94

 

 

 

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

94

 

 

 

Section 8.01

Events of Default

94

Section 8.02

Remedies Upon Event of Default

97

Section 8.03

Application of Funds

97

Section 8.04

Other Amounts Due

99

 

 

 

ARTICLE IX

ADMINISTRATIVE AGENT AND OTHER AGENTS

99

 

 

 

Section 9.01

Appointment and Authorization of Agents

99

Section 9.02

Delegation of Duties

101

Section 9.03

Liability of Agents

101

Section 9.04

Reliance by Agents

101

Section 9.05

Notice of Default

102

Section 9.06

Credit Decision; Disclosure of Information by Agents

102

Section 9.07

Indemnification of Agents

103

Section 9.08

Agents in their Individual Capacities

103

Section 9.09

Successor Agents

103

Section 9.10

Administrative Agent May File Proofs of Claim

104

Section 9.11

Release of Collateral and Guaranty

105

 

 

 

ARTICLE X

MISCELLANEOUS

106

 

 

 

Section 10.01

Amendments, Etc.

106

Section 10.02

Notices and Other Communications; Facsimile and Electronic Copies

108

Section 10.03

No Waiver; Cumulative Remedies

109

Section 10.04

Costs and Expenses

110

Section 10.05

Indemnification by the Borrower

110

Section 10.06

Payments Set Aside

112

Section 10.07

Successors and Assigns

112

Section 10.08

Confidentiality

115

Section 10.09

Setoff

116

Section 10.10

Counterparts

116

Section 10.11

Integration

117

Section 10.12

Survival of Representations and Warranties

117

Section 10.13

Severability

117

Section 10.14

GOVERNING LAW

117

Section 10.15

WAIVER OF RIGHT TO TRIAL BY JURY

118

Section 10.16

Binding Effect

118

Section 10.17

Lender Action

118

Section 10.18

PATRIOT Act

119

Section 10.19

No Advisory or Fiduciary Responsibility

119

 

iii


 

 

SCHEDULES

 

 

 

 

Schedule 1

Guarantors

Schedule 2.01(a)

Initial Loan Commitments

Schedule 2.01(b)

First-Out Loan Commitments

Schedule 5.02

Authorizations; No Contravention

Schedule 5.03

Governmental Authorization; Other Consents

Schedule 5.06

Litigation

Schedule 5.07(b)

Real Property/Leasehold Property

Schedule 5.08

Collateral Filings and Perfection Matters

Schedule 5.09

Environmental Compliance

Schedule 5.10(a)

Taxes

Schedule 5.10(b)

Taxes

Schedule 5.13

Insurance Policies

Schedule 5.14

Subsidiaries and Other Equity Investments

Schedule 5.17

Intellectual Property

Schedule 5.19

Material Agreements

Schedule 6.13

Post‑Closing Undertakings

Schedule 7.01(b)

Existing Liens

Schedule 7.02(d)

Existing Investments

Schedule 7.03(b)

Surviving Indebtedness

Schedule 7.03(c)

Existing Capital Leases

Schedule 7.03(i)

Intercompany Notes

Schedule 7.03(l)

Existing Letters of Credit

Schedule 7.05

Subsidiary Transaction

Schedule 7.13

Existing Sale Leasebacks

Schedule 10.02

Administrative Agent’s Office, Certain Addresses for Notices

 

iv


 

 

EXHIBITS

 

 

 

 

Exhibit A

Form of Prepayment Notice

Exhibit B

Form of Note

Exhibit C

Form of Compliance Certificate

Exhibit D

Form of Assignment and Assumption

Exhibit E

Form of Guaranty

Exhibit F

Form of Security Agreement

Exhibit G

Form of Securities Pledge Agreement

Exhibit H

Form of Intellectual Property Security Agreement

Exhibit I

Form of Officer’s Certificate

Exhibit J

Form of Solvency Certificate

Exhibit K

Form of Mortgage

 

 

 

v


 

 

SENIOR SECURED CREDIT AGREEMENT

 

This SENIOR SECURED CREDIT AGREEMENT (“ Agreement ”) is entered into as of June 16, 2017 among GLOBAL POWER EQUIPMENT GROUP INC., a Delaware corporation (the “ Company ” or the “ Borrower ”), each financial institution from time to time party hereto as lender (each, a “ Lender ” and collectively, the “ Lenders ”), and CENTRE LANE PARTNERS MASTER CREDIT FUND II, L.P. , a Delaware limited partnership, as administrative agent for the Lenders (in such capacity, and together with its successors and assigns, the “ Administrative Agent ”) and as collateral agent for the Lenders (in such capacity, and together with its successors and assigns, the “ Collateral Agent ”).

 

RECITALS

 

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Article I hereof;

 

WHEREAS, Lenders have agreed to extend Loans to the Borrower in an aggregate principal amount not to exceed $45,000,000, the proceeds of which will be used to (a) to refund, refinance and replace the existing secured asset-based revolving credit facility on the Closing Date, (b) to provide working capital and for other general corporate purposes permitted hereunder and (c) for fees and expenses related to the Transaction;

 

WHEREAS, the Borrower has agreed to secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on substantially all of its assets, including a first priority pledge of all of the Equity Interests of each of its Domestic Subsidiaries and each Specified Foreign Subsidiary, and 65% of the voting Equity Interests of each of its direct Foreign Subsidiaries (other than the Specified Foreign Subsidiaries); and

 

WHEREAS, the Guarantors have agreed to guarantee the obligations of the Borrower hereunder and to secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on substantially all of their respective assets, including a first priority pledge of all of the Equity Interests of each of their respective Domestic Subsidiaries (including Company) and each Specified Foreign Subsidiary, and 65% of the voting Equity Interests of each of their respective direct Foreign Subsidiaries (other than the Specified Foreign Subsidiaries).

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained and of the Loans and extensions of credit herein referred to, the parties hereto agree as follows:

 

 

 


 

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.01      Defined Terms .  As used in this Agreement, the following terms shall have the meanings set forth below:

 

2017 Filed Financial Statements ” has the meaning specified in Section 6.01(b) .

 

2018 Amortization Payment ” has the meaning specified in Section 2.03(b) .

 

ABN AMRO Facility ” means the asset-based facility made available to Braden-Europe B.V., Global Power Professional Services Netherlands B.V. and Global Power Netherlands B.V. (collectively, “ Global Power Netherlands ”), pursuant to the terms of that certain Credit Agreement, dated as of June 13, 2008, by and among ABN AMRO Bank N.V., as lender, and Global Power Netherlands, as borrowers, as previously amended and as may be further amended or supplemented from time to time in accordance with the terms of this Agreement.

 

Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions).

 

Administrative Agent ” has the meaning specified in the first paragraph of this Agreement or any successor administrative agent appointed in accordance with Section 9.09 .

 

Administrative Agent’s Office ” means, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

 

Affiliate ” means, in respect of any Person:

 

(a)     any Person which, directly or indirectly, controls, is controlled by or is under common control with such Person; and for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” or “under common control with”) means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of voting Equity Interests or by contract or otherwise;

 

(b)     any Person who beneficially owns or holds 10% or more of any class of shares (or, in the case of a Person that is not a corporation, 10% or more of the partnership or other Equity Interests) of such Person; or

 

2


 

 

(c)     any Person, 10% or more of any class of shares (or in the case of a Person that is not a corporation, 10% or more of the partnership or other Equity Interests) of which is beneficially owned or held by such Person or a Subsidiary of such Person.

 

Agent‑Related Persons ” means the Agents, together with their respective Affiliates, and the officers, directors, employees, partners, agents and attorneys‑in‑fact of such Persons and Affiliates.

 

Agents ” means, collectively, the Administrative Agent and the Collateral Agent.

 

Aggregate Commitments ” means, collectively, the Initial Loan Commitments and First-Out Loan Commitments of all the Lenders as in effect from time to time. 

 

Agreement ” has the meaning specified in the introductory paragraph hereto.

 

Applicable Lending Office ” means for any Lender, such Lender’s office, branch or affiliate as notified to the Administrative Agent and the Borrower or as otherwise specified in the Assignment and Assumption pursuant to which such Lender became a party hereto, any of which offices may, subject to Section 3.01(e) and Section 3.02 , be changed by such Lender upon ten (10) days’ prior written notice to the Administrative Agent and the Borrower; provided that for the purposes of the definition of “Excluded Taxes” and Section 3.01 , any such change shall be deemed an assignment made pursuant to an Assignment and Assumption.

 

Approved Fund ” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or Affiliate of an entity that administers, advises or manages a Lender.

 

Assignees ” has the meaning specified in Section 10.07(b) .

 

Assignment and Assumption ” means an Assignment and Assumption substantially in the form of Exhibit D .

 

Attorney Costs ” means and includes all reasonable and documented fees, out‑of‑pocket expenses and actual disbursements of any law firm or other external legal counsel.

 

Attributable Indebtedness ” means, at any date, (a) in respect of any Capital Lease Obligation (other than a lease resulting from a Sale Leaseback) of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation of any Person, the capitalized or principal 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 or other agreement were accounted for as a Capital Lease, (c) in respect of any Sale Leaseback, the lesser of (i) the present value, discounted in accordance with GAAP at the interest rate implicit in the related lease, of the obligations of the lessee for net rental payments over the remaining term of such lease (including any period for which such lease has

3


 

 

been extended or may, at the option of the lessor be extended) and (ii) the fair market value of the assets subject to such transaction, and (d) all Synthetic Debt of such Person. 

 

Audited Financial Statements ” means the audited financial statements described in Section 4.01(e) .

 

Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy”.

 

Borrower ” has the meaning specified in the introductory paragraph hereto.

 

Borrowing ” means a borrowing consisting of Loans made by 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 or required to close under the Laws of, or are in fact closed in, the State of New York; provided ,   however , that when used in connection with determining the LIBO Rate, the term “ Business Day ” shall exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

 

Capital Expenditures ” means, for any period and with respect to any Person, any and all expenditures made by such Person or any of its Subsidiaries in such period for assets added to or reflected in its property, plant and equipment accounts or other similar capital asset accounts or comparable items or any other capital expenditures that are, or should be, set forth as “additions to plant, property and equipment” on the consolidated financial statements of such Person and its Subsidiaries prepared in accordance with GAAP, whether such asset is purchased for cash or financed as an account payable or by the incurrence of Indebtedness, accrued as a liability or otherwise.

 

Capital Lease ” means, with respect to any Person, any leasing or similar arrangement conveying the right to use any property, whether real or personal property, or a combination thereof, by that Person as lessee that, in conformity with GAAP, is required to be accounted for as a capital lease on the balance sheet of such Person.

 

Capital Lease Obligation ” means, with respect to any Person, all monetary or financial obligations of such Person and its Subsidiaries under any Capital Leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date on which such lease may be terminated by the lessee without payment of a penalty; provided that any obligations that were not required to be included on the balance sheet of such Person as capital lease obligations when incurred but are subsequently re‑characterized as capital lease obligations due to a change in accounting rules after the Closing Date shall for all purposes hereunder not be treated as a Capital Lease Obligation.

 

4


 

 

Cash Equivalents ” means any of the following, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens other than Liens created under the Collateral Documents and having a maturity of not greater than 365 days from the date of acquisition thereof: (a) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (b) insured certificates of deposit of or time deposits with any domestic commercial bank having capital and surplus in excess of $500,000,000, (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the Government of the United States, (d) securities with maturities of 365 days or less from the date of acquisition that are issued or fully guaranteed by any state, district or territory of the United States, by any political subdivision or taxing authority of any such state, district or territory or by any foreign government, the securities of which state, district or territory, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s, (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition, (f) money market mutual or similar funds that invest substantially all of their assets in one or more type of securities satisfying the requirements of clauses (a) through (e) of this definition, or (g) Investments, classified in accordance with GAAP as Current Assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions having capital of at least $500,000,000, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a) and (b) of this definition.

 

Cash Flow Budget ” has the meaning specified in Section 6.01(c)(iii) .

 

Cash Interest ” has the meaning specified in Section 2.04(a) .

 

Cash Interest Expense ” means, for any period and with respect to any Person, Consolidated Interest Expense of such Person for such period that is paid in cash.

 

Casualty Event ” means any casualty, loss, damage, destruction or other similar loss with respect to real or personal property or improvements.

 

CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.

 

CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

 

CFC ” means an entity that is a controlled foreign corporation within the meaning of Section 957 of the Code and with respect to which the Borrower is a “United States shareholder,” within the meaning of Section 951(b) of the Code; provided that for purposes of this Agreement, no Specified Foreign Subsidiary shall be regarded as a CFC.

 

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CFC Pledge Restrictions ” has the meaning specified in Section 6.11(h) .

 

Change in Law ” means (a) the adoption of any law, treaty, order, policy, rule or regulation after the date of this Agreement, (b) any change in any law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) the making or issuance of any guideline, request or directive issued or made after the date hereof by any central bank or other Governmental Authority (whether or not having the force of law); provided that notwithstanding anything herein to the contrary, (x) the Dodd‑Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements 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 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, issued or implemented; provided that increased costs as a result of a Change in Law pursuant to clauses (x) and (y) above shall only be reimbursable by the Borrower to a Lender to the extent such Lender is requiring reimbursement therefor generally from similarly situated borrowers under comparable syndicated credit facilities.

 

Change of Control ” means (i) any Person or “group” (within the meaning of Rules 13d‑3 and 13d‑5 under the Exchange Act) (a) shall have acquired beneficial ownership of 25% or more on a fully diluted basis of the voting and/or economic interest in the Equity Interests of the Company or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of the Company; or (ii) the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of the Company cease to be occupied by Persons who either (a) were members of the board of directors of the Company on the Closing Date, or (b) were nominated for election by the board of directors of the Company, a majority of whom were directors on the Closing Date or whose election or nomination for election was previously approved by a majority of such directors.

 

Chief Restructuring Officer ” has the meaning specified in Section 6.19 .

 

Closing Date ” means the date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .

 

Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time.

 

Collateral ” means all the “Collateral” as defined in any Collateral Document and all other property or assets that are required under the terms of the Loan Documents to be subject to Liens in favor of the Administrative Agent and/or the Collateral Agent for the benefit of the Secured Parties and shall include the Mortgaged Properties, if any.

 

Collateral Agent ” has the meaning specified in the first paragraph of this Agreement or any successor collateral agent appointed in accordance with Section 9.09 .

 

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Collateral and Guarantee Requirement ” means, at any time, the requirement that:

 

(a)     the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.01 or pursuant to Section 6.11 or Section 6.13 at such time set forth in each such Section, in each case duly executed by each Loan Party party thereto;

 

(b)     all Obligations shall have been unconditionally guaranteed (the “ Guarantees ”) jointly and severally on a senior basis by each Domestic Subsidiary of the Borrower (other than any Subsidiary that is treated as an entity disregarded from its owner for U.S. federal income tax purposes and is Wholly-owned by a CFC, subject to Section 6.11(h) ), including, as of the Closing Date, those that are listed on Schedule 1 hereto (each, a “ Guarantor ”);

 

(c)     the Obligations and the Guarantees shall have been secured by a first priority security interest, in (i) all the Equity Interests of any direct or indirect Domestic Subsidiary of the Borrower (other than any Subsidiary that is treated as an entity disregarded from its owner for U.S. federal income tax purposes and is Wholly-owned by a CFC), (ii) 65% of the issued and outstanding voting Equity Interests and 100% of the non‑voting Equity Interests of each Subsidiary that is treated as a CFC for U.S. federal income tax purposes and that is directly held by the Borrower or by any Domestic Subsidiary of the Borrower; provided that any Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulations Section 1.956‑2(c)(2) shall be treated as voting Equity Interests for purposes of this clause (c) , and (iii) all of the Equity Interests of any Subsidiary that is a Foreign Subsidiary other than a CFC that is directly held by the Borrower or by any Subsidiary of the Borrower (other than any Subsidiary that is a CFC or that is treated as an entity disregarded from its owner for U.S. federal income tax purposes and is Wholly-owned by a CFC), and, in the case of each of clauses (i), (ii) and (iii) above, the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;

 

(d)     the Obligations and the Guarantees shall have been secured by a first‑priority security interest, in all Indebtedness of the Borrower and each Subsidiary that is owing to any Loan Party, which shall be (to the extent required by the Collateral Documents) evidenced by a promissory note or an instrument and shall have been pledged pursuant to the applicable Collateral Document, and the Collateral Agent shall have received all such promissory notes or certificated instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;

 

(e)     except to the extent otherwise provided hereunder or under any Collateral Document, the Obligations and the Guarantees shall have been secured by a perfected first priority security interest (subject to Liens permitted under Section 7.01 ) in, and mortgages on, substantially all tangible and intangible assets of the Borrower and each Guarantor (including but not limited to accounts receivable, deposit accounts, inventory, machinery and equipment, investment property, cash, Intellectual Property, other general

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intangibles, owned real property, intercompany Indebtedness and proceeds of the foregoing); provided ,   however , that (v) no security interest in fee‑owned real property other than Material Owned Property shall be required, (w) no security interest in motor vehicles and other assets subject to certificates of title shall be required, (x) subject to Section 6.13 , no security interests (including in respect of interests in partnerships, joint ventures and other non‑Wholly‑owned entities) to the extent (and for the duration) that the granting of a security interest in such asset would be prohibited by applicable law or agreements containing enforceable anti‑assignment clauses not overridden by the Uniform Commercial Code or other applicable law shall be required, (y) any security interest in Intellectual Property shall exclude any intent‑to‑use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent‑to‑use trademark application under applicable federal law and (z) no security interest in property created or incurred pursuant to Section 7.01(h) subject to Capital Lease or purchase money financing permitted under Section 7.03(c) to the extent (and for the duration) that the granting of a security interest in such asset would be prohibited under the agreement evidencing or otherwise governing the related Indebtedness and not overridden by the Uniform Commercial Code or other applicable law (the assets described in the foregoing clauses (v) through (z), collectively, “ Excluded Property ”).

 

(f)     none of the Collateral shall be subject to any Liens other than Liens permitted by Section 7.01 ; and

 

(g)     The Administrative Agent shall have received the Mortgages with respect to each Material Owned Property and with respect to each Leasehold Property required to be delivered pursuant to this Collateral and Guarantee Requirement or Section 6.11 at such time as set forth therein (the “ Mortgaged Properties ”), together with:

 

(i)     evidence that counterparts of the Mortgages with respect to the Mortgaged Properties have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices as necessary to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties (subject only to Liens of the nature referred to in Section 5.07(b) ) along with evidence reasonably satisfactory to the Administrative Agent that all filing and recording taxes and fees payable with respect to the Mortgages have been paid or received by the issuer of the Mortgage Policies (or, in the event that the Administrative Agent waives a Mortgage Policy for any Mortgaged Property, an escrow agent reasonably satisfactory to the Administrative Agent);

 

(ii)     fully paid American Land Title Association Lender’s Extended Coverage (or other reasonably satisfactory coverage if such coverage is not available in the applicable jurisdiction) title insurance policies (the “ Mortgage Policies ”) in form and substance reasonably satisfactory to the Administrative Agent, together with such endorsements that are reasonably required by the

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Administrative Agent and which lenders typically receive in the jurisdiction where the Mortgaged Property is located, in an amount reasonably acceptable to the Administrative Agent, issued by title insurers reasonably acceptable to the Administrative Agent and insuring the Mortgages to be valid first and subsisting Liens on the real property described therein, in a customary form in the jurisdiction where the Mortgaged Property is located free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances ( provided that if a survey is not available pursuant to paragraph (iii) below, such Mortgage Policies may include the standard survey exception and the Administrative Agent shall not require any endorsement that will require delivery of a survey), except Liens of the nature referred to in Section 5.07(b) ;

 

(iii)     American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, dated no more than ninety (90) days before the date of delivery of such surveys (or such date as the Administrative Agent agrees in its reasonable discretion), certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the real property described in such surveys is located, showing no material defects except Liens of the nature referred to in Section 5.07(b) and otherwise reasonably acceptable to the Administrative Agent;

 

(iv)     satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 , or otherwise required by the terms of the Mortgages, in respect of Mortgaged Properties;

 

(v)     favorable opinions of local counsel for the Loan Parties (i) in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent and (ii) in states in which the Loan Parties to the Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of the Mortgages, in form and substance reasonably satisfactory to the Administrative Agent;

 

(vi)     (A) evidence as to whether each Material Owned Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “ Flood Hazard Property ”) pursuant to a standard flood hazard determination form ordered and received by the Collateral Agent, and (B) if such Material Owned Property is a Flood Hazard Property, (1) evidence as to whether the community in which such Material Owned Property is located is participating in the National Flood Insurance Program, (2) the applicable Loan Party’s written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such Material Owned Property is a Flood

9


 

 

Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (3) copies of the applicable Loan Party’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent and naming the Collateral Agent as sole loss payee on behalf of the Secured Parties; and

 

(vii)     such consents and agreements of other third parties, such estoppel letters and other confirmations, and such other actions that, in each case, the Administrative Agent and the Collateral Agent may reasonably deem necessary in order to create valid and subsisting Liens on the property described in the Mortgages shall have been delivered or taken, in each case to the extent the same can be obtained or taken with the use of commercially reasonable efforts.

 

The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the delivery of particular documents with respect to, particular assets if and for so long as the Administrative Agent and the Borrower mutually agree in their reasonable discretion that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in relation to the benefits to be obtained by the Lenders therefrom. 

 

The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the time as set forth therein for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in its discretion, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

 

Collateral Documents ” means, collectively, the Security Agreement, the Securities Pledge Agreement, the Intellectual Property Security Agreement, the Mortgages, any collateral assignments, any security agreements, pledge agreements or other similar agreements, or any supplements to any of the foregoing, delivered to the Collateral Agent and the Lenders pursuant to the Collateral and Guarantee Requirement, Section 4.01(a)(iii) ,   Section 6.11 , or Section 6.13 , the Guaranty and each of the other agreements, instruments or documents that creates or purports to create a Lien or Guarantee in favor of the Collateral Agent for the benefit of the Secured Parties.

 

Collateral Questionnaire   means a certificate in form satisfactory to Collateral Agent that provides information with respect to the personal or mixed property of each Loan Party.

 

Commitment ” means, as to each Lender, such Lender’s Initial Loan Commitment and its First-Out Loan Commitment.

 

Communications ” has the meaning specified in Section 10.02(e) .

 

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Company ” has the meaning specified in the first paragraph of this Agreement.

 

Compensation Period ” has the meaning specified in Section 2.08(c)(ii) .

 

Competitor ” means any Person that is engaged in the same or substantially similar business as the business conducted by the Borrower and its Subsidiaries on the Closing Date and any other Person designated by the Borrower as a “competitor” of the Borrower or any of its Subsidiaries (excluding any bank, financial institution, debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing in loans, commitments and similar extensions of credit in the ordinary course of its business) by written notice delivered to the Administrative Agent from time to time.

 

Compliance Certificate ” means a certificate substantially in the form of Exhibit C .

 

Consolidated Adjusted EBITDA ” means, for any period and with respect to any Person, Consolidated Net Income of such Person and its Subsidiaries for such period, plus  

 

(a)      without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of:

 

(i)      Consolidated Interest Expense, deferred financing fees, non‑cash interest expenses, upfront financing and other agent or lender fees and any amortization of original issue discount in connection with the Facility and any other Indebtedness permitted under this Agreement of such Person and its Subsidiaries for such period;

 

(ii)      consolidated income and franchise tax expense of such Person and its Subsidiaries for such period;

 

(iii)      all amounts properly attributable to depreciation and amortization and other non-cash items for such period, including any non-cash write-downs or non-cash write-offs including fixed asset impairments or write-downs, intangible asset impairments and deferred tax asset write-offs (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future) of such Person and its Subsidiaries for such period;

 

(iv)      amounts incurred in Fiscal Years ending 2017 and 2018 that are necessary to pay any and all documented fees, expenses, commissions, costs or other charges attributable to the restatement of the Company’s financial statements; provided that such amounts shall not exceed $4,000,000 in Fiscal Year 2017 and $1,000,000 in Fiscal Year 2018;

 

(v)     any extraordinary losses and unusual or non‑recurring charges, or any integration, facilities closing or relocation costs and curtailments or modifications to pension and post‑retirement employee benefit plans in an aggregate amount not to exceed $1,000,000 in any Fiscal Year;

 

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(vi)      any severance costs incurred prior to the end of Fiscal Year 2017, in an aggregate amount not to exceed $2,000,000;

 

(vii)     amounts necessary to pay any documented fees, expenses, commissions, costs or other charges related to consulting or advisory services provided to the Company or its Subsidiaries, together with any waiver or amendment fees incurred in connection with the Company’s existing secured asset-based revolving credit facility, in each case, prior to the Closing Date in an aggregate amount not to exceed $1,000,000;

 

(viii)      non-cash stock compensation expense;

 

(ix)     non‑cash expenses recognized due to purchase accounting;

 

(x)      any bank fees, expenses, commissions, costs or other charges related to the Indebtedness being refinanced in connection with the Transaction;

 

(xi)     any losses attributable to foreign currency translation or exchange;

 

(xii)     one-time, non-recurring customary and documented costs and expenses deducted from net income during such period in connection with the consummation of the Transaction and the negotiation, execution and delivery of the Loan Documents;

 

minus

 

(b)      without duplication and to the extent included in determining such Consolidated Net Income of such Person and its Subsidiaries, any non‑cash additions to Consolidated Net Income of such Person and its Subsidiaries for such period (other than (i) the accrual of revenue or recording of receivables in the ordinary course of business and (ii) the reversal of any accrual of a reserve referred to clause (a)(iv) above); minus  

 

(c)      any gains attributable to foreign currency translation or exchange; minus

 

(d)     without duplication and to the extent included in determining such Consolidated Net Income of such Person and its Subsidiaries, any extraordinary or non-recurring non‑cash gains (or plus extraordinary non‑cash losses) for such period and any gains (or plus losses) realized in connection with any Disposition of such Person and its Subsidiaries during such period, all determined on a consolidated basis in accordance with GAAP. 

 

Consolidated Interest Expense ” means, for any period and with respect to any Person, the total consolidated interest expense of such Person and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP excluding deferred financing fees (including any Upfront First-Out Fee PIK Amount and any Upfront Initial Fee PIK Amount), non‑cash interest expense (including any accreting PIK Interest), non‑cash debt amortization, upfront financing fees and any amortization of original issue discount in connection with the Facility and any other Indebtedness permitted under this Agreement plus , without duplication (i) imputed interest on Capital Lease Obligations of such Person and its Subsidiaries for such

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period; (ii) commissions, discounts, and participation fees payable pursuant to this Agreement and issuance fees and other fees and charges owed by such Person or any of its Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings for such period; provided that, in respect of any letters of credit secured by cash collateral, the amount of such commissions, discounts and other fees and charges shall be determined on a net basis after accounting for any interest income on deposited amounts with respect thereto; (iii) cash contributions to any employee stock ownership plan or similar trust made by such Person or any of its Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than such Person or a Wholly‑Owned Subsidiary of such Person) in connection with Indebtedness incurred by such plan or trust for such period; (iv) all interest paid or payable with respect to discontinued operations of such Person or any of its Subsidiaries for such period; (v) the interest portion of any deferred payment obligations of such Person or any of its Subsidiaries for such period; and (vi) all interest on any Indebtedness of such Person or any of its Subsidiaries of the type described in clause (f) or (g) of the definition of “Indebtedness” for such period, to the extent actually paid by such Person or any of its Subsidiaries; provided that Consolidated Interest Expense shall be calculated after giving effect to Swap Contracts (including associated costs), but excluding unrealized gains and losses with respect to Swap Contracts.

 

Consolidated Net Income ” means, for any period and for any Person, the net income or loss of such Person and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded for any such Person therefrom (i) the income or loss of any Person (other than consolidated Subsidiaries of such Person)) in which any other Person (other than such Person or any of its Subsidiaries) has an interest, except to the extent of the amount of dividends or other distributions actually paid to such Person or any of its Subsidiaries by such Person during such period, (ii) the cumulative effect of a change in accounting principles during such period, (iii) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with such Person or any of its Subsidiaries or that Person’s assets are acquired by such Person or any of its Subsidiaries, (iv) gains and losses from the early extinguishment of Indebtedness and (v) (to the extent not included in clauses (i) through (iv) above) any net extraordinary gains or net extraordinary losses. In no event shall “Consolidated Net Income” include the income or loss of any Permitted Servicing Joint Venture, except to the extent of the amount of dividends or other distributions actually paid to the Borrower or any of its Subsidiaries by a Permitted Servicing Joint Venture during such period.

 

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.

 

Credit Extension ” means a Borrowing.

 

Current Assets ”  means, at any date, all assets of the Loan Parties which under GAAP would be classified as current assets (excluding any cash or Cash Equivalents).

 

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Current Liabilities ” means, at any date, all liabilities of the Loan Parties which under GAAP would be classified as current liabilities, other than current maturities of long term Indebtedness which is not then in default or otherwise due and payable.

 

Debt Equivalents ” means, in respect of any Person, (i) any Equity Interest of such Person which by its terms (or by the terms of any security for which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event or otherwise (including an event which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible into or exchangeable for Indebtedness or Debt Equivalents, or (C) is redeemable or subject to any repurchase requirement arising at the option of the holder thereof, in whole or in part, on or prior to the first anniversary following the Maturity Date, (ii) if such Person is a Subsidiary of the Borrower, any preferred stock of such Person which by its terms is mandatorily redeemable or redeemable at the option of the holder prior to the date which is one hundred eighty (180) days after the applicable maturity date provided in clause (i) above and (iii) any Disqualified Equity Interests of such Person.

 

Debt Service ” means, for any period, Cash Interest Expense of Borrower and its Subsidiaries for such period plus scheduled principal amortization of all Indebtedness of Borrower and its Subsidiaries for such period, excluding any principal repaid on or about the Closing Date with proceeds of the Loans.

 

Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, fraudulent transfer, reorganization, or similar debtor relief Laws of the United States or any similar foreign, federal or state law for the relief of debtors from time to time in effect and affecting the rights of creditors generally.

 

Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

Default Rate ” means an interest rate equal to the interest rate otherwise applicable to such Loan plus 5.0% per annum, in each case, to the fullest extent permitted by applicable Laws.

 

Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition of any asset or property by a Loan Party (including any Sale Leaseback and any sale of Equity Interests, but excluding any issuance by a Loan Party of its own Equity Interests), 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; provided that Dispositions shall include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Loan Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification).

 

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Disqualified Equity Interests ” means, with respect to any Person, any Equity Interest of such Person which, by its terms, or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable, or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date; provided that, if such Equity Interests are issued pursuant to a plan for the benefit of employees of Borrower or any of its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Borrower or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

Dollars ” means lawful money of the United States.

 

Domestic Subsidiary ” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.

 

ECF Percentage ” has the meaning specified in Section 2.02(b)(i) .

 

Eligible Assignee ” means, in respect of an assignment made by a Lender pursuant to Section 10.07 , and in addition to those Persons approved as required thereunder, (a) a Lender and (b) an Approved Fund; provided , that in no event shall (x) a natural person or (y) the Borrower or any of its Affiliates be an “Eligible Assignee”; provided ,   further , that so long as no Event of Default pursuant to Section 8.01(a) or (f) has occurred and is continuing, no Competitor shall be an “Eligible Assignee”.

 

Environmental Action ” means any action, suit, demand, demand letter, claim, notice of non‑compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged exposure, injury or threat to health and safety as it relates to any Hazardous Material or the environment, including, without limitation, (a) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages relating to Releases of Hazardous Materials or actual or alleged violations of Environmental Laws and (b) by any Governmental Authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

 

Environmental Laws ” means any and all applicable federal, provincial, local and foreign Laws, decrees, consent orders, consent agreements or other governmental restrictions relating to the environment, human health and safety or to the manufacture, processing,

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distribution, use, treatment, storage, disposal, transport, Release or handling of, or exposure to, Hazardous Materials.

 

Environmental Liability ” in respect of any Person, any and all legal obligations and liabilities under Environmental Laws, including for any Release caused by such Person or which is discovered or uncovered during the ownership or control of any real property by such Person and which adversely impacts any Person, property or the environment whether or not caused by a breach of applicable laws (including Environmental Laws).

 

Environmental Permit ” means any permit, approval, hazardous waste identification number, license or other authorization issued by or submitted to a Governmental Authority and required under any Environmental Law.

 

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, as amended from time to time and Treasury regulations promulgated and rulings issued thereunder.

 

ERISA Affiliate ” means any trade or business (whether or not incorporated) that is under common control with any Loan Party and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.

 

ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations at any facility of any Loan Party or ERISA Affiliate as described in Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is insolvent or is in reorganization within the meaning of Title IV of ERISA (or that is in endangered or critical status, within the meaning of Section 305 of ERISA); (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, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an 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 or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under

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Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (g) a determination that any Pension Plan is, or is expected to be, in “at‑risk” status (within the meaning of Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); or (h) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Pension Plan.

 

Event of Default ” has the meaning specified in Section 9.01 .

 

Excess ” has the meaning specified in Section 3.02(b).

 

Excess Cash Flow ” means, for the most recently completed Test Period ending on the last day of a Fiscal Year, Consolidated Adjusted EBITDA of Borrower and its Subsidiaries for such period, minus , without duplication:

 

(a)     Debt Service for such period;

 

(b)     permanent repayments of Indebtedness (so long as not already reflected in Debt Service) made with cash by Borrower and its Subsidiaries during such period (it being understood that the foregoing deductions shall not duplicate deductions from Excess Cash Flow taken pursuant to Section 2.02(b)(i) );

 

(c)     income and franchise taxes of Borrower and its Subsidiaries that were paid in cash during such period or will be paid within six months after the end of such period and for which reserves have been established;

 

(d)     the absolute value of the difference, if negative, of the amount of Net Working Capital at the end of the prior Test Period in excess of the amount of Net Working Capital at the end of such period;

 

(e)     amounts included in Consolidated Adjusted EBITDA by operation of clause (a)(iv), (a)(vi) and (a)(vii) of the definition thereof; and

 

(f)     losses excluded from the calculation of Consolidated Adjusted EBITDA by operation of clause (c) of the definition thereof that are paid in cash during such period;

 

provided that any amount deducted pursuant to any of the foregoing clauses that will be paid after the close of such period shall not be deducted again in a subsequent period; plus , without duplication:

 

(1)     the difference, if positive, of the amount of Net Working Capital at the end of the prior period in excess of the amount of Net Working Capital at the end of such period;

 

(2)     gross proceeds received (or, in lieu of receipt, paid to a third party on behalf of Borrower or any of its Subsidiaries) during such period of any Indebtedness to

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the extent used to finance any Capital Expenditure (other than Indebtedness under this Agreement to the extent there is no corresponding deduction to Excess Cash Flow above in respect of the use of such borrowings); and

 

(3)     income or gain excluded from the calculation of Consolidated Adjusted EBITDA by operation of clause (c) of the definition thereof that is realized in cash during such Excess Cash Flow period.

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time.

 

Exchange Rate ” means on any day with respect to any currency other than Dollars, the rate at which such currency may be exchanged into Dollars, as set forth at approximately 12:00 noon (New York, New York time) on such day on the Reuters Fedspot page for such currency; in the event that such rate does not appear on any Reuters page, the Exchange Rate shall be determined by the Administrative Agent to be the rate quoted by it at the spot rate for Dollars purchased by it with Euros through its principal foreign exchange trading office at approximately 12:00 noon (New York, New York time) on the date as of which the foreign computation is made.

 

Excluded Property ” has the meaning specified in the definition of “Collateral and Guarantee Requirement.”

 

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable 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 Foreign 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 or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01 , 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(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

 

Existing Letters of Credit ” means those letters of credit outstanding as of the date hereof and set forth on Schedule 7.03(l) , issued by Wells Fargo Bank National Association for the account of the Borrower or any of its Subsidiaries.

 

Exit Fee ” has the meaning set forth in Section 2.05(c) .

 

Facility ” means the facility provided under this Agreement.

 

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FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable), 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 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 charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

 

Financial Covenants ” means the covenants set forth in Section 7.12 .

 

First Amendment ” means the First Amendment to Senior Secured Credit Agreement, dated as of August 17, 2017, among the Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.

 

First Amendment Effective Date ” means the date all the conditions precedent to effectiveness of the First Amendment as set forth therein are satisfied or waived in accordance therewith.

 

First-Out Loan Commitment ” has the meaning specified in Section 2.01(b) .  As of the First Amendment Effective Date, and prior to the making of any First-Out Loans on the First Amendment Effective Date, the amount of the First-Out Loan Commitments is $10,000,000.

 

First-Out Loan Repayment Date ” means September 30, 2018.

 

First-Out Loans ” has the meaning specified in Section 2.01(b) .  

 

Fiscal Year ” means the fiscal year of the Borrower, the Company and their Subsidiaries, as applicable, ending on December 31 of each calendar year.

 

Fixed Charge Coverage Ratio ” means with respect to any Test Period, the ratio of (a) Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries for such Test Period to (b) Debt Service for such Test Period (excluding the amortization of non-cash financing expenses to the extent such expenses would otherwise be included in calculating Debt Service of the Borrower and its Subsidiaries).

 

Flood Hazard Property ” has the meaning specified in clause (g)(vi)  of the definition of “Collateral and Guarantee Requirement.”

 

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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 a resident or organized under the laws of a jurisdiction other than that in which the Borrower is a resident for tax purposes.

 

Foreign Subsidiary ” shall mean any Subsidiary that is not a Domestic Subsidiary.

 

FRB ” means the Board of Governors of the Federal Reserve System of the United States.

 

Fund ” means any Person (other than an individual) 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.

 

GAAP ” means generally accepted accounting principles in the United States, as in effect from time to time.

 

Global Power Netherlands ” has the meaning assigned in the definition of “ ABN AMRO Facility ”.

 

Governmental Authority ” means any nation or government, any provincial, state, local, municipal or other political subdivision thereof, and any entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

Governmental Authorization ” means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.

 

Granting Lender ” has the meaning specified in Section 10.07(g) .

 

Guarantee ” has the meaning specified in the definition of “Collateral and Guarantee Requirement” and shall be substantially in the form of Exhibit E .

 

Guarantee Obligations ” means, with respect to any Person, any obligation or arrangement of such Person to guarantee or intended to guarantee any Indebtedness or other payment obligations (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co‑making, discounting with recourse or sale with recourse by such Person of the Obligation of a primary obligor, (b) the obligation to make take‑or‑pay or similar payments, if required, regardless of non‑performance by any other party or parties to an agreement or (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for

20


 

 

the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof.  The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Guarantee Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

 

Guarantor Subsidiary ” means each Guarantor that is a Domestic Subsidiary.

 

Guarantors ” has the meaning specified in the definition of “Collateral and Guarantee Requirement.”

 

Guaranty ” means, collectively, (a) the Guarantee and (b) each other guaranty and guaranty supplement delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

 

Hazardous Materials ” means any material, substance or waste that is regulated, classified, or otherwise characterized under or pursuant to any Environmental Law as “hazardous,” “toxic,” a “pollutant,” a “contaminant,” a “deleterious substance,” “dangerous goods,” “radioactive” or words of similar meaning or effect, including petroleum and its by‑products, asbestos, polychlorinated biphenyls, radon, greenhouse gases, mold, urea formaldehyde insulation, chlorofluorocarbons and all other ozone‑depleting substances.

 

Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable and other accrued liabilities incurred in the ordinary course of business not past due for more than one hundred twenty (120) days after its stated due date (except for accounts payable contested in good faith), (ii) any earn‑out obligation until such obligation is both required to be reflected as a liability on the balance sheet of such Person in accordance with GAAP and not paid after becoming due and payable and (iii) deferred or equity compensation arrangements entered into in the ordinary course of business and payable to directors, officers or employees), (e) all Indebtedness (excluding prepaid interest thereon) of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed but, in the case of Indebtedness which is not

21


 

 

assumed by such Person, limited to the lesser of (x) the amount of such Indebtedness and (y) the fair market value of such property, (f) all Guarantee Obligations by such Person of Indebtedness of others, (g) all Attributable Indebtedness of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty (excluding the portion thereof that has been fully cash collateralized in a manner permitted by this Agreement), (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, surety bonds and performance bonds, whether or not matured, (j) all Debt Equivalents of such Person, (k) all obligations in respect of the Upfront First-Out Fee, the Upfront Initial Fee, the Upfront First-Out Fee PIK Amount and the Upfront Initial Fee PIK Amount and (l) the Swap Termination Value under outstanding Swap Contracts at such time to which such Person is a party.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is directly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  Anything herein to the contrary notwithstanding, obligations in respect of any Indebtedness that has been irrevocably defeased (either covenant or legal) or satisfied and discharged pursuant to the terms of the instrument creating or governing such Indebtedness shall not constitute Indebtedness.

 

Indemnified Liabilities ” has the meaning specified in Section 10.05 .

 

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 10.05 .

 

Information ” has the meaning specified in Section 10.08 .  

 

Initial Loan Commitment ” has the meaning specified in Section 2.01(a) .  As of the Closing Date, and prior to making any Initial Loans on the Closing Date, the aggregate principal amount of the Initial Loan Commitments is $45,000,000.

 

Initial Loans ” has the meaning specified in Section 2.01(a) .

 

Initial Subsidiary Transaction ” means the first occurrence of a Subsidiary Transaction.

 

Intellectual Property ” has the meaning specified in Section 5.17 .

 

Intellectual Property Security Agreement ” means, collectively, (a) the Intellectual Property Security Agreement executed by certain Loan Parties in the form of Exhibit H , and (b) each other Intellectual Property Security Agreement Supplement executed and delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

 

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Intellectual Property Security Agreement Supplement ” has the meaning specified in Section 6.11 .

 

interest ” has the meaning specified in Section 3.02(b) .

 

Interest Payment Date ” means the last day of each calendar month, subject to Section 1.07 .

 

Interest Period ” means (i) as to the Initial Loans (A) initially, the period beginning on (and including) the Closing Date and ending on (and including) the last day of the calendar month in which the Closing Date occurs and (B) thereafter, the period beginning on (and including) the first day of each succeeding calendar month and ending on the earlier of (and including) (x) the last day of such calendar month and (y) the Maturity Date, and (ii) as to the First-Out Loans, (A) initially, the period beginning on (and including) the First Amendment Effective Date and ending on (and including) the last day of the calendar month in which the First Amendment Effective Date occurs and (B) thereafter, the period beginning on (and including) the first day of each succeeding calendar month and ending on the earlier of (and including) (x) the last day of such calendar month and (y) the First-Out Loan Repayment Date.

 

Investment ” in any Person, means (i) any direct or indirect purchase or other acquisition by a Loan Party of, or of a beneficial interest in, any of the Equity Interests of any other Person (other than a Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Subsidiary of the Company from any Person (other than the Company or any Guarantor Subsidiary), of any Equity Interests of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by the Company or any of its Subsidiaries to any other Person (other than the Company or any Guarantor Subsidiary), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business.  The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write‑ups, write‑downs or write‑offs with respect to such Investment.

 

Joint Venture ” shall have the meaning specified in the definition of “Permitted Servicing Joint Venture”.

 

Landlord Consent and Estoppel ” means, with respect to any Leasehold Property, a letter, certificate or other instrument in writing from the lessor under the relevant lease, pursuant to which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold Property by the Loan Party tenant, such Landlord Consent and Estoppel to be in form and substance acceptable to Collateral Agent in its reasonable discretion.

 

Laws ” means, collectively, all international, foreign, federal, state, provincial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any

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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.

 

Leasehold Property ” means the leasehold interests listed on Schedule 5.07(b)  and any leasehold interest of any Loan Party as lessee under any lease of real property, other than any such leasehold interest designated from time to time by Collateral Agent in its sole discretion as not being required to be included in the Collateral.

 

Lender ” means any Lender that is a party to this Agreement from time to time and, in the case of each such Lender, including their respective successors and assigns as permitted hereunder (each of which is referred to herein as a “Lender”).

 

LIBO Rate ” means, for any Interest Period, the rate per annum equal to the London interbank offered for deposits in Dollars for the applicable Interest Period normally published in the Money Rates section of The Wall Street Journal or another national publication selected by the Administrative Agent, two Business Days prior to the commencement of such Interest Period; provided , that in no event shall the LIBO Rate be less than 1.00%.

 

Lien ” means any assignment, mortgage, charge, pledge, lien, encumbrance, title retention agreement (including Capital Leases but excluding operating leases) or any other security interest whatsoever, howsoever created or arising, whether fixed or floating, legal or equitable, perfected or not, but specifically excludes any legal, contractual or equitable right of set‑off.

 

Liquidity ” means, as of any date of calculation, unrestricted cash and Cash Equivalents permitted in accordance with GAAP, plus any undrawn commitments, including, the Commitments, in each case as of such date.

 

Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of an Initial Loan or a First-Out Loan.

 

Loan Documents ”  means, collectively, (i) this Agreement, (ii) the Notes, (iii) [reserved], (iv) the Collateral Documents, (v) any Guarantee, (vi) any agency fee letter entered into between the Borrower and the Administrative Agent in connection with the Facility and (vii) all other instruments and documents executed and delivered from time to time by or on behalf of the Borrower or any of its Subsidiaries in connection herewith or therewith.

 

Loan Parties ” means, collectively, (i) the Borrower and (ii) each Guarantor.

 

Master Agreement ” has the meaning specified in the definition of “Swap Contract.”

 

Material Adverse Effect ” means a material adverse effect on (a) the business, assets, financial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole, (b) the rights and remedies of the Administrative Agent or any Lender under any Loan

24


 

 

Document or (c) the ability of the Borrower or any Guarantor to perform its obligations under any Loan Document; provided that for purposes of determining compliance with Article V hereof, the incurrence of obligations or liabilities (other than those permitted by Sections 7.02 and 7.03 ) by the Borrower or any of its Subsidiaries in excess of the Threshold Amount shall be deemed to result in a Material Adverse Effect.

 

Material Agreements ” means, collectively, (a) the agreements which are listed in Schedule 5.19 and (b) all other agreements to which any Loan Party or any of its properties are bound, from time to time, the absence or termination of any of which would reasonably be expected to result in a Material Adverse Effect.

 

Material Owned Property ” means (i) the real properties owned by any Loan Party listed on Schedule 5.07(b)  and (ii) any other real property owned by any Loan Party with a fair market value in excess of $1,000,000.

 

Maturity Date ” means December 16, 2021.

 

Maximum Legal Rate ” has the meaning specified in Section 3.02(b).

 

Moody’s ” means Moody’s Investors Service, Inc. and its successors.

 

Mortgage ” means collectively, the deeds of trust, trust deeds, deeds to secure debt, Landlord Consents and Estoppels and mortgages creating and evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties, substantially in the form of Exhibit K (with such changes as may be reasonably satisfactory to the Collateral Agent and its counsel to account for local law matters) or otherwise in form and substance reasonably satisfactory to the Collateral Agent, executed and delivered pursuant to Section 4.01(a)(iii)  (if applicable), Section 6.11 or Section 6.13 , in each case as amended, restated, supplemented or otherwise modified from time to time.

 

Mortgage Policies ” has the meaning specified in paragraph (h)(ii)  of the definition of “Collateral and Guarantee Requirement.”

 

Mortgaged Properties ” has the meaning specified in paragraph (h)  of the definition of “Collateral and Guarantee Requirement.”

 

Multiemployer Plan ” means a multiemployer plan, as defined in Section 4001(a)(3)  of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

 

Net Cash Proceeds ” means:

 

(a)     with respect to the Disposition of any asset by any Loan Party or any Casualty Event the excess, if any, of (i) the sum of cash and Cash Equivalents received in

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connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Borrower or any of its Subsidiaries) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is repaid (and is timely repaid) in connection therewith (other than Indebtedness under the Loan Documents), (B) the reasonable out‑of‑pocket expenses actually incurred and paid by the Borrower or any of its Subsidiaries in connection with such Disposition or Casualty Event (including, reasonable attorney’s, accountant’s and other similar professional advisor’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant, and other customary fees) to third parties (other than the Loan Parties or any of their Affiliates), (C) taxes paid or reasonably estimated to be actually payable or that are actually accrued in connection therewith with respect to the current tax year as a result of any gain recognized in connection therewith by such Person or any of the direct or indirect stockholders thereof and attributable to such Disposition or Casualty Event; provided that, if the amount of any estimated taxes pursuant to this subclause (C)  exceeds the amount of taxes actually required to be paid in cash, the aggregate amount of such excess shall constitute Net Cash Proceeds and (D) any reasonable reserve actually maintained in respect of (x) the sale price of such asset or assets established in accordance with GAAP, and (y) any liabilities associated with such asset or assets and retained by the Borrower or any of its Subsidiaries after such sale or other Disposition thereof, including pension and other post‑employment benefit liabilities and liabilities related against any indemnification obligations associated with such transaction and it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents (1) received upon the Disposition of any non‑cash consideration received by such Person in any such Disposition, and (2) received upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or, if such liabilities have not been satisfied in cash and such reserve not reversed within two years after such Disposition or Casualty Event, the amount of such reserve; and

 

(b)     with respect to the incurrence or issuance of any Indebtedness by the Borrower or any of its Subsidiaries not permitted under Section 7.03 , the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the investment banking fees, underwriting discounts, commissions, costs and other out‑of‑pocket expenses and other customary expenses (including reasonable attorney’s, accountant’s and other similar professional advisor’s fees), incurred by such Loan Party in connection with such incurrence or issuance to third parties (other than the Loan Parties or any of their Affiliates).

 

Net Working Capital ” means, at any time, Current Assets at such time minus Current Liabilities at such time.

 

Note ” means a promissory note of the Borrower payable to a Lender or its assigns, substantially in the form of Exhibit B hereto, evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender.

 

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NPL ” means the National Priorities List under CERCLA.

 

Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party or other Subsidiary arising under any Loan Document or otherwise with respect to any Loan Document entered into with a Lender, 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 other Subsidiary 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 Loan Parties under the Loan Documents (and of any of their Subsidiaries to the extent they have obligations under the Loan Documents) include (1) the obligation (including Guarantee Obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees (including, without limitation, the Upfront First-Out Fee, the Upfront Initial Fee and any accrued and uncapitalized Upfront First-Out Fee PIK Amounts and Upfront Initial Fee PIK Amounts), premiums (including, without limitation, any Prepayment Premium), the Exit Fee, Attorney Costs, indemnities and other amounts payable by any Loan Party or any other Subsidiary under any Loan Document and (2) the obligation of any Loan Party or any other Subsidiary to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party or such Subsidiary.

 

Organization Documents ” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (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, declaration, 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.

 

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Outstanding Amount ”  means, on any date, the outstanding principal amount of Loans, after giving effect to any borrowings, accretion of debt, and/or prepayments or repayments of Loans occurring on such date.

 

Participant ” has the meaning specified in Section 10.07(d) .

 

Participant Register ” has the meaning specified in Section 10.07(d) .

 

PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107‑56 (signed into law October 26, 2001)), as the same may be amended, supplemented, modified, replaced or otherwise in effect from time to time.

 

PBGC ” means the Pension Benefit Guaranty Corporation (or any successor thereof).

 

Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2)  of ERISA) other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time in the past five years.

 

Permitted Indebtedness ” has the meaning specified in Section 7.03 .

 

Permitted Liens ” means Liens permitted to be incurred pursuant to Section 7.01 .

 

Permitted Servicing Joint Venture ” means a joint venture, limited liability company or other business entity between a Loan Party and one or more third parties (each, a “ Joint Venture ”) that meets each and all of the following criteria: (a) the formation and governing documents for the Joint Venture provide that the liability of the Loan Party that is a party thereto (as among all of the parties to the Joint Venture) is expressly limited to no more than such Loan Party’s pro rata portion of the scope of services and/or other liabilities arising from the Joint Venture, (b) the terms of which formation and governing documents provide for indemnification of such Loan Party against any damages (other than special, indirect or consequential) caused by any other member of the Joint Venture, (c) the scope of the services to be provided by the Joint Venture shall be consistent with the scope of services currently provided by the Loan Parties in the ordinary course of their business (taking into account any services that may be currently subcontracted by the Loan Parties in the ordinary course of their business), (d) the Joint Venture shall be formed solely for the purpose of bidding upon and entering into one or more contracts with one or more customers upon terms that provide that the aggregate contract value as to such Loan Party under each such contract shall be calculated on a “time and materials” basis and (e) such Loan Party, the Joint Venture or the customer or customers of the Joint Venture shall obtain customary liability and commercial insurance, in amounts and from a reputable insurer as may be necessary for prudent execution of the work by the Joint Venture.

 

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Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

PIK Increase Period ” has the meaning specified in Section 2.03(b) .

 

PIK Interest ” has the meaning specified in Section 2.04(a) .

 

Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

 

Prepayment Notice ” means a notice of prepayment in respect of any voluntary or mandatory prepayment in substantially the form of Exhibit A .

 

Prepayment Premium ” has the meaning specified in Section 2.02(a) .

 

Pro Rata Share ” means, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the Facility at such time and the denominator of which is the amount of the Aggregate Commitments under the Facility at such time; provided that if any Commitment has been terminated, then the Pro Rata Share of each Lender shall be determined based on the outstanding principal amount of the Loans held by such Lender divided by the aggregate principal amount of all outstanding Loans.

 

Projections ” has the meaning specified in Section 4.01(e) .

 

Qualified Equity Interests ” means any Equity Interests that are not Disqualified Equity Interests.

 

Recipient ” means (a) the Administrative Agent or (b) any Lender, as applicable.

 

Redemption Date ” has the meaning specified in Section 2.02(a) .

 

Register ” has the meaning specified in Section 10.07(c) .

 

Registered ” means, with respect to Intellectual Property, issued by, registered with, renewed by or the subject of a pending application before any Governmental Authority or Internet domain name registrar.

 

Release ” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, leeching or migration of any Hazardous Material in or into the environment (including the abandonment or disposal of any barrels, tanks, containers or receptacles containing any Hazardous Material), or out of any vessel or facility, including the movement of any Hazardous Material through the air, soil, subsoil, surface, water, ground water, rock formation or otherwise.

 

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Reportable Event ” means with respect to any Plan any of the events set forth in Section 4043(c)  of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.

 

Required Lenders ” means, as of any date of determination, one or more Lenders having more than 50% of the Total Facility Exposure.

 

Responsible Officer ” means the chief executive officer, president, chief financial officer, chief accounting officer, treasurer, corporate controller or, except for purposes of Sections 6.03 or 6.04 , any other similar officer or a Person performing similar functions of a Loan Party (and, as to any document delivered on the Closing Date or the First Amendment Effective Date, as applicable, to the extent acceptable to the Administrative Agent in its sole discretion or required by the terms of this Agreement, any secretary or 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, 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 (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, retraction, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof) and including any thereof acquired through the exercise of warrants or rights of conversion, exchange or purchase and (c) any payment of principal, premium, if any, or interest (whether in cash, securities or other property) of any intercompany note evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(i) .

 

S&P ” means Standard & Poor’s Ratings Services LLC, a division of The McGraw‑Hill Companies, Inc., and its successors.

 

Sale Leaseback ” means any transaction or series of related transactions pursuant to which the Borrower or any of its Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

 

SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Secured Obligations ” has the meaning specified in the Security Agreement.

 

Secured Parties ” means, collectively, the Administrative Agent, the Collateral Agent and the Lenders.

 

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Securities Act ” means the Securities Act of 1933, as amended from time to time.

 

Securities Pledge Agreement ” means, collectively, (a) the Securities Pledge Agreement executed by certain Loan Parties substantially in the form of Exhibit G and (b) each Securities Pledge Agreement Supplement executed and delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

 

Securities Pledge Agreement Supplement ” has the meaning specified in Section 6.11 .

 

Security Agreement ” means, collectively, (a) the Security Agreement executed by certain Loan Parties substantially in the form of Exhibit F and (b) each Security Agreement Supplement executed and delivered pursuant to the Collateral and Guarantee Requirement or Section 6.11 .

 

Security Agreement Supplement ” has the meaning specified in Section 6.11 .

 

Servicing Joint Venture Proposal Package” means, with respect to any proposed Permitted Servicing Joint Venture, the following items, each in form reasonably satisfactory to the Administrative Agent:

 

(a)     a copy of the proposed formation and governing documents for the proposed Permitted Servicing Joint Venture, together with a description in reasonable detail of the proposed Permitted Servicing Joint Venture and the nature of the project or projects for which the proposed Permitted Servicing Joint Venture would be formed;

 

(b)     a certificate of a Responsible Officer of the Borrower certifying that:

 

(i)     such proposed Permitted Servicing Joint Venture satisfies the criteria set forth in the definition of “Permitted Servicing Joint Venture” or, if discretionary approval is required with respect to any such criteria, a request for such discretionary approval;

 

(ii)      the entry into such proposed Permitted Servicing Joint Venture would not cause or result in a Default or Event of Default; and

 

(iii)      the Loan Parties are in compliance with the Financial Covenants (both immediately before and after giving effect to the entry into the proposed Permitted Servicing Joint Venture).

 

Shareholders’ Equity ” means, as of any date of determination, consolidated shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance with GAAP.

 

Solvent ” and “ Solvency ” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property (for the avoidance of doubt, calculated to include goodwill and other intangibles) of such Person is greater than the total

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amount of liabilities, including contingent liabilities, of such Person, (b) 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, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the 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.

 

SPC ” has the meaning specified in Section 10.07(g ).

 

Specified Foreign Subsidiary ” means each of GPEG Mexico Distributing, SA de CV, Braden Manufacturing SA de CV and Global Power Equipment Group (Hong Kong) Limited.

 

Specified Subsidiary Transaction ” means the transaction set forth on Schedule 7.05 .

 

Specified Transaction ” means any Investment, Disposition, incurrence or repayment of Indebtedness, Restricted Payment, Capital Expenditure or other transaction that by the terms of this Agreement requires such test to be calculated on a “pro forma basis” or after giving “pro forma effect”.

 

Subsidiary ” of a Person means:

 

(a)     a corporation of which another person alone or in conjunction with its other Subsidiaries owns an aggregate number of voting Equity Interests sufficient to enable the election of a majority of the directors regardless of the manner in which other voting Equity Interests are voted;

 

(b)     a corporation of which another person alone or in conjunction with its other Subsidiaries has, through the operation of any agreement or otherwise, the ability to elect or cause the election of a majority of the directors or otherwise exercise control over the management and policies of such corporation;

 

(c)     any partnership of which at least a majority of the outstanding income or capital interests and/or at least a majority of the voting interests of such partnership or, in the case of a limited partnership, any general partner thereof, are owned by a person alone or in conjunction with its other Subsidiaries; and

 

(d)     any trust or other person of which at least a majority of the outstanding beneficial or ownership interests (however designated) are owned by a person alone or in conjunction with its other Subsidiaries.

 

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Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.  In no event shall the term “Subsidiary” include any Permitted Servicing Joint Venture.

 

Subsidiary Transaction ” means (i) a Specified Subsidiary Transaction or (ii) any other Disposition constituting the sale of all or substantially all of the assets or Equity Interests of a Subsidiary, the terms and conditions of which have been consented to in advance in writing by the Administrative Agent.

 

Surviving Indebtedness ” means the ABN AMRO Facility and any other Indebtedness of the Company or any of its Subsidiaries outstanding immediately before and after giving effect to the Transaction as specified on Schedule 7.03(b) .

 

Swap Contract ” means (a) any and all interest 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 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 by the applicable counterparty in accordance with the terms thereof and in accordance with customary methods for calculating mark‑to‑market values under similar arrangements by such counterparty.

 

Synthetic Debt ” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.

 

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Synthetic Lease Obligation ” means the monetary obligation of a Person under (i) a so‑called synthetic, off‑balance sheet or tax retention lease, or (ii) an agreement for the use or possession of property (including any Sale Leaseback), in each case, creating obligations that do not appear on the balance sheet of such Person but which could be characterized as the indebtedness of such Person (without regard to accounting treatment).

 

Taxes ” means any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, stamp taxes, withholdings or other charges imposed by any Governmental Authority (including additions to tax, penalties and interest with respect thereto).

 

Termination Date ” has the meaning specified in Section 9.11(a) .

 

Test Period ” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower ending on or prior to such date for which the consolidated financial statements of the Borrower and its Subsidiaries have been (or were required to have been) delivered pursuant to Section 6.01(a ) or (b ).

 

Threshold Amount ” means $500,000.

 

Total Debt ” means, as of any date, consolidated Indebtedness of the Borrower and its Subsidiaries outstanding as of such date of the type described in clauses (a), (b), (d), (e), (g), (h) (excluding undrawn amounts under outstanding letters of credit or letters of guaranty) and (i) (but only if drawn or called) of the definition thereof.

 

Total Facility Exposure ” means, as of any date of determination, the sum of (a) Total Outstandings as of such date and (b) the then unfunded Commitments (if any).

 

Total Leverage Ratio ” means, with respect to any Test Period, the ratio of (a) Total Debt as of the last day of such Test Period to (b) Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries for such Test Period.

 

Total Outstandings ” means, as of any date of determination, the then aggregate Outstanding Amount of all Loans.

 

Transaction ” means, collectively, (a) extension of Commitments under this Agreement and the funding of the Loans on the Closing Date, (b) the consummation of any other transactions in connection with the foregoing and (c) the payment of the fees and expenses, including prepayment premiums, incurred in connection with any of the foregoing.

 

Unaudited Financial Statements ” means the unaudited financial statements described in Section 4.01(e) .

 

Uniform Commercial Code ” or “ UCC ” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any security interest in any item or items of Collateral.

 

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United States ” and “ U.S. ” mean the United States of America.

 

Upfront First-Out Fee ” has the meaning specified in Section 2.05(b)(ii) .

 

Upfront First-Out Fee Payment Date ” has the meaning specified in Section 2.05(b)(ii) .

 

Upfront First-Out Fee PIK Amount ” has the meaning specified in Section 2.05(b)(ii) .

 

Upfront Initial Fee ” has the meaning specified in Section 2.05(b)(i) .

 

Upfront Initial Fee Payment Date ” has the meaning specified in Section 2.05(b)(i) .

 

Upfront Initial Fee PIK Amount ” has the meaning specified in Section 2.05(b)(i) .

 

U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(g)(ii)(B)(3) .

 

Wholly‑owned ” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly‑owned Subsidiaries of such Person.

 

Withdrawal Liability ” means the liability of a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

Withholding Agent ” means any Loan Party and the Administrative Agent.

 

Section 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 meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)     (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

(ii)     Article, Section, paragraph, clause, subclause, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

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(iii)     The term “including” is by way of example and not limitation.

 

(iv)     The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(c)     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.”

 

(d)     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.

 

(e)     Whenever the context may require, any pronoun shall include the corresponding masculine, feminine or neuter forms.

 

Section 1.03      Accounting Terms .  (a) 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 in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein; provided ,   however , that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then the Administrative Agent and the Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and the Borrower after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred and (ii) the Borrower shall provide to the Administrative Agent and the Lenders a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of any applicable ratios, baskets and other requirements hereunder before and after giving effect to such Accounting Change.

 

(b)     Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Financial Covenants shall be calculated with respect to such period and such Specified Transaction on a pro forma basis.  In addition, the parties hereto agree that following the occurrence of a Specified Transaction, the Administrative Agent and the Borrower shall use commercially reasonable efforts to amend and revise the Financial Covenants in order to reflect the impact of any Subsidiary Transaction on the operations of the Borrower and its Subsidiaries.

 

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(c)     Where reference is made to a Person “and its Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any subsidiaries other than Subsidiaries.

 

Section 1.04      Rounding .  Any financial ratios required to be satisfied in order for a specific action to be permitted under 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).

 

Section 1.05      References to Agreements, Laws, Etc .  Unless otherwise expressly provided herein, (a) references to documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, amendments and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendments and restatements, extensions, supplements and other modifications are permitted by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

Section 1.06      Times of Day .  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

Section 1.07      Timing of Payment or Performance .  When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.

 

Section 1.08      Currency Equivalents Generally .  (a) Any amount specified in this Agreement (other than in Article II ,   Article IX and Article X or as set forth in paragraph (b) of this Section) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined in a manner consistent with the definition of Exchange Rate.

 

(b)     For purposes of determining compliance under Sections 7.02 ,   7.05 and 7.06 , any amount in a currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating net income in the Borrower’s annual financial statements delivered pursuant to Section 6.01(a) ;   provided ,   however , that the foregoing shall not be deemed to apply to the determination of any amount of Indebtedness.

 

ARTICLE II

 

THE COMMITMENTS AND CREDIT EXTENSIONS

Section 2.01      The Loans.  

 

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(a)     Subject to the terms and conditions set forth herein, on the Closing Date, each Lender agrees to make initial term loans (collectively, the “ Initial Loans ”) in an aggregate principal amount not to exceed at any time outstanding the amount set forth opposite such Lender’s name in Schedule 2.01(a) (such amount being referred to herein as such Lender’s “ Initial Loan Commitment ”).  The Initial Loan Commitment of each Lender shall be automatically and permanently reduced by the principal amount of each Initial Loan made by such Lender on the Closing Date.

 

(b)     Subject to the terms and conditions set forth herein, on the First Amendment Effective Date, each Lender agrees to make first-out term loans (collectively, the “ First-Out Loans ”) in an aggregate principal amount not to exceed at any time outstanding the amount set forth opposite such Lender’s name in Schedule 2.01(b) (such amount being referred to herein as such Lender’s “ First-Out Loan Commitment ”).  The First-Out Loan Commitment of each Lender shall be automatically and permanently reduced by the principal amount of each First-Out Loan made by such Lender on the First Amendment Effective Date.

 

(c)     Amounts borrowed under this Section 2.01 and repaid or prepaid may not be re-borrowed.

 

(d)     All the outstanding principal amount of the Initial Loans, together with all accrued and unpaid interest thereon, and any fees and other amounts payable hereunder, shall be due and payable on the earlier of (i) the Maturity Date and (ii) the date of the acceleration of the Loans pursuant to Section 9.02 .  All the outstanding principal amount of the First-Out Loans, together with all accrued and unpaid interest thereon, and any fees and other amounts payable hereunder, shall be due and payable on the earlier of (x) the First-Out Loan Repayment Date and (y) the date of the acceleration of the Loans pursuant to Section 9.02 .

 

Section 2.02      Prepayments .  (a)  Optional Prepayments .  (i) The Borrower may, upon delivery of a Prepayment Notice to the Administrative Agent, at any time or from time to time voluntarily prepay, in whole or in part (in a minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount for each partial prepayment) the outstanding principal amount of the Loans on any Business Day (the “ Redemption Date ”) for an amount equal to the Loans being prepaid on such Redemption Date, plus any accrued but unpaid interest on the aggregate principal amount of the Loans being prepaid, plus, solely in the case of the Initial Loans, the Prepayment Premium.  The applicable “ Prepayment Premium ” in respect of any prepayment of the Initial Loans shall be an amount calculated as follows:

 

(ii)     If the Redemption Date occurs:

 

(A)     on or prior to the first anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to three percent (3%) of the aggregate outstanding principal amount of the Initial Loans being prepaid on such Redemption Date;

 

(B)     after the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date, the Prepayment Premium shall be an amount

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equal to two percent (2%) of the aggregate outstanding principal amount of the Initial Loans being prepaid on such Redemption Date;

 

(C)     after the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to one percent (1%) of the aggregate outstanding principal amount of the Initial Loans being prepaid on such Redemption Date; and

 

(D)     after the third anniversary of the Closing Date and at any time thereafter, the Prepayment Premium shall be zero.

 

Notwithstanding any of the foregoing to the contrary, with respect to any prepayment made in connection with a Disposition permitted pursuant to Section 7.05(j) , if the Redemption Date occurs on or prior to the third anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to one percent (1%) of the aggregate outstanding principal amount of the Initial Loans being prepaid on such Redemption Date.

 

(iii)     Any Prepayment Notice must be received by the Administrative Agent not later than 12:00 noon (New York, New York time) three (3) Business Days prior to any Redemption Date and shall specify the date and amount of such prepayment.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share 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.  Each prepayment of Loans pursuant to this Section 2.02(a) shall be paid to the Lenders in accordance with their respective Pro Rata Shares as set forth in Section 2.02(b)(vii) below. 

 

(iv)     No partial prepayment shall be made under this  Section 2.02(a) in connection with any event described in Section 2.02(b) .

 

(b)      Mandatory Prepayments .  (i) As promptly as reasonably practicable, but in any event within five (5) Business Days after the date that is ninety (90) days following the end of each Fiscal Year, the Borrower shall cause to be prepaid an aggregate principal amount of Loans equal to (A) 100% (such percentage as it may be reduced as described below, the “ ECF Percentage ”) of Excess Cash Flow, if any, for the Fiscal Year covered by the financial statements required to be delivered pursuant to Section 6.02(a)   minus (B) the sum of all voluntary prepayments of Loans (except to the extent that such prepayments are financed, directly or indirectly, with long‑term Indebtedness or non‑ordinary course Dispositions of property); provided that the ECF Percentage (before giving effect to the foregoing reductions, if any) shall be reduced to 75% if the Total Leverage Ratio is less than 2.50:1.00 as of the end of the Fiscal Year covered by such financial statements and provided   further that so long as no Default or Event of Default has occurred and is continuing, no such prepayments shall be required unless Excess Cash Flow for such Fiscal Year equals or exceeds $1,000,000, at which point the Borrower shall cause to be prepaid an aggregate principal amount of Loans equal to the applicable percentage of Excess Cash Flow as set forth herein.

 

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(ii)     If the Borrower or any of its Subsidiaries Disposes of any property (excluding Dispositions permitted pursuant to Section 7.05 (other than pursuant to Section 7.05(h) ,   (j) and (k) (other than with respect to an Initial Subsidiary Transaction)), the Borrower shall cause to be prepaid, in accordance with Section 2.02(b)(vii) , an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds realized or received in connection with such Disposition, plus the Prepayment Premium on the principal amount of the Initial Loans (if any) being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds; provided (i) so long as no Default or Event of Default shall have occurred and be continuing and (ii) to the extent that aggregate Net Cash Proceeds from the Closing Date through the applicable date of determination do not exceed $1,500,000, the Borrower shall have the option, directly or through one or more of its Subsidiaries, to invest such Net Cash Proceeds within one hundred eighty (180) days of receipt thereof in productive assets of the general type used in the business of the Borrower and its Domestic Subsidiaries.  If the Borrower or any of its Subsidiaries Disposes of any property in connection with an Initial Subsidiary Transaction pursuant to Section 7.05(k) , the Borrower shall cause to be prepaid, an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds realized or received in connection with such Initial Subsidiary Transaction, plus the Upfront First-Out Fee and the Upfront Initial Fee, together with the accrued and uncapitalized Upfront First-Out Fee PIK Amount and Upfront Initial Fee PIK Amount, as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.  For the avoidance of doubt, any prepayment made pursuant to this Section 2.02(b)(ii) as a result of a Disposition shall not be deemed to be a consent to any such Disposition or a cure or waiver of any Event of Default which occurs in connection with such Disposition, it being understood that such Event of Default may only be waived with the express consent of Required Lenders.

 

(iii)     If any Casualty Event occurs, the Borrower shall cause to be prepaid an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds realized or received in connection with such Casualty Event, as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds; provided , (i) so long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the extent that aggregate Net Cash Proceeds from the Closing Date through the applicable date of determination do not exceed $500,000, the Borrower shall have the option, directly or through one or more of its Subsidiaries, to invest such Net Cash Proceeds within one hundred eighty (180) days of receipt thereof in productive assets of the general type used in the business of the Borrower and its Domestic Subsidiaries, which investment may include the repair, restoration or replacement of the applicable assets thereof.

 

(iv)     If the Borrower or any of its Subsidiaries incurs or issues any Indebtedness (including Debt Equivalents) not expressly permitted to be incurred or issued pursuant to Section 7.03 ,  the Borrower shall cause to be prepaid, in accordance with Section 2.02(b)(vii) , an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds received therefrom, plus the Prepayment Premium on the principal amount of the Initial Loans (if any) being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant

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payment date shall be deemed to be the “Redemption Date” for purposes of such calculation) as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.

 

(v)     If the Borrower or any of its Subsidiaries receives any tax refunds and/or any extraordinary receipts in excess of $500,000 in the aggregate in any Fiscal Year, the Borrower shall cause to be prepaid an aggregate principal amount of Loans in the amount of such tax refunds and/or extraordinary receipts as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt thereof.

 

(vi)     If the Borrower or any of its Subsidiaries receives Net Cash Proceeds from a capital contribution or issuance of any Equity Interests of the Borrower or any of its Subsidiaries (other than Equity Interests issued (i) pursuant to any employee stock or stock option compensation plan, (ii) by any Subsidiary to the Borrower or any other Subsidiary to the extent permitted by Section 7.02 , or (iii) for purposes approved in writing by the Administrative Agent), the Borrower shall cause to be prepaid, in accordance with Section 2.02(b)(vii) , an aggregate amount of the Obligations equal to 100% of all such Net Cash Proceeds received therefrom, plus the Prepayment Premium on the principal amount of the Initial Loans (if any) being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation) as promptly as reasonably practicable, but in any event, prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds. 

 

(vii)     So long as no Default or Event of Default has occurred and is continuing, (x) each voluntary and mandatory prepayment of Loans pursuant to Section 2.02(a) and this Section 2.02(b) (excluding any Disposition made pursuant to Section 7.05(k) in connection with an Initial Subsidiary Transaction) shall be applied as follows:

 

First , to the payment of all outstanding fees and all expenses specified in Section 8.03 ;

 

Second , to the payment of that portion of the Obligations constituting accrued, unpaid interest (including, but not limited to, accrued but uncapitalized PIK Interest) and the Exit Fee, in each case in respect of the First-Out Loans;

 

Third , to the payment of that portion of the Obligations constituting accrued, unpaid interest (including, but not limited to, accrued but uncapitalized PIK Interest) and the Prepayment Premium (if any), in each case in respect of the Initial Loans;

 

Fourth , shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the First-Out Loans; and

 

Fifth , shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the Initial Loans;

 

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(y)  the Net Cash Proceeds from a mandatory prepayment of Loans pursuant to this Section 2.02(b) received in connection with an Initial Subsidiary Transaction shall be applied as follows:

 

First , to the payment of all outstanding fees and all expenses specified in Section 8.03 ;

 

Second , to the payment of that portion of the Obligations constituting (A) the Upfront First-Out Fee, together with all accrued and uncapitalized Upfront First-Out Fee PIK Amounts and (B) accrued, unpaid interest (including, but not limited to, accrued but uncapitalized PIK Interest)   in respect of the First-Out Loans and (C) the Exit Fee;

 

Third , to the payment of that portion of the Obligations constituting (A) the Upfront Initial Fee, together with all accrued and uncapitalized Upfront Initial Fee PIK Amounts and (B) accrued, unpaid interest (including, but not limited to, accrued but uncapitalized PIK Interest) in respect of the Initial Loans;

 

Fourth , shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the First-Out Loans; and

 

Fifth , shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the Initial Loans.

 

(viii)     The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to clauses (i) ,   (ii) ,   (iii) ,   (iv) ,   (v) and (vi) of this Section 2.02(b)  at least three (3) Business Days prior to the date of such prepayment pursuant to a Prepayment Notice.  Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment.  The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s Prepayment Notice and of such Lender’s Pro Rata Share of the prepayment.

 

(c)      Interest .  All prepayments under this Section 2.02 shall be accompanied by all accrued interest thereon.

 

Section 2.03      Repayment of Loans .  (a) The Borrower shall repay to the Administrative Agent, for the ratable account of the Lenders (i) commencing on June 30, 2018 through March 31, 2019, in consecutive quarterly installments to be paid on the last day of each fiscal quarter of the Borrower, an amount equal to 1.25% of the original aggregate principal amount of the Loans, (ii) commencing on June 30, 2019 and thereafter in consecutive quarterly installments to be paid on the last day of each fiscal quarter of the Borrower, equal to 1.875% of the original aggregate principal amount of the Loans and (iii) on the Maturity Date, the remaining Obligations (including, without limitation, all accrued and unpaid principal and interest on the principal amounts of the Loans (including any accrued but uncapitalized PIK Interest)).  For the avoidance of doubt, scheduled repayments pursuant to this Section 2.03 shall be reduced as a result of the application of prepayments in accordance with Section 2.02 solely to the extent of any such amounts applied to the prepayment of the Loans.

 

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(b)     The Borrower shall repay to the Administrative Agent, for the ratable account of the Lenders, (i) a principal amount equal to $25,000,000 on January 1, 2018 plus (ii) the Upfront Initial Fee, together with all accrued and uncapitalized Upfront Initial Fee PIK Amounts (the “ 2018 Amortization Payment ”); provided ,   however , that the Borrower may elect to defer the 2018 Amortization Payment to a later date, including the Maturity Date; provided   further   however, that the Borrower shall not be required to pay the 2018 Amortization Payment in the event that (i) an Initial Subsidiary Transaction occurs on or prior to January 1, 2018 and (ii) such Initial Subsidiary Transaction is in an aggregate amount greater than $25,000,000.  In the event that the Borrower elects to defer the 2018 Amortization Payment, the PIK Interest payable pursuant to Section 2.04 shall increase by an additional 5% per annum during the period commencing on January 1, 2018 through the Interest Payment Date occurring immediately prior to the date the 2018 Amortization Payment is paid (such period, the “ PIK Increase Period ”).

 

(c)     The Borrower shall repay to the Administrative Agent, for the ratable account of the Lenders, on the First-Out Loan Repayment Date, an amount equal to (i) the aggregate principal amount of the First-Out Loans, plus (ii) all accrued and unpaid principal and interest on the principal amounts of the First-Out Loans (including any accrued but uncapitalized PIK Interest), plus (iii) the Upfront First-Out Fee, together with all accrued and uncapitalized Upfront First-Out Fee PIK Amounts.  For the avoidance of doubt, scheduled repayments pursuant to this Section 2.03 shall be reduced as a result of the application of prepayments in accordance with Section 2.02 solely to the extent of any such amounts applied to the prepayment of the First-Out Loans.

 

Section 2.04      Interest .  (a) Subject to the provisions of Section 2.04(b) , each Loan shall bear interest on the outstanding principal amount thereof for each Interest Period in an amount equal to the LIBO Rate plus the sum of: (i) 9.00% per annum payable in cash (“ Cash Interest ”) and (ii) (x) 10.00% per annum and (y) during the PIK Increase Period, 15% per annum, in each case of clauses (ii)(x) and (ii)(y) in an amount payable-in-kind (“ PIK Interest ”).

 

(b)     Commencing upon the occurrence and during the continuance of any Event of Default, the Borrower shall pay interest on (i) the principal amount of the Loans and (ii) to the extent then due and payable all other outstanding Obligations hereunder, in each case under clauses (i) and (ii) at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.  Accrued and unpaid interest on past due amounts (including interest on past due interest to the fullest extent permitted by applicable Laws) 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.  All Cash Interest shall be payable in cash to the Administrative Agent to be allocated pursuant to Section 2. 08.  All PIK Interest shall accrue and be added and capitalized to the outstanding principal balance of the Loans on each Interest Payment Date, and the principal amount of the Loans shall be increased by such PIK Interest amount for all purposes under the Loan Documents.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after any judgment.

 

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Section 2.05      Fees .  (a) The Borrower shall pay to the Agents a non-refundable annual administration fee equal to $25,000, in the aggregate, for agency services provided under this Agreement.  This fee shall be in all respects fully earned, due and payable on the Closing Date directly from the proceeds of the Loan and thereafter, shall be payable by the Borrower in advance on each anniversary of the Closing Date during the term of this Agreement.

 

(b)     (i)     The Borrower agrees to pay to the Administrative Agent for distribution to the Lenders in accordance with each Lenders’ Pro Rata Share, an upfront fee equal to 7% of the Initial Loan Commitments (the “ Upfront Initial Fee ”).  The Upfront Initial Fee is earned on the Closing Date.  Until such time as the Upfront Initial Fee Payment Date has occurred, the Upfront Initial Fee shall bear interest in an amount equal to the LIBO Rate plus 19% per annum (the “ Upfront Initial Fee PIK Amount ”).  The Upfront Initial Fee PIK Amount shall accrue and be added and capitalized to the outstanding amount of the Upfront Initial Fee on each Interest Payment Date, and the balance of the Upfront Initial Fee shall be increased by the Upfront Initial Fee PIK Amount for all purposes under the Loan Documents.  The Upfront Initial Fee, together with all accrued and uncapitalized Upfront Initial Fee PIK Amounts shall be payable upon the earliest of (i) the date that the Borrower is required to repay the Obligations with the Net Cash Proceeds of an Initial Subsidiary Transaction pursuant to Section 2.02(b)(ii) , (ii) the date that the 2018 Amortization Payment is paid, (iii) the Maturity Date and (iv) the date of acceleration of the Loans pursuant to Section 9.02 (the “ Upfront Initial Fee Payment Date ”).

 

(ii)     The Borrower agrees to pay to the Administrative Agent for distribution to the Lenders in accordance with each Lenders’ Pro Rata Share, an upfront fee equal to 7% of the First-Out Loan Commitments (the “ Upfront First-Out Fee ”).  The Upfront First-Out Fee is earned on the First Amendment Effective Date.  Until such time as the Upfront First-Out Fee Payment Date has occurred, the Upfront First-Out Fee shall bear interest in an amount equal to the LIBO Rate plus 19% per annum (the “ Upfront First-Out Fee PIK Amount ”).  The Upfront First-Out Fee PIK Amount shall accrue and be added and capitalized to the outstanding amount of the Upfront First-Out Fee on each Interest Payment Date, and the balance of the Upfront First-Out Fee shall be increased by the Upfront First-Out Fee PIK Amount for all purposes under the Loan Documents.  The Upfront First-Out Fee, together with all accrued and uncapitalized Upfront First-Out Fee PIK Amounts shall be payable upon the earlier to occur of (i) First-Out Repayment Date and (ii) the date of acceleration of the Loans pursuant to Section 9.02 (the “ Upfront First-Out Fee Payment Date ”).

 

(c)     On the First-Out Loan Repayment Date or on the earlier repayment of the Loans in full (whether voluntarily, upon the First-Out Repayment Date or upon acceleration pursuant to Section 9.02 ), the Borrower agrees to pay to the Administrative Agent for distribution to the Lenders in accordance with each Lender’s Pro Rata Share of the First-Out Loans a fee equal to 7% of the aggregate outstanding principal amount of the First-Out Loans (the “ Exit Fee ”). 

 

Section 2.06      Computation of Interest and Fees .  All computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed.  Interest shall accrue on each Loan for the day on which such Loan is made, and shall not accrue on such Loan, or any portion thereof, for the day on which such Loan or such portion

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is paid; provided that any such Loan that is repaid on the same day on which it is made shall 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.

 

Section 2.07      Evidence of Indebtedness .  (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender.  The accounts or records maintained by each Lender shall be prima   facie evidence 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 Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

 

(b)     Entries made in good faith by each Lender in its account or accounts pursuant to Section 2.07(a) , shall be prima   facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of such Lender to make an entry, or any finding that an entry is incorrect, in such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.

 

Section 2.08      Payments Generally .  (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, 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 applicable Administrative Agent’s Office and in immediately available funds not later than 3:00 p.m. (New York City time) on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Applicable Lending Office.  All payments received by the Administrative Agent after 3:00 p.m. (New York City time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

 

(b)     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; provided that if such extension would cause payment of interest on or principal of Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

 

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(c)     Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:

 

(i)     if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate; and

 

(ii)     if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “ Compensation Period ”) at a rate per annum equal to the Federal Funds Rate.  When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing.  If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, then in the event the Administrative Agent has funded a Loan in advance of receipt of funds from a defaulting Lender or otherwise made a payment to the Borrower on behalf of such defaulting Lender, the Administrative Agent may make a demand therefor upon the Borrower and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing.  Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by a Lender hereunder.

 

A notice by the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.08(c) shall be conclusive, absent manifest error.

 

(d)     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 Credit Extension set forth in Article IV or in the First Amendment, as applicable, are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

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(e)     The obligations of the Lenders hereunder to make Loans are several and not joint.  The failure of any Lender to make any Loan shall not relieve any other Lender of its corresponding obligation to do so on such date, and neither the Administrative Agent nor any Lender shall be responsible for the failure of any other Lender to make its Loan.

 

(f)     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.

 

(g)     Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03 .  If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the Outstanding Amount of all Loans outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.

 

Section 2.09      Sharing of Payments .  If, other than as expressly provided elsewhere herein (including, without limitation, in Section 10.07 ), any Lender shall obtain on account of the Loans made by it any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon.  The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09 ) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.  Each Lender that purchases a participation pursuant to this Section 2.09 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations

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purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

 

ARTICLE III

 

TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

 

Section 3.01      Taxes

 

(a)       Defined Terms .  For purposes of this Section 3.01 , the term “applicable law” includes FATCA.

 

(b)      Payments Free of Taxes .  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 law.  If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(c)      Payment of Other Taxes by the Loan Parties .  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.

 

(d)      Indemnification by the Loan Parties .  The Loan Parties shall jointly and severally indemnify each Recipient, 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) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any 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 (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(e)      Indemnification by the Lenders .  Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (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), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.07 (d) relating to the maintenance of a Participant

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Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent 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 hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

 

(f)      Evidence of Payments .  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01 , such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(g)      Status of Lenders .  (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(g)(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.

 

(ii)      Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower:

 

(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 copies 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

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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:

 

(1)      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 copies of IRS Form W-8BEN (or W-8BEN-E, as applicable) 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 (or W-8BEN-E, as applicable) 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;

 

(2)      executed copies of IRS Form W-8ECI;

 

(3)      in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed copies of IRS Form W-8BEN (or W-8BEN-E, as applicable); or

 

(4)      to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or W-8BEN-E, as applicable), a U.S. Tax Compliance Certificate, 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 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 copies 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

 

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(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 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 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.

 

Each Lender agrees that if any form or certification it previously delivered 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.

 

(h)      Treatment of Certain Refunds .  If any party determines, in its reasonable discretion, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(i)      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, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

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Section 3.02      Illegality .  (a) If any Lender determines that any Law has made it unlawful, or that any Governmental Authority that is a court, statutory board or commission has asserted that it is unlawful, for any Lender or its Applicable Lending Office to make, maintain or fund the Loans (and, in the opinion of such Lender, the designation of a different lending office would either not avoid such unlawfulness or would be disadvantageous to such Lender), then such Lender shall promptly notify Borrower thereof following which (a) the Lender’s Commitment shall be suspended until such time as such Lender may again make and maintain the Loans hereunder and (b) if such Law shall so mandate, the Loans held by such Lender shall be prepaid by Borrower on or before such date as shall be mandated by such Law in an amount equal to 100% of the aggregate principal amount of Loans held by such Lender, plus any accrued but unpaid interest on the aggregate principal amount of the Loans being prepaid, plus  the Prepayment Premium (if any) on the principal amount of such Loans being prepaid (calculated in accordance with Section 2.02(a)(ii) , it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation).

 

(b)      Maximum Legal Rate .  No agreements, conditions, provisions or stipulations contained in this Agreement or any other instrument, document or agreement between the Loan Party and any Agent or any Lender or default of the Loan Parties, or the exercise by any Agent or any Lender of the right to accelerate the payment of the maturity of principal and interest, or to exercise any option whatsoever contained in this Agreement or any other Loan Document, or the arising of any contingency whatsoever, shall entitle any Lender to contract for, charge, or receive, in any event, consideration for the use, forbearance or detention of money (“ interest ”) at a rate exceeding the maximum rate of interest permitted by applicable state or federal law in effect from time to time (hereinafter “ Maximum Legal Rate ”).  In no event shall the Loan Parties be obligated to pay interest at any rate exceeding such Maximum Legal Rate and all agreements, conditions or stipulations, if any, which may in any event or contingency whatsoever operate to bind, obligate or compel the Loan Parties to pay a rate of interest exceeding the Maximum Legal Rate, shall be without binding force or effect, at law or in equity, to the extent only of the excess of interest determined at a rate over such Maximum Legal Rate.  In the event any interest is contracted for, charged or received at any rate in excess of the Maximum Legal Rate (“ Excess ”), each Loan Party acknowledges and stipulates that any such contract, charge, or receipt shall be the result of an accident and bona fide error, and that any Excess received by any Lender shall be applied, first , to reduce the principal then unpaid hereunder in respect of the First-Out Loans; second , to reduce the principal then unpaid hereunder in respect of the Initial Loans; third , to reduce the other Obligations in respect of the First-Out Loans; fourth , to reduce the other Obligations in respect of the Initial Loans; and fifth , returned to the Loan Parties, it being the intention of the parties hereto not to enter at any time into a usurious or otherwise illegal relationship.  Each Loan Party recognizes that, with fluctuations in the LIBO Rate and the Maximum Legal Rate, such a result could inadvertently occur.  By the execution of this Agreement, the Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Loan Party of such Excess, and (ii) such Loan Party shall not seek or pursue any other remedy, legal or equitable, against any Agent or any Lender, based in whole or in part upon the contracting for, charging or receiving of any interest in excess of the maximum authorized or the receiving of any interest in excess of the maximum authorized by applicable law.  To the extent applicable, for the purpose of determining whether or not any Excess has been contracted for, charged or received by any Agent or any

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Lender, all interest at any time contracted for, charged or received by the Administrative Agent and any Lender in connection with this Agreement shall be amortized, prorated, allocated and spread in equal parts during the full stated term of this Agreement and otherwise as provided by applicable Law.  If, as a result of any circumstances whatsoever, fulfillment of any provision hereof or of any related agreement, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by applicable usury law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity.

 

Section 3.03      Increased Cost and Reduced Return; Capital Adequacy .  (a) If any Lender reasonably determines that as a result of the introduction of or any Change in Law or a change in the interpretation of any Law with which such Lender or any lending office of such Lender, if any, is required to comply, in each case, after the date hereof, there shall be any increase in the cost to such Lender agreeing to make, making or maintaining any Loan, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.03(a)  any such increased costs or reduction in amount resulting from (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or (iii) Other Connection Taxes), then from time to time within fifteen (15) days after demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.04 ), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction. 

 

(b)     If any Lender reasonably determines that the introduction of any Law regarding (i) capital adequacy or any change therein or in the interpretation thereof or (ii) liquidity requirement, or in each case any change therein or in the interpretation thereof with which such Lender (or its Applicable Lending Office) is required to comply, in each case after the date hereof, would have the effect of reducing the rate of return on the capital of such Lender, or any corporation controlling such Lender, to a level below that which such Lender, or the corporation controlling such Lender, could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of any corporation controlling such Lender with respect to capital adequacy) as a consequence of such Lender’s obligations hereunder, then from time to time upon demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.04 ), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such demand.

 

(c)     Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.03 shall not constitute a waiver of such Lender’s right to demand such compensation.

 

(d)     If any Lender requests compensation under this Section 3.03 , then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another Applicable Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Applicable Lending Office(s) to suffer no material economic, legal or regulatory

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disadvantage; and provided   further that nothing in this Section 3.03(d)  shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.03(a) ,   (b) or (c) .

 

Section 3.04      Matters Applicable to All Requests for Compensation .  The Administrative Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder, which shall be conclusive absent manifest error.  In determining such amount, the Administrative Agent or such Lender, as the case may be, may use any reasonable averaging and attribution methods.  With respect to any Lender’s claim for compensation under Section 3.01 ,   Section 3.02 or Section 3.03 , the Borrower shall not be required to compensate such Lender for any amount incurred more than two hundred and seventy (270) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that if the circumstance giving rise to such claim is retroactive, then such 270‑day period referred to above shall be extended to include the period of retroactive effect thereof.

 

Section 3.05      Surviva l.  All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.

 

ARTICLE IV

 

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

 

Section 4.01      Conditions to the Closing Date .  The obligation of each Lender to make the Loans hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:

 

(a)     The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:

 

(i)     executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;

 

(ii)     an original Note executed by the Borrower in favor of each Lender that has requested in writing a Note;

 

(iii)     such certificates (including a certificate substantially in the form of Exhibit I ) of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably 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

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Documents to which such Loan Party is a party or is to be a party on the Closing Date;

 

(iv)     an opinion of (i) Thompson Hine LLP, counsel to the Loan Parties and (ii) Van Valer Law Firm, LLP, Indiana counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent;

 

(v)     a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction and the other transactions contemplated hereby and thereby, from the chief financial officer of the Borrower in substantially the form of Exhibit J hereto;

 

(vi)     copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Liens permitted under Section 7.01 ) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and

 

(vii)     (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect, and, where available, bring down certificates, for each Loan Party.

 

(b)     As of the Closing Date, after giving effect to the Transaction, the Borrower and each of its Subsidiaries will have no indebtedness other than the Facility, the Existing Letters of Credit, and any Surviving Indebtedness specified on Schedule 7.03(b) .  All amounts due or outstanding in respect of any Indebtedness other than the Facility, the Existing Letters of Credit and any Surviving Indebtedness specified on Schedule 7.03(b) shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent. 

 

(c)     In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received: 

 

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(i)     evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);

 

(ii)     a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);

 

(iii)     opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and

 

(iv)     evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party, and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(i) ) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.

 

(d)     [Reserved].

 

(e)     The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income, Shareholders’ Equity and cash flows of the Company and unaudited consolidating balance sheets and related statements of income  

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for the Fiscal Year of the Company ended December 31, 2016, each in draft form, (ii) unaudited consolidated and consolidating balance sheets and related statements of income and cash flows of the Company for each subsequent fiscal quarter after December 31, 2014 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income of the Company for each fiscal month after December 31, 2014 ended at least thirty-one (31) days before the Closing Date and (iv) forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements on a monthly basis for Fiscal Year 2017, on a quarterly basis for Fiscal Year 2018 and on an annual basis for Fiscal Year 2019 (“ Projections ”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time of such preparation.

 

(f)     The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Borrower and its Subsidiaries in scope and determination satisfactory to the Administrative Agent and the Lenders in their sole discretion.

 

(g)     Payment by the Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors to the Administrative Agent and the Lenders) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.

 

(h)     The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.

 

(i)     The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti‑money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.

 

(j)      [Reserved].

 

(k)     The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension (before and after giving effect to such Credit Extension); provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be 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 shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

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(l)     No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom.

 

Section 4.02      Conditions to All Credit Extensions .  The obligation of each Lender to make a Credit Extension (other than with respect to the Initial Loans) hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:

 

(a)     The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the First Amendment Effective Date (before and after giving effect to the proposed Credit Extension); provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be 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 shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

(b)     No Default or Event of Default shall exist, or would result from the proposed Credit Extension or from the application of the proceeds therefrom.

 

(c)     Payment by the Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors to the Administrative Agent and the Lenders) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.

 

ARTICLE V

 

REPRESENTATIONS AND WARRANTIES

 

The Borrower represents and warrants to the Agents and the Lenders that:

 

Section 5.01      Existence, Qualification and Power; Compliance with Laws .  Each Loan Party and each of its Subsidiaries (a) is duly incorporated, organized or formed, and validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization (to the extent such concept exists in such jurisdiction), (b) has all requisite power and authority 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, (c) is duly qualified and in good standing (to the extent such concept exists) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), orders, writs, injunctions and orders and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted, except, with respect to the foregoing clauses (c), (d) and (e), as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

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Section 5.02      Authorization; No Contravention .  The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transaction, (a) are within such Loan Party’s corporate or other powers, (b) have been duly authorized by all necessary corporate or other organizational action, and (c) do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) except as set forth on Schedule 5.02 , result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01 ), or require any payment to be made under (w) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries, (x) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject or (y) any Material Agreement, or (iii) violate any material applicable Law.

 

Section 5.03      Governmental Authorization; Other Consents .  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document to which such Loan Party is a party, or for the consummation of the Transaction, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Collateral Agent, the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which are set forth on Schedule 5.03 or have been duly obtained, taken, given or made and are in full force and effect and (iii) such approvals, consents, exemptions, authorizations, actions, notices and filings the failure to obtain or make would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.  All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.

 

Section 5.04      Binding Effect .  This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto.  This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity and principles of good faith and fair dealing.

 

Section 5.05      Financial Statements; No Material Adverse Effect .  (a) The Unaudited Financial Statements (A) fairly present in all material respects the financial condition of the Company as of the dates thereof and the Company’s results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered

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thereby, except, in the case of the Unaudited Financial Statements, changes resulting from customary year-end adjustments consistent with past practice and the absence of footnotes and (B) show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date hereof that are required to be reflected on a balance sheet prepared in accordance with GAAP, except for such Indebtedness and other liabilities incurred since the date of the Unaudited Financial Statements in the ordinary course of business.

 

(b)     Since December 31, 2016, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.

 

(c)     The Projections furnished to the Administrative Agent prior to the Closing Date are based on good faith estimates and assumptions made by the management of the Borrower; provided , the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the differences may be material;   provided   further , as of the Closing Date, management of the Borrower believed that the Projections were reasonable and attainable.

 

(d)     (i) The audited consolidated financial statements of the Borrower and its Subsidiaries most recently delivered pursuant to Section 6.01(a)  and Section 6.01(g) and (ii) the unaudited consolidated financial statements of the Borrower and its Subsidiaries most recently delivered pursuant to Section 6.01(b) , and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such periods (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (B) fairly present in all material respects 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 unaudited financial statements, to the absence of footnotes and to customary year‑end adjustments consistent with past practice.

 

(e)     The consolidated forecasted balance sheets, statements of income and statements of cash flows of the Borrower and its Subsidiaries delivered to the Lenders pursuant to Section 6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of the conditions existing at the time of delivery of such forecasts; it being understood that actual results may vary from such forecasts and that such variations may be material.

 

Section 5.06      Litigation .  Except as set forth on Schedule 5.06 , there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or its Subsidiaries, including any Environmental Action, pending or, to any Loan Party’s knowledge, threatened before any Governmental Authority or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transaction.

 

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Section 5.07      Ownership of Property; Liens

 

(a)     Each Loan Party and its Subsidiaries is the legal and beneficial owner of the Collateral pledged by it free and clear of any Lien, except for the Liens and security interests created or permitted under the Loan Documents including, any Liens permitted under Section 7.01 .

 

(b)     Each Loan Party and each of its Subsidiaries has good and marketable title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all real property used in the ordinary conduct of its business, free and clear of all Liens except for defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 7.01 and except where the failure to have such title or other interest would not reasonably be expected to have a Material Adverse Effect.  Set forth on Schedule 5.07(b) hereto is a complete and accurate list of all real property owned by any Loan Party or any of its Subsidiaries, showing, as of the date hereof, the street address, state and any other relevant jurisdiction, record owner and fair market value.  Set forth on Schedule 5.07(b) hereto is a complete and accurate list of all Leasehold Property under which any Loan Party or any Subsidiary is the tenant, showing as of the date hereof the street address, state and any other relevant jurisdiction, parties thereto, sublessee (if any), expiration date and annual base rental cost thereof.

 

(c)     Except for the properties set forth on Schedule 5.07(b) , as of the Closing Date, no Loan Party or any of its Subsidiaries owns any Material Owned Property or leases any Leasehold Property.

 

Section 5.08      Perfection of Security Interests . Upon the making of the filings and taking of the other actions set forth on Schedule 5.08 , all filings and other actions necessary to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Collateral Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and having priority over all other Liens on the Collateral except in the case of (a) non‑consensual Liens permitted under Section 7.01 , to the extent any such Liens would have priority over the Liens in favor of the Collateral Agent pursuant to any applicable Law, and (b) Liens not required to be perfected by control or possession pursuant to the Collateral and Guarantee Requirement to the extent that all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken.

 

Section 5.09      Environmental Compliance .  Except as specifically set forth on Schedule 5.09 :

 

(a)     The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all Environmental Laws and Environmental Permits, all past non‑compliance with such Environmental Laws and Environmental Permits has been fully resolved without ongoing obligations, costs or liabilities in the aggregate, in excess of the Threshold Amount, and no circumstances exist that would be reasonably likely to (A) to the knowledge of the Loan Parties, form

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the basis of an Environmental Action against any Loan Party or any Subsidiary or any of their properties or (B) cause any such property to be subject to any remedial action requirement or any restrictions on ownership, occupancy, use or transferability under any Environmental Law, which, in each case, individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect.

 

(b)     None of the properties currently or, to the knowledge of the Loan Parties, formerly, owned or operated by any Loan Party or any of its Subsidiaries is listed or, to such Loan Party’s or each of its Subsidiaries’ knowledge, proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list; there are no, and, to the knowledge of the Loan Parties, never have been, any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of its knowledge, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries, in each case for which any Loan Party or any of its Subsidiaries is liable and that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect; and other than in compliance with applicable Environmental Laws, there is no friable asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of by any Loan Party or any of its Subsidiaries on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries other than in material compliance with applicable Environmental Laws and that, individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect.

 

(c)     Neither any Loan Party nor any of its Subsidiaries is undertaking, or is required either contractually or by any Environmental Law to undertake, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened Release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law and that individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and all Hazardous Materials generated, used, treated, handled or stored at, or transported by or on behalf of any Loan Party or any of its Subsidiaries at, to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have, to the knowledge of the Loan Parties, been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries.

 

(d)     The Borrower and each of its Subsidiaries has obtained, maintained and timely renewed all material Environmental Permits required for ownership and operation of its property and business as presently conducted and there are no proceedings pending, or to the Borrower’s knowledge, threatened, to revoke, review or materially modify any such Environmental Permits.  Neither the Borrower nor any of its Subsidiaries has received any written notification pursuant to any Environmental Law or otherwise has  

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knowledge that any work, repairs, construction or Capital Expenditures are required to be made to be in or continue to be in compliance with any Environmental Law or any material Environmental Permit that individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

(e)     Except as would not reasonably be expected to result in a material liability, no Loan Party nor any of its Subsidiaries has contractually assumed any liability or obligation to investigate or remediate any property under or relating to any applicable Environmental Law.

 

(f)     Borrower has provided Lenders with true and complete copies of all environmental reports, audits and sampling results in its possession or control.

 

(g)     Nothing contained in this Section 5.09 is intended to apply to any action, suit, investigation, litigation or proceeding (including any Environmental Action) relating to exposure to asbestos, in any form, or any asbestos containing materials.

 

Section 5.10      Taxes .  (a) Each of the Borrower and each of its Subsidiaries has timely filed all income and all other material tax returns and reports required to be filed, and has timely paid all Taxes (whether or not shown on such tax returns or reports) and all other amounts of federal, provincial, state, municipal, foreign 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 set forth on  Schedule 5.10(a)  or are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.

 

(b)     Except as set forth on Schedule 5.10(b) or as would not, individually or in the aggregate, be reasonably likely to result in a Material Adverse Effect, (i) there are no claims being asserted in writing with respect to any amounts of taxes, (ii) there are no presently effective waivers or extensions of statutes in writing with respect to any amounts of taxes, and (iii) no tax returns are being examined by, and no written notification of intention to examine has been received from, the Internal Revenue Service or any other taxing authority, in each case, with respect to the Borrower or any of its Subsidiaries.

 

(c)     Neither the Borrower nor any of its Subsidiaries is party to any tax sharing agreement other than with an affiliate included in a consolidated or combined tax return, provided that any such tax sharing agreement shall be subject to the restrictions in Section 7.08 .

 

Section 5.11      Compliance with ERISA .  (a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state Laws, except as is not, either individually or in the aggregate, reasonably likely to have a Material Adverse Effect.

 

(b)     (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) none of the Loan Parties or any of their Subsidiaries has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 et seq. or 4243 of

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ERISA with respect to a Multiemployer Plan, except for a liability that could not reasonably be expected to result in a Material Adverse Effect; and (iii) none of the Loan Parties or any of their Subsidiaries or any ERISA Affiliate has engaged in a transaction that would be subject to Section 4069 or 4212(c) of ERISA.

 

Section 5.12      Labor Matters .  There are no strikes pending or, or to the Borrower’s knowledge, threatened against the Borrower or any of its Subsidiaries that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.  The (i) hours worked and payments made to employees of the Borrower or any of its Subsidiaries have not been in violation in any material respect of the Fair Labor Standards Act or any other applicable Law dealing with such matters and (ii) all material payments due from the Borrower or any of its Subsidiaries or for which any claim may be made against the Borrower or any of its Subsidiaries, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Borrower or such Subsidiary to the extent required by GAAP.  The consummation of the Transaction will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Borrower or any of its Subsidiaries (or any predecessor) is bound, other than collective bargaining agreements that, individually or in the aggregate, are not material to the Borrower or any of its Subsidiaries.

 

Section 5.13      Insurance .  The properties of the Loan Parties and their Subsidiaries are insured in the manner contemplated by Section 6.07 Schedule 5.13 sets forth a true, complete and correct description of all insurance maintained by or on behalf of the Loan Parties and their Subsidiaries as of the Closing Date. As of the Closing Date, all such insurance is in full force and effect and all premiums in respect of such insurance have been duly paid.  The insurance maintained by or on behalf of the Loan Parties and their Subsidiaries is adequate and is in accordance with normal industry practice.

 

Section 5.14      Subsidiaries; Equity Interests .  As of the date hereof and the date of delivery of any supplemental Schedules pursuant to Section 6.02(d)  and Section 6.11 , none of the Loan Parties have any Subsidiaries other than those specifically disclosed in Schedule 5.14 , and all of the outstanding Equity Interests in each such Person and each such Subsidiary have been validly issued, are fully paid and non‑assessable.  As of the date hereof and the date of delivery of any supplemental Schedules pursuant to Section 6.02(d)  and Section 6.11 ,   Schedule 5.14 (a) sets forth the name and jurisdiction of organization of each Subsidiary of each of the Loan Parties, (b) sets forth the ownership interest of each Loan Party and each of its Subsidiaries in each of their respective Subsidiaries, including the percentage of such ownership and (c) identifies each Person the Equity Interests of which are required to be pledged pursuant to the Collateral and Guarantee Requirement and Section 6.11 .

 

Section 5.15      Margin Regulations; Investment Company Act; PATRIOT Act

 

(a)      None of the Loan Parties or any of their Subsidiaries is engaged nor will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for

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the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U issued by the FRB.

 

(b)     None of the Loan Parties or any of their Subsidiaries or any Person controlling such Loan Party or any of its Subsidiaries is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.

 

(c)     None of the Loan Parties or any of their Subsidiaries is in material violation of any applicable laws relating to money laundering, including the PATRIOT Act, or terrorism, including Executive Order No. 13224 on Terrorist Financing, effective September 23, 2001, and the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended), or any enabling legislation or executive order relating thereto.  None of the Loan Parties or any of their Subsidiaries will knowingly use the proceeds of the Loans in violation of any of the foregoing statutes.

 

(d)     No Loan Party (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner that violates Section 2 of such executive order, or (iii) is a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to blocking or specific trade restrictions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or implementing executive order.

 

Section 5.16      Disclosure .  No report, financial statement, certificate or other written information furnished by or on behalf of the Borrower or any of its Subsidiaries to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains when furnished 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 materially misleading; provided that with respect to projections and other forward‑looking information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time of preparation; it being understood that such projections may vary from actual results and that such variances may be material.  There are no facts known (or which should upon the reasonable exercise of diligence be known) to Company (other than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection with the transactions contemplated hereby.

 

Section 5.17      Intellectual Property .  As of the date hereof and the date of delivery of any supplemental Schedules pursuant to Section 6.02(d)  and Section 6.11 , set forth on Schedule 5.17 is a complete and accurate list of all Registered patents, trademarks, service

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marks, domain names and copyrights, owned by the Borrower or any of its Subsidiaries as of such date, showing as of such date the jurisdiction in which each such item of Registered Intellectual Property is registered or in which an application is pending and the registration or application number.  The Borrower and each Subsidiary owns or has the right to use, all of the trademarks, service marks, trade names, domain names, copyrights, patents, know‑how, technology and other intellectual property recognized under applicable Law (collectively, “ Intellectual Property ”) that are material to the operation of their respective businesses as currently conducted and, to the knowledge of the Loan Parties, the use of such Intellectual Property by such Person or the operation of their respective businesses is not infringing upon any Intellectual Property rights held by any other Person except as would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.

 

Section 5.18      Solvency .  After giving effect to the Transaction and the other transactions contemplated hereby and thereby, the Borrower and its Subsidiaries are, on a consolidated basis, Solvent.

 

Section 5.19      Material Agreements Schedule 5.19 contains a true, correct and complete list of all the Material Agreements in effect on the Closing Date, which, together with any updates provided pursuant to Section 6.03(l) , are in full force and effect and no defaults currently exist thereunder (other than as described in Schedule 5.19 or in such updates).

 

ARTICLE VI

 

AFFIRMATIVE COVENANTS

 

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in the case of the covenants set forth in Section 6.01 ,   Section 6.02 ,   Section 6.03 and Section 6.04(b) ) cause each Subsidiary to:

 

Section 6.01      Financial Statements .  Deliver to the Administrative Agent for prompt further distribution to each Lender:

 

(a)     as soon as available, but in any event within ninety (90) days after the end of each Fiscal Year of the Borrower, a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year, and the related consolidated and consolidating statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Year, setting forth in each case (i) in comparative form the figures for the previous Fiscal Year and (ii) a comparison of actual figures against the forecasts for such Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a (A) report and opinion of an independent registered public accounting firm reasonably acceptable to the Administrative Agent (Hein & Associates shall be acceptable), which report and opinion shall (1) be prepared in accordance with generally accepted auditing standards and (2) not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit other than pertaining solely to impending debt maturities of any

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Indebtedness occurring within twelve (12) months of such audit, and (B) certificate of such accounting firm to the Lenders stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof; and

 

(b)     as soon as available, but in any event, within forty‑five (45) days after the end of each fiscal quarter of the Borrower (commencing with the first full fiscal quarter ended after the Closing Date), a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and consolidating statements of income or operations, and consolidated and consolidating statements of cash flows for such fiscal quarter and for the portion of the Fiscal Year then ended, setting forth in each case (A) in comparative form the figures for the corresponding fiscal quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and (B) a comparison of actual figures for such fiscal quarter against the forecasts for such fiscal quarter, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, Shareholders’ Equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to customary year‑end adjustments consistent with past practice and the absence of footnotes ;   provided ,   however , that until the annual financial statements of the Borrower for the Fiscal Year ended December 31, 2017 are filed with the SEC or any other successor Governmental Authority (the “ 2017 Filed Financial Statements ”), a Responsible Officer of the Borrower shall only be required to certify that such financial statements fairly present in all material respects the financial condition, results of operations, and Shareholders’ Equity of the Borrower and its Subsidiaries in accordance with GAAP, subject to customary period end adjustments, the absence of footnotes, adjustments required by subsequent events and other customary audit and accounting adjustments that impact open accounting periods, provided further that if any such financial statements are adjusted in the 2017 Filed Financial Statements, the Borrower shall within three (3) Business Days following the filing of the 2017 Filed Financial Statements deliver to the Administrative Agent for further distribution to each Lender a detailed statement of such adjustments, which shall be reasonably satisfactory to the Administrative Agent.

 

(c)     as soon as available, but in any event, within thirty (30) days after the end of each of fiscal month of the Borrower (commencing with the first full fiscal month ended after the Closing Date),

 

(i)     a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal month, and the related consolidated and consolidating statements of income or operations, (which shall set forth the cost of sales and in selling, general and administrative (SG&A) expenses, gross margin, restructuring charges and unusual or nonrecurring expenses) for such fiscal month and for the portion of the Fiscal Year then ended, together with a calculation of the trailing twelve-month Consolidated Adjusted EBITDA as of the end of such month and setting forth in each

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case (A) in comparative form the figures for the corresponding fiscal month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and (B) a comparison of actual figures for such fiscal month against the forecasts for such fiscal month, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, Shareholders’ Equity of the Borrower and its Subsidiaries in accordance with GAAP, subject only to customary year‑end adjustments consistent with past practice and the absence of footnotes; provided ,   however , that until the 2017 Filed Financial Statements are filed with the SEC or any other successor Governmental Authority, a Responsible Officer of the Borrower shall only be required to certify that such financial statements fairly present in all material respects the financial condition, results of operations, and Shareholders’ Equity of the Borrower and its Subsidiaries in accordance with GAAP, subject to customary period end adjustments, the absence of footnotes, adjustments required by subsequent events and other customary audit and accounting adjustments that impact open accounting periods, provided further that if any such financial statements are adjusted in the 2017 Filed Financial Statements, the Borrower shall within three (3) Business Days following the filing of the 2017 Filed Financial Statements deliver to the Administrative Agent for further distribution to each Lender a detailed statement of such adjustments, which shall be reasonably satisfactory to the Administrative Agent.

 

(ii)     until the consummation and final closing of the Specified Subsidiary Transaction, a pro forma rolling   thirteen-week   cash flow budget of the Borrower and its Domestic Subsidiaries, which budget shall detail all cash inflows and outflows during such period and shall otherwise be reasonably satisfactory in all respects to the Administrative Agent (each such budget, a Cash Flow Budget ).  Each Cash Flow Budget shall include a reconciliation of the actual results for the immediately preceding thirteen-week period to the Cash Flow Budget for such immediately preceding thirteen-week period and a detailed explanation of all material variances from the immediately preceding thirteen-week Cash Flow Budget and shall demonstrate that accounts payables have been made in the ordinary course of business and consistent with past practices; and

 

(iii)     a schedule of outstanding letters of credit, outstanding Indebtedness balances and Liquidity reflected on the balance sheet of the Loan Parties on a consolidated basis.

 

(d)      Annual Forecasts and Budget .  As soon as available and in any event no later than February 1 of each Fiscal Year, forecasts prepared by management of the Borrower, in form reasonably satisfactory to the Administrative Agent, of balance sheets, income statements and cash flow statements on a monthly basis for the period until the Maturity Date, and an explanation of the assumptions on which such forecasts are based and demonstrating projected compliance with the Financial Covenants, in each case in form reasonably satisfactory to the Administrative Agent.

 

(e)      Management Discussion and Analysis Reports .  Simultaneously with the delivery of each set of financial statements referred to in Section 6.01(a) ,   (b) and (c) , (i) a

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report setting forth management’s analysis and discussion of the condition (financial and otherwise) operations, which may be in the form of the Business Segment Review delivered to the Administrative Agent prior to the Closing Date, (ii) a summary of all backlog, walk forwards and opportunity listings, (iii) [reserved], (iv) a schedule of outstanding letters of credit (including the Existing Letters of Credit), and (v) a schedule of outstanding performance and surety bonds and a schedule of costs in excess of billings.  The Borrower shall schedule one (1) telephonic or in-person conference per fiscal quarter among the Administrative Agent, the Lenders and the chief financial officer and chief executive officer of the Borrower to discuss the contents of the relevant reports.

 

(f)      Annual Reconciliation .  Simultaneously with the delivery of each set of financial statements referred to in Section 6.01(a) , an annual reconciliation to the forecast delivered to the Administrative Agent for the Fiscal Year recently ended in footnote form and in substance satisfactory to the Administrative Agent.

 

(g)      December 31, 2016 Audited Financial Statements .  As soon as available and in any event no later than September 15, 2017, the final audited consolidated balance sheets and related statements of income, Shareholders’ Equity and cash flows of the Company for the Fiscal Year of the Company ended December 31, 2016.  

 

Section 6.02      Certificates; Reports; Other Information .  Promptly deliver to the Administrative Agent for further distribution to each Lender:

 

(a)     upon delivery of the financial statements referred to in Section 6.01(a) ,   (b) , and (c)(i) (solely as it relates to the Financial Covenants set forth in Section 7.12(e) ), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower;

 

(b)     promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which the Borrower files with the SEC or with any successor Governmental Authority (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S‑8), all press releases and other statements made available generally by the Borrower or any of its Subsidiaries to the public concerning material developments in the business of the Borrower or any of its Subsidiaries, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;

 

(c)     promptly after the receipt or furnishing thereof, copies of any material requests or material notices received by any Loan Party or any of its Subsidiaries (other      than in the ordinary course of business) in respect of any instrument, indenture, loan or credit or similar agreement relating to Indebtedness in excess of the Threshold Amount or relating to the ABN AMRO Facility;

 

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(d)     together with the delivery of each Compliance Certificate pursuant to Section 6.02(a) , (i) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a prepayment under Section 2.02(b) , (ii) a list of Subsidiaries as of the date of delivery of such Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date or the date of the last such list, (iii) a report supplementing Schedules 5.07(b) and 5.17 and Schedules I and IV of the Security Agreement and (iv) such other information required by the Compliance Certificate;

 

(e)     within fifteen (15) days of filing or receipt of any material written notification, copies of all Tax returns, waivers, amendments, requests for extension and other material written notifications which the Borrower and its Subsidiaries files with, or receives from, the Internal Revenue Service or any other taxing authority;

 

(f)     any notices of default given or received with respect to any Permitted Servicing Joint Venture and, upon written request of the Administrative Agent, such additional material or documentation provided by or to the Loan Parties with respect to each such Permitted Servicing Joint Venture as may be reasonably requested; and

 

(g)     promptly, such additional information regarding the business, legal, 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 through the Administrative Agent may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a) ,   (b)  or (c) or Section 6.02(b) (c)  or (e) may be delivered electronically to the Administrative Agent for further distribution to each Lender and if so delivered, shall be deemed to have been delivered on the date the Borrower delivers such documents to the Administrative Agent by electronic mail; provided that upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent.  Notwithstanding the foregoing, the Borrower shall deliver originally executed Compliance Certificates to the Administrative Agent (in addition to the electronic copies pursuant to the foregoing).  Each Lender shall be solely responsible for timely accessing electronically provided documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.

 

Section 6.03      Notice Requirements; Other Information .  (i) Promptly after a Responsible Officer obtains knowledge thereof, notify the Administrative Agent of each of the following events or circumstances, and, (ii) as soon as available, provide to the Administrative Agent, for prompt further distribution to each Lender, the following information and documents:

 

(a)     the occurrence of any Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Borrower has taken or proposes to take with respect thereto;

 

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(b)     the occurrence of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;

 

(c)     the commencement of, or any material development in, any litigation or governmental proceeding (including without limitation pursuant to any applicable Environmental Law) pending against the Borrower or any of the Subsidiaries that is listed on Schedule 5.06 or that could reasonably be expected to be determined adversely and, if so determined, to result in a Material Adverse Effect;

 

(d)     the occurrence of any ERISA Event that could reasonably be expected to result in a liability above the Threshold Amount or the breach of any representation in Section 5.11 or 5.12 ;

 

(e)     the occurrence of any event triggering a Collateral and Guarantee Requirement under Section 6.11 ;

 

(f)     any information with respect to environmental matters as required by Section 6.04(b) ;

 

(g)     copies of all notices, requests and other documents received by any Loan Party or any of its Subsidiaries pursuant to any instrument, indenture, loan or credit or similar agreement relating to Indebtedness in excess of the Threshold Amount regarding or related to any breach or default by any party thereto or any other event that could reasonably be expected to materially impair the value of the interests or the rights of any Loan Party or otherwise have a Material Adverse Effect and copies of any amendment, modification or waiver of any provision of any such instrument, indenture, loan or credit or similar agreement relating to any Indebtedness in excess of the Threshold Amount and, from time to time upon request by the Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements relating to any Indebtedness in excess of the Threshold Amount as the Administrative Agent may reasonably request;

 

(h)     a tax event or liability not previously disclosed in writing by the Borrower to the Administrative Agent which would reasonably be expected to result in a material liability, together with any other information as may be reasonably requested by the Administrative Agent to enable the Administrative Agent to evaluate such matters;

 

(i)     any occurrence of a Change of Control;

 

(j)     any change (i) in any Loan Party’s corporate name, (ii) any Loan Party’s identity and corporate structure, (iii) any Loan Party’s taxpayer identification number or (iv) any Loan Party’s location.  The Borrower agrees that it will not, and will not permit any of its Subsidiaries to, permit or make any change referred to in this Section 6.03(j) unless all filings have been made under the Uniform Commercial Code within the time periods provided therein or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected first

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priority security interest in the Collateral and for the Collateral Agent at all times following such change to have a valid, legal and perfected first priority security interest as contemplated by the Collateral Documents in each case, subject to Permitted Liens;

 

(k)     immediately upon the discovery of any inaccuracy, miscalculation or misstatement contained in any Compliance Certificate or other certificate provided for any period that affects any financial or other calculations, representations or warranties or other statements impacting any provision of this Agreement and any other Loan Document in any material respect, notice of such inaccuracy, miscalculation or misstatement together with an updated certificate including the corrected information, calculation or statement, as applicable;

 

(l)     promptly, and in any event within ten (10) Business Days (i) after any Material Agreement of the Borrower or any of its Subsidiaries is terminated or amended in a manner that is materially adverse to Borrower or such Subsidiary, as the case may be, or (ii) after any new Material Agreement is entered into, a written statement describing such event, with copies of such material amendments or new contracts, delivered to Administrative Agent (to the extent such delivery is permitted by the terms of any such Material Agreement, provided , no such prohibition on delivery shall be effective if it were bargained for by Borrower or its applicable Subsidiary with the intent of avoiding compliance with this Section 6.03(l) ), and an explanation of any actions being taken with respect thereto;

 

(m)     each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 6.01(a) , the Company shall deliver to Collateral Agent an Officer’s Certificate either (i)  confirming that there has been no change in such information since the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section and/or identifying such changes, or (ii) certifying that all UCC financing statements (including fixtures filings, as applicable) or other appropriate filings, recordings or registrations, have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified in the Collateral Questionnaire or pursuant to clause (i) above to the extent necessary to protect and perfect the security interests under the Collateral Documents for a period of not less than eighteen (18) months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period);

 

(n)     [reserved]; and

 

(o)     any management letter delivered to management of the Borrower by an independent registered public accounting firm.

 

Section 6.04      Environmental Matters .  (a) Comply and cause each of its Subsidiaries and take all commercially reasonable efforts to cause all lessees and other Persons operating or occupying any real property owned or leased by the Loan Parties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain

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and renew, and cause each of its Subsidiaries to obtain, maintain and timely renew, all Environmental Permits required under Environmental Laws for its operations and properties; and conduct, and cause each of its Subsidiaries to conduct, any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action required to remove, clean up and/or otherwise address all violations of Environmental Laws and all Releases or threatened Releases of Hazardous Materials from any of its properties, as required under, and in accordance with the requirements of all Environmental Laws; provided ,   however , that neither the Borrower nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and, to the extent required by GAAP, appropriate reserves are being maintained with respect to such circumstances.

 

(b)      Environmental Reporting Requirements .  Promptly, and in any event within ten (10) Business Days, after a Responsible Officer obtains knowledge thereof, notify the Administrative Agent of or, deliver to the Administrative Agent, for further distribution to each Lender copies of any and all material written correspondence and material documents concerning:

 

(i)     any Environmental Action against or of any non‑compliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that would (1) reasonably be expected to result in a liability to any Loan Party in excess of $500,000 or (2) cause any Mortgaged Properties to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law;

 

(ii)     to the extent any of the following is reasonably expected to result in a liability to any Loan Party in excess of $500,000: (1) any occurrence of any Release or threatened Release of Hazardous Materials required to be reported to any Governmental Authority under applicable Environmental Law, (2) any Release or threatened Release that could reasonably be expected to result in an Environmental Action or (3) the Loan Parties’ discovery of any occurrence of or condition on any real property adjoining or in the vicinity of any site or facility that would be reasonably expected to cause such site or facility or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws;

 

(iii)     to the extent reasonably expected to result in a liability to any Loan Party in excess of $500,000, any action proposed to be taken by the Borrower or any of its Subsidiaries to modify current operations in a manner that would reasonably be expected to subject the Borrower and its Subsidiaries to any material additional obligations or requirements under Environmental Laws;

 

(iv)     copies of all material environmental reports or audits (whether produced by the Borrower or its Subsidiaries or any third party or Governmental Authority) and any Phase I or Phase II reports in respect of any sites or real property owned, leased or operated by the Borrower and its Subsidiaries that are in possession or control of any Loan Party or any of its Subsidiaries;

 

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(v)     to the extent any of the following is reasonably expected to result in a liability to any Loan Party in excess of $500,000: copies of any and all material written communications with respect to (A) any Environmental Action, (B) any release or threatened release or non‑compliance with any Environmental Law required to be reported to any Governmental Authority and (C) any request for information from a Governmental Authority that suggests such Governmental Authority is investigating the potential responsibility of the Borrower or any of its Subsidiaries as a potentially responsible party;

 

(vi)     the good faith belief that a Release of Hazardous Materials, or a violation of Environmental Law reasonably likely to result in a fine or penalty in excess of $500,000, has occurred on or after the Closing Date, and within sixty (60) days after request by the Administrative Agent and at the expense of the Borrower, any additional environmental site assessment reports for any of its or its Subsidiaries’ properties described in such request prepared by an environmental consulting firm reasonably acceptable to the Administrative Agent, indicating the presence or absence of such Hazardous Materials and the estimated cost of any compliance, removal or remedial action in connection with any such Hazardous Materials on such properties; without limiting the generality of the foregoing, if the Administrative Agent reasonably determines at any time that a material risk exists that any such report will not be provided within the time referred to above, the Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of the Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary that owns any property described in such request to grant at the time of such request to the Administrative Agent, the Lenders, such firm and any agents or representatives thereof, the right, subject to the rights of tenants, to enter onto their respective properties to undertake such an assessment; and

 

(vii)     any such other documents and information as the Administrative Agent may reasonably request from time to time.

 

Section 6.05      Maintenance of Existence .  (a) Preserve, renew and maintain in full force and effect its legal existence, structure and name under the Laws of the jurisdiction of its organization and (b) take all commercially reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business, except pursuant to a transaction permitted by Section 7.04 or Section 7.05 ;   provided , that nothing in this Section 6.05 shall prevent any Loan Party (other than the Borrower) from discontinuing operations or maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of such Loan Party, desirable in the conduct of its or their business and is not materially adverse to the Lenders.

 

Section 6.06      Maintenance of Properties .  Maintain, preserve and protect all of its material properties and equipment that are used or useful in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and make all commercially reasonable and appropriate repairs, renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof except where failure to do so would not reasonably be expected to materially adversely

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affect the use of the related property; provided , that nothing in this Section 6.06 shall prevent any Loan Party (other than the Borrower) from discontinuing operations or maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of such Loan Party, desirable in the conduct of its or their business and is not materially adverse to the Lenders.

 

Section 6.07      Maintenance of Insurance .  Maintain with financially sound and reputable insurance companies (in the good faith judgment of management), insurance with respect to its properties and business (including D&O insurance) 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 (after giving effect to any self‑insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Borrower and its Subsidiaries) as are customarily carried by a Person engaged in similar businesses and owning or leasing similar properties in the same general areas in which the Borrower or such Subsidiary operates.

 

Section 6.08      Compliance with Laws . Comply with the requirements of all Laws and all orders, writs, injunctions, decrees and judgments applicable to it or to its business or property, except where such non‑compliance is not, either individually or in the aggregate, reasonably likely to have a Material Adverse Effect.

 

Section 6.09      Books and Records .  Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and as are sufficient to permit the preparation of financial statements in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be.

 

Section 6.10      Inspection Rights/Lender Meetings .  (a) Permit representatives and independent contractors of the Administrative Agent to visit and inspect any properties of the Borrower and its Subsidiaries (subject, in the case of third party customer sites, to customary access agreements) and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided ,   however , that (i) such visits and inspections shall be coordinated through the Administrative Agent and (ii) the Administrative Agent shall not exercise such rights more than four (4) times during any Fiscal Year absent the occurrence of an Event of Default.  The Administrative Agent shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants to the extent reasonably feasible.  Neither the Borrower nor any Subsidiary shall be required to disclose to the Administrative Agent or any Lender any information that, in the opinion of counsel to the Borrower or such Subsidiary, is prohibited by Law to be disclosed, is subject to attorney client privilege or constitutes attorney work product or the disclosure of which would cause a material breach of a binding non‑disclosure agreement with a third party to the extent such agreement is not made in contemplation of the avoidance of this Section 6.10 .

 

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(b)     The Borrower will, upon the request of Administrative Agent or Required Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and Administrative Agent) at such time as may be agreed to by the Borrower and Administrative Agent.

 

Section 6.11      Covenant to Guarantee Obligations and Give Security .  Upon (x) the formation or acquisition of any new direct or indirect Subsidiaries by any Loan Party or (y) the acquisition of any property by any Loan Party (it being understood that, in the case of real property under the foregoing clauses (x)  and (y) , only the requirements of Section 6.11(g) , which requirements shall apply only to Material Owned Property, Section 6.11(b)  and Section 6.11(f)  shall apply), and such property, in the sole judgment of the Collateral Agent, shall not already be subject to a perfected first priority security interest in favor of the Collateral Agent for the benefit of the Secured Parties, then each Loan Party shall, in each case at such Loan Party’s expense:

 

(a)     in connection with the formation or acquisition of a Subsidiary, within thirty (30) days after such formation or acquisition (or such longer period as the Collateral Agent may agree in its sole discretion), cause each such Subsidiary that is required to be a Guarantor pursuant to the Collateral and Guarantee Requirement, to duly execute and deliver to the Collateral Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Collateral Agent, guaranteeing the other Loan Parties’ Obligations under the Loan Documents,

 

(b)     within thirty (30) days after (or such longer period as the Collateral Agent may agree in its sole discretion) such formation or acquisition, furnish to the Collateral Agent a description of the Material Owned Properties and material personal properties of such Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement or the Material Owned Property and personal properties so acquired, in each case in detail reasonably satisfactory to the Collateral Agent,

 

(c)     within thirty (30) days after (or such longer period as the Collateral Agent may agree in its sole discretion) (i) acquisition of property by any Loan Party, duly execute and deliver, and cause each Loan Party to duly execute and deliver, to the Collateral Agent such additional pledges, assignments, Securities Pledge Agreement Supplements, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other security agreements (which, to the extent applicable and if relating to the type of Collateral the granting of a security interest in which can be effected through the execution of a joinder agreement or supplement to the Securities Pledge Agreement (a “ Securities Pledge Agreement Supplement ”), a joinder agreement or supplement to the Security Agreement (a “ Security Agreement Supplement ”) or a joinder agreement or supplement to the Intellectual Property Security Agreement (an “ Intellectual Property Security Agreement Supplement ”) shall be effected in such manner), as specified by, and in form and substance reasonably satisfactory to the Collateral Agent, in each case securing payment of all the Obligations of such Loan Party under the Loan Documents and granting Liens on all such properties and (ii) such

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formation or acquisition of any new Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement, duly execute and deliver and cause such Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement and each Loan Party acquiring Equity Interests in such Subsidiary to duly execute and deliver to the Collateral Agent pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other security agreements (which, to the extent applicable and if relating to the type of Collateral the granting of a security interest in which can be effected through the execution of a Security Agreement Supplement or Intellectual Security Agreement Supplement shall be effected in such manner) as specified by, and in form and substance reasonably satisfactory to, the Collateral Agent, in each case securing payment of all of the Obligations of such Subsidiary or Loan Party, respectively, under the Loan Documents and granting Liens on all properties of such new Subsidiary,

 

(d)     within thirty (30) days (or such longer period as the Collateral Agent may agree in its sole discretion) after such formation or acquisition, take, and cause each Loan Party and each newly acquired or newly formed Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to take or cause to be taken, whatever action (including, without limitation, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid, perfected (subject to the Collateral and Guarantee Requirement) Liens on the properties purported to be subject to the pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreement Supplements and security agreements delivered pursuant to this Section 6.11 , enforceable against all third parties in accordance with their terms, subject to Permitted Liens,

 

(e)     within thirty (30) days (or such longer period as the Collateral Agent may agree in its sole discretion) after such formation or acquisition, deliver to the Collateral Agent, upon the request of the Collateral Agent in its sole discretion, a signed copy of a favorable opinion in customary form, addressed to the Collateral Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Collateral Agent addressing such matters as the Collateral Agent may reasonably request,

 

(f)     at any time and from time to time, promptly execute and deliver, and cause each Loan Party and each newly acquired or newly formed Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to execute and deliver, any and all further instruments and documents and take, and cause each Loan Party and each newly acquired or newly formed Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to take, all such other action as the Collateral Agent may deem reasonably necessary or desirable to satisfy the Collateral and Guarantee Requirement in obtaining the full benefits of, or in perfecting and preserving the Liens granted pursuant to (as applicable), such guaranties, Mortgages, pledges, assignments, Security Agreement Supplements, Intellectual Property Security Agreement supplements and security agreements,

 

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(g)     after the Closing Date, promptly within sixty (60) days after (x) the acquisition of any Material Owned Property by any Loan Party, (y) the formation or acquisition of any new direct or indirect Subsidiaries that owns any Material Owned Property and (z) the entering into a Leasehold Property or the formation or acquisition of any new direct or indirect Subsidiaries that enters into a new Leasehold Property, in each case if such Material Owned Property or Leasehold Property shall not already be subject to a perfected Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof to the Administrative Agent and promptly thereafter shall cause such real property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement, and otherwise satisfy the Collateral and Guarantee Requirement with respect to such real property or Leasehold Property, as applicable, and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien, and

 

(h)      u pon the written request of the Administrative Agent following a Change in Law pursuant to which the Administrative Agent reasonably determines that (x) the circumstances causing the undistributed earnings of any direct Foreign Subsidiary other than a Specified Foreign Subsidiary (such earnings as determined for United States federal income tax purposes) to be treated as a deemed dividend to the Borrower or any other Domestic Subsidiary for United States federal income tax purposes or (y) such other circumstances no longer subject the Borrower or any other Domestic Subsidiary to liability for any additional United States income taxes by virtue of Section 956 of the Code or any other applicable provision of the Code other than any liability arising as a result of the Borrower’s or such Domestic Subsidiary’s ownership of the Equity Interests of a Specified Foreign Subsidiary (“ CFC Pledge Restrictions ”), then that portion of such direct Foreign Subsidiary’s outstanding Equity Interests issued by such Foreign Subsidiary not theretofore pledged pursuant to the relevant Collateral Document shall be pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to a supplement to the relevant Collateral Document (or another pledge agreement in substantially identical form, if needed) to the extent that entering into such Collateral Document is permitted by the Laws of the respective foreign jurisdiction and with all documents delivered pursuant to this Section 6.11(h) to be in form, scope and substance reasonably satisfactory to the Collateral Agent, unless counsel for the Company reasonably acceptable to the Administrative Agent provides, within sixty (60) days after such written request of the Administrative Agent, a written opinion addressed to the Borrower and the Administrative Agent, in form and substance mutually satisfactory to the Borrower and the Administrative Agent to the effect that, with respect to any direct Foreign Subsidiary of any Loan Party that has not already had all of the Equity Interests issued by it pledged pursuant to the Collateral Documents, a pledge of more than 65% of the total combined voting power of all classes of Equity Interests of such Foreign Subsidiary entitled to vote could reasonably be expected, despite such Change in Law, to continue to be subject to a CFC Pledge Restriction. 

 

Section 6.12      Use of Proceeds .  The proceeds of the Loans shall be used (a) to refund, refinance and replace the existing secured asset-based revolving credit facility on the

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Closing Date, (b) to provide working capital and other general corporate purposes permitted hereunder and (c) for fees and expenses related to the Transaction or the First Amendment.

 

Section 6.13      Further Assurances; Post‑Closing Undertakings .  (a)  General Assurances .  (i) Within the time periods specified on Schedule 6.13 (as each may be extended by the Administrative Agent in its reasonable discretion), provide such Collateral Documents and complete such undertakings as are set forth on Schedule 6.13 .

 

(ii)     Promptly upon request by any Agent, or any Lender through the Administrative Agent, correct, and cause each of its Subsidiaries promptly to correct, any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof.

 

(iii)     Promptly upon request by any Agent, or any Lender through the Administrative Agent, do, execute, acknowledge, deliver, record, re‑record, file, re‑file, register and re‑register any and all such further acts, deeds, conveyances, pledge agreements, Mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, collateral access agreements, assurances and other instruments as any Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (w) carry out more effectively the purposes of the Loan Documents, (x) to the fullest extent permitted by applicable Law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (y) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (z) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.

 

(iv)     At the reasonable request of the Collateral Agent, use commercially reasonable efforts to cause any third parties to deliver or cause to be delivered such documents and instruments necessary to create, perfect and protect the security interests of the Secured Parties in the Collateral, subject to the express limitations of the Collateral and Guarantee Requirement.

 

(v)     At the request of the Administrative Agent, use commercially reasonable efforts to obtain the applicable consents to security interests in assets in which the granting of a security interest is prohibited by applicable law or agreements containing anti‑assignment clauses (it being understood that the Loan Parties shall not be required to commence litigation or expend any sums of money (except reasonable expenses in obtaining such consents) to obtain such consents).

 

Section 6.14      Taxes .  (a) Pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all Taxes, assessments and governmental charges or levies

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imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, which, if unpaid when due and payable, may reasonably be expected to become a tax Lien upon any properties of the Borrower or any of its Subsidiaries not otherwise permitted under this Agreement; provided that none of the Borrower nor any of its Subsidiaries shall be required to pay any such Tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP unless and until any tax Lien resulting therefrom attaches to its property and becomes enforceable against its other creditors.

 

(b)     Be classified as a corporation for United States federal income tax purposes and be the common parent of an affiliated group that will elect to file consolidated United States federal income tax returns together with the Borrower and its Subsidiaries.

 

Section 6.15      End of Fiscal Years; Fiscal Quarters .  Cause (i) its Fiscal Year to end on or about December 31 of each calendar year and (ii) its fiscal quarters to end on or about March 31, June 30, September 30 and December 31 of each calendar year, in each case unless otherwise approved by the Administrative Agent.

 

Section 6.16      ERISA .  (a)  ERISA Events and ERISA Report s.  Deliver to the Administrative Agent (i) promptly and in any event within ten (10) days after any Loan Party, any Subsidiary or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of the Chief Financial Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party, such Subsidiary or such ERISA Affiliate has taken and proposes to take with respect thereto and (ii) within ten (10) days of the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information.

 

(b)      Plan Terminations .  Promptly and in any event within three (3) Business Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan.

 

(c)      Plan Annual Reports .  Promptly and in any event within thirty (30) days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan.

 

(d)      Multiemployer Plan Notices .  Promptly and in any event within five (5) Business Days after receipt thereof by any Loan Party, any Subsidiary or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (i) the imposition of Withdrawal Liability by any such Multiemployer Plan, (ii) the reorganization or termination, or a determination that such Multiemployer Plan is in endangered or critical status, within the meaning of Title IV of ERISA, of any such Multiemployer Plan or (iii) the amount of liability incurred, or that may be incurred, by such Loan Party, such Subsidiary or such ERISA Affiliate in connection with any event described in clause (i) or (ii).

 

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Section 6.17      Permitted Servicing Joint Ventures .  

 

(a)     The Borrower shall submit a Servicing Joint Venture Proposal Package with respect to a proposed Joint Venture to the Administrative Agent at least ten (10) Business Days prior to the time at which the formation and governing documents of such Joint Venture would become binding upon a Loan Party. If the Borrower submits a Servicing Joint Venture Package for an Investment that does not satisfy the criteria set forth in the definition of “Permitted Servicing Joint Venture”, the Administrative Agent may, in its sole discretion, determine to approve such Investment as a “Permitted Servicing Joint Venture”, notwithstanding the failure of such Investment to satisfy the criteria set forth in the definition of “Permitted Servicing Joint Venture”. The Administrative Agent shall respond to the Borrower’s request for such approval within five (5) Business Days after receipt of the Servicing Joint Venture Proposal Package; provided that the Administrative Agent’s failure to respond within such five (5) Business Day period shall be deemed to be a rejection of such Servicing Joint Venture Proposal Package.

 

(b)     Within five (5) Business Days following the execution of definitive documentation relating to such Permitted Servicing Joint Venture, the Borrower shall deliver to the Administrative Agent sufficient copies of all such definitive documentation for distribution to the Lenders (any such documentation that meets the definition of a Material Agreement, shall be considered a Material Agreement).

 

Section 6.18      Chief Restructuring Officer On or prior to the date that is one hundred eighty (180) days following the Closing Date, the Administrative Agent shall have the option to request that the Borrower appoint a chief restructuring officer (a “ Chief Restructuring Officer ”).  Upon such request, the Borrower shall engage a Chief Restructuring Office that is reasonably satisfactory to the Administrative Agent.

 

ARTICLE VII

 

NEGATIVE COVENANTS

 

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly:

 

Section 7.01      Liens .  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues (including accounts receivable), 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 7.01(b) ;

 

(c)     Liens for taxes, assessments or governmental charges which are not overdue for a period of more than thirty (30) days or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are

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maintained on the books of the applicable Person to the extent required in accordance with GAAP;

 

(d)     statutory or common law Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, suppliers, construction contractors or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than thirty (30) days or if more than thirty (30) days overdue, are unfiled (or if filed have been discharged or stayed) and no other action has been taken to enforce such Lien or which are being contested in good faith, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP;

 

(e)     (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Subsidiary and (iii) Liens securing the financing of insurance premiums (to the extent such Liens extend to the unearned premiums for such insurance);

 

(f)     deposits to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business;

 

(g)     easements, rights‑of‑way, covenants, conditions, restrictions, encroachments, and other survey defects protrusions and other similar encumbrances and minor title defects affecting real property which were not incurred in connection with Indebtedness and do not in any case materially and adversely interfere with the use of the property encumbered thereby for its intended purposes;

 

     (h)     Liens securing Indebtedness permitted under Section 7.03(c) ;   provided that (i) such Liens attach concurrently with or within one hundred twenty (120) days after the acquisition, or the completion of the construction, repair, replacement or improvement (as applicable) of the property subject to such Liens, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits, and (iii) with respect to Capital Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to such Capital Leases;

 

(i)     Liens that are contractual rights of set‑off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection

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with the incurrence of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Subsidiary (so long as such Subsidiary remains a Subsidiary) to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or such Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Subsidiaries in the ordinary course of business;

 

(j)     Liens arising from precautionary Uniform Commercial Code financing statement filings regarding leases entered into by the Borrower and its Subsidiaries in the ordinary course of business;

 

(k)     any zoning, land‑use or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property;

 

(l)     the modification, replacement, renewal or extension of any Lien permitted by clause (b) of this Section 7.01 ;   provided that (i) the Lien does not extend to any additional property other than (A) after‑acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03 , and (B) proceeds and products thereof; and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03 ; and

 

(m)     [reserved];

 

(n)     Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or other surety bonds relating to such judgments;

 

(o)      Liens on assets of Foreign Subsidiaries that secure Indebtedness permitted under Section 7.03 ;

 

(p)     Liens in connection with the cash collateralization of the Existing Letters of Credit (and any replacements thereof), so long as the amount secured thereunder does not exceed 105% of the aggregate face amount of such Existing Letters of Credit (or such replacement letters of credit);

 

(q)     Liens in favor of customs and revenue authorities arising as a matter of applicable Law and in the ordinary course of business to secure payment of customs duties in connection with the importation of goods; and

 

(r)     Non-exclusive licenses of patents, trademarks, copyrights and other intellectual property rights in the ordinary course of business.

 

Section 7.02      Investments .  Make any Investments, except:

 

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(a)     Investments by the Borrower or its Subsidiaries in cash and Cash Equivalents;

 

(b)     (i) intercompany loans to the extent permitted under Section 7.03(i) ; and equity Investments owned as of the Closing Date in any Subsidiary, (ii) Investments made after the Closing Date in any wholly-owned Guarantor Subsidiary and (iii) Investments made in the ordinary course of business by Borrower or any Subsidiary in a Specified Foreign Subsidiary to pay for the operating expenses of any Specified Foreign Subsidiary in an aggregate amount not to exceed $2,500,000 in any Fiscal Year;

 

(c)     to the extent constituting Investments, Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments expressly permitted under Section 7.01 ,   Section 7.02 ,   Section 7.03 ,   Section 7.04 ,   Section 7.05 and Section 7.06 , respectively and Capital Expenditures; provided ,   however , that no Investments may be made solely pursuant to this Section 7.02(c) ;

 

(d)     Investments existing on the date hereof and disclosed on Schedule 7.02(d) and Investments consisting of any modification, replacement, renewal, reinvestment or extension of any such Investment existing on the date hereof; provided that the amount of any Investment permitted pursuant to this Section 7.02(d) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.02 ;  

 

(e)     promissory notes and other non‑cash consideration received in connection with Dispositions permitted by Section 7.05 ;

 

(f)     Investments in the form of advances to subcontractors in the ordinary course of business;

 

(g)     cash Investments consisting of the entry into joint venture agreements for unincorporated joint ventures by any Loan Party for the limited purpose of negotiating, signing and performing construction, engineering, procurement, construction management and similar services provided that the aggregate value of all such cash Investments does not exceed $500,000 at any one time outstanding and provided further that no Loan Party or any Subsidiary of any Loan Party shall have any liability in excess of the cash Investment actually paid to such joint venture (as permitted by this Section 7.02(g) ) for any Indebtedness or any other obligation of any such joint venture;

 

(h)     non-cash Investments consisting of entry into Permitted Servicing Joint Ventures by the services division of a Loan Party or a Subsidiary of a Loan Party, provided that the Loan Parties and the Subsidiaries of the Loan Parties shall not be party to more than four (4) Permitted Servicing Joint Ventures at any given time;

 

(i)     Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of insolvency proceedings involving an account

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debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;

 

(j)     Equity Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to a Loan Party or its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or claims; and

 

(k)     Investments not otherwise permitted pursuant to this Section 7.02 in an aggregate amount not to exceed $500,000 at any time outstanding; provided that, immediately before and immediately after giving pro forma effect to any such Investments, no Default or Event of Default shall have occurred and be continuing.     

 

Section 7.03      Indebtedness .  Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “ Permitted Indebtedness ”):

 

(a)     Obligations of the Borrower and its Subsidiaries under the Loan Documents;

 

(b)     Surviving Indebtedness listed on Schedule 7.03(b) , but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided , such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, provided that the Indebtedness under the ABN AMRO Facility may be increased to an aggregate principal amount not to exceed €20,000,000 at any time outstanding or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;

 

(c)     Indebtedness with respect to (i) Capital Leases existing on the Closing Date as specified on Schedule 7.03(c) and (ii) additional Capital Leases incurred after the Closing Date and purchase money Indebtedness in an aggregate amount not to exceed $250,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;

 

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(d)     Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;

 

(e)     Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, performance bonds, surety bonds, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self‑insurance or other Indebtedness with respect to reimbursement‑type obligations regarding workers compensation claims;

 

(f)     Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;

 

(g)     Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Borrower or any of its Subsidiaries in the ordinary course of business;

 

(h)     unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Borrower or any of its Subsidiaries;

 

(i)     (i) Indebtedness of any Loan Party owing to any other Loan Party, (ii) those certain intercompany notes evidencing Indebtedness of the Borrower to Global Power Netherlands B.V. existing on the Closing Date as specified on Schedule 7.03(i) and (iii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02 ;   provided , that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents, (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (C) any payment by any Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro rata reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made;

 

(j)     [reserved];

 

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(k)     Guarantee Obligations with respect to Indebtedness permitted pursuant to clauses (a), (b), (c), (d), (e), (f) and (j) of this Section 7.03 ;

 

(l)     the Existing Letters of Credit and any replacement letters of credit issued by a replacement issuing bank after the Closing Date;

 

(m)     Indebtedness of Foreign Subsidiaries to non-Affiliates in an aggregate principal amount not to exceed $500,000 at any time outstanding; and

 

(n)     Indebtedness of any Loan Party or any Subsidiary thereof not otherwise permitted pursuant to this Section 7.03 in an aggregate principal amount not to exceed $750,000 at any time outstanding.

 

For purposes of determining compliance with this Section 7.03 , all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03 .  Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.

 

Section 7.04      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, except that:

 

(a)     any Subsidiary may merge with (i) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries; provided that when any Subsidiary that is a Loan Party is merging with another Subsidiary, a Loan Party shall be the continuing or surviving Person;

 

(b)     any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party;

 

(c)     any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Subsidiary in accordance with Section 7.02 and Section 7.03 , respectively;

 

(d)     so long as no Default exists or would result therefrom, any Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02 ;   provided that the continuing or surviving Person shall be a Subsidiary, which together with each of its Subsidiaries, shall have complied with the Collateral and Guarantee Requirement and the requirements of Section 6.11 ; and

 

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(e)     any Subsidiary Transaction.

 

Section 7.05      Dispositions .  Make any Disposition or enter into any agreement to make any Disposition, except:

 

(a)     Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries;

 

(b)     Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any applications for registration of any immaterial Intellectual Property to lapse or go abandoned in the ordinary course of business);

 

(c)     Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);

 

(d)     Dispositions of property to the Borrower or a 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 7.02 ;

 

(e)     Dispositions permitted by Section 7.02 Section 7.04 ,   Section 7.06 and Section 7.13 and Liens permitted by Section 7.01 ;

 

(f)     Dispositions in the ordinary course of business of Cash and Cash Equivalents;

 

(g)     the unwinding of any Swap Contract pursuant to its terms;

 

(h)     Dispositions, the proceeds of which (i) are less than $375,000 with respect to any single Disposition or series of related Dispositions, and (ii) when aggregated with the proceeds of all other Dispositions made within the same Fiscal Year, are less than $500,000; provided (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company (or similar governing body)), (2) no less than 100% thereof shall be paid in Cash, and (3) the Net Cash Proceeds thereof shall be applied in accordance with the requirements of Section 2.02(b)(ii) ;  

 

(i)     Dispositions resulting from Casualty Events; provided that the Net Cash Proceeds thereof shall be applied in accordance with the requirements of Section 2.02(b)(iii) ;  

 

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(j)     Disposition of the manufacturing facility owned by Braden Manufacturing SA de CV; and

 

(k)     any Subsidiary Transaction. 

 

Section 7.06      Restricted Payments .  Declare or make, directly or indirectly, any Restricted Payment, except:

 

(a)     to the extent constituting Restricted Payments, the Borrower and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 ,   Section 7.04 ,   Section 7.06 or Section 7.08 ;

 

(b)     the Subsidiaries may make Restricted Payments to Borrower; 

 

(c)     the Subsidiaries of the Borrower may make direct or indirect Restricted Payments to the Loan Parties;

 

(d)     the Borrower or any Subsidiary thereof may pay dividends in shares of its own Qualified Equity Interests; and

 

(e)     the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries.

 

Section 7.07      Change in Nature of Business .  Engage in any line of business other than those lines of business conducted by the Borrower and its Subsidiaries on the date hereof or any business reasonably related or ancillary thereto.

 

Section 7.08      Transactions with Affiliates .  Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than:

 

(a)     transactions on terms substantially as favorable to the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s‑length transaction with a Person other than an Affiliate;

 

(b)     the Transaction, including entering into this Agreement, the Loan Documents, together with all agreements ancillary hereto or thereto;

 

(c)     the repurchase or redemption of capital stock or other Equity Interest of Borrower or its Subsidiaries held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Borrower or its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service in an aggregate principal amount not to exceed $250,000 during any Fiscal Year of the Borrower;

 

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(d)     loans and other transactions by and among the Borrower and/or one or more Subsidiaries to the extent permitted under this Article VII ;  

 

(e)     an agreement to provide shared management services between any Loan Party and a Subsidiary that is not a Loan Party;

 

(f)     customary compensation and indemnification of, and other employment arrangements (including equity incentive plans, employee benefit plans and arrangements, issuance of Equity Interests, payment of bonuses and stock option plans) with, directors, officers and employees of Borrower or any Subsidiary in the ordinary course of business;

 

(g)     Restricted Payments permitted under Section 7.06 ;

 

(h)     other transactions with any Permitted Servicing Joint Venture in the ordinary course of business on terms as favorable as would be obtained by it on a comparable arm’s‑length transaction with an independent, unrelated third party and, with respect to, material transactions with any Permitted Servicing Joint Venture, as determined in good faith by the board of directors (or equivalent governing body) of the Borrower; and

 

(i)     the provision of goods or engineering, design, procurement, project management, quality management or other services by the Borrower or any Subsidiary to the Borrower or any other Subsidiary pursuant to purchase orders issued in the ordinary course of business in connection with third party contracts.

 

Section 7.09      Prepayments of Certain Indebtedness; Modifications of Certain Indebtedness and Material Agreements .  Except in each case as otherwise expressly permitted by this Agreement:

 

(a)     directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness prior to its scheduled maturity, other than (i) the Obligations, (ii) Indebtedness secured by a Permitted Lien if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Section 7.05 and (iii) the Indebtedness under the ABN AMRO Facility solely to the extent repaid solely by the primary obligor thereunder from cash on the balance sheet; and

 

(b)     (i) [reserved], (ii) amend, modify or otherwise change, or agree to any amendment, modification or change of the terms of the ABN AMRO Facility (including, without limitation, any amendment or modification to shorten the maturity date thereunder) if such amendment, termination or waiver would be materially adverse to the Lenders or (iii) amend or permit any amendments to, or terminate or waive any provision of, any Material Agreement if such amendment, termination, or waiver would be materially adverse to the Lenders.

 

Section 7.10      Negative Pledge .  Enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist, (a) any agreement prohibiting or conditioning the

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creation or assumption of any Lien upon any of its property or assets except (i) agreements in favor of the Collateral Agent or (ii) prohibitions or conditions under (w) any Capital Lease permitted by Section 7.03(c) solely to the extent that such Capital Lease prohibits a Lien on the property subject thereto, (x) by reason of customary provisions restricting pledges, assignments, subletting or other transfers contained in leases, licenses and similar agreements entered into in the ordinary course of business (provided that such restrictions are limited to the property or assets subject to such leases, licenses or similar agreements, as the case may be, (y) [reserved] or (z) under the ABN AMRO Facility or (b) any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Indebtedness owed to, make loans or advances to, or otherwise transfer assets to or make Investments in, the Borrower or any of its Subsidiaries of the Borrower (whether through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i) the Loan Documents or (ii) under the ABN AMRO Facility.

 

Section 7.11      Amendments to Constitutive Documents .  Amend, or permit any of its Subsidiaries to amend, its certificate of incorporation or bylaws or other constitutive documents in a manner materially adverse to the interests of the Lenders.

 

Section 7.12      Financial Covenants

 

(a)      Total Leverage Ratio .  Commencing on September 30, 2018, permit the Total Leverage Ratio for the Borrower and its Subsidiaries on a consolidated basis for any Test Period ending on and as of the last day of a fiscal quarter set forth below to be greater than the ratio set forth opposite such Test Period below:

 

Fiscal Quarter Ending

Total Leverage Ratio

September 30, 2018

3.25:1.00

 

 

December 31, 2018

3.25:1.00

 

 

March 31, 2019

2.35:1.00

 

 

June 30, 2019

2.00:1.00

 

 

September 30, 2019

1.75:1.00

 

 

December 31, 2019

1.75:1.00

 

 

March 31, 2020

1.50:1.00

 

 

June 30, 2020

1.50:1.00

 

 

September 30, 2020

1.50:1.00

 

 

December 31, 2020

1.50:1.00

 

 

March 31, 2021

1.50:1.00

 

 

June 30, 2021

1.50:1.00

 

 

September 30, 2021

1.50:1.00

 

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(b)      Fixed Charge Coverage Ratio .  Commencing on September 30, 2018, permit the Fixed Charge Coverage Ratio for the Borrower and its Subsidiaries on a consolidated basis for any Test Period ending on and as of the last day of a fiscal quarter set forth below to be less than the ratio set forth opposite such Test Period below:

 

 

 

Fiscal Quarter Ending

Fixed Charge Coverage Ratio

September 30, 2018

1.50:1.00

 

 

December 31, 2018

1.50:1.00

 

 

March 31, 2019

1.75:1.00

 

 

June 30, 2019

2.00:1.00

 

 

September 30, 2019

2.25:1.00

 

 

December 31, 2019

2.50:1.00

 

 

March 31, 2020

2.75:1.00

 

 

June 30, 2020

3.00:1.00

 

 

September 30, 2020

3.00:1.00

 

 

December 31, 2020

3.00:1.00

 

 

March 31, 2021

3.00:1.00

 

 

June 30, 2021

3.00:1.00

 

 

September 30, 2021

3.00:1.00

 

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(c)      Maximum Capital Expenditures .  Commencing on December 31, 2017, permit Capital Expenditures for the Borrower and its Subsidiaries on a consolidated basis for any Test Period ending on and as of the last day of a fiscal quarter set forth below to be more than the ratio set forth opposite such Test Period below:

 

 

 

Fiscal Quarter Ending

Maximum Capital Expenditures

December 31, 2017

$4,750,000

 

 

March 31, 2018

$4,750,000

 

 

June 30, 2018

$4,500,000

 

 

September 30, 2018

$3,500,000

 

 

December 31, 2018

$4,000,000

 

 

March 31, 2019

$4,000,000

 

 

June 30, 2019

$4,000,000

 

 

September 30, 2019

$4,000,000

 

 

December 31, 2019

$4,000,000

 

 

March 31, 2020

$4,000,000

 

 

June 30, 2020

$4,000,000

 

 

September 30, 2020

$4,000,000

 

 

December 31, 2020

$4,000,000

 

 

March 31, 2021

$4,000,000

 

 

June 30, 2021

$4,000,000

 

 

September 30, 2021

$4,000,000

 

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(d)      [Reserved] .

 

(e)      Minimum Liquidity .  During the period commencing on the Closing Date through and until the earlier of the date of the (i) payment of the 2018 Amortization Payment and (ii) final closing of an Initial Subsidiary Transaction, permit Liquidity reflected on the balance sheet of the Borrower and its Domestic Subsidiaries on a consolidated basis, as of the last day of each month to be less than $2,500,000.

 

Section 7.13      Sale Leasebacks . No Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which such Loan Party (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Company or any of its Subsidiaries) or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by such Loan Party to any Person (other than the Company or any of its Subsidiaries) in connection with such lease, except for any Sale Leaseback set forth on Schedule 7.13 .

 

Section 7.14      Accounting Changes .  Make any change in (a) accounting policies or reporting practices, except as required by GAAP or (b) Fiscal Year.

 

Section 7.15      OFAC .  (a) Become a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) engage in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner that violates Section 2 of such executive order or (c) become a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to blocking or specific trade restrictions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or implementing executive order.

 

Section 7.16      Braden Holdings, LLC   As to Braden Holdings, LLC, engage in any business or activity other than (i) the ownership of 99.998% of the outstanding Equity Interests in GPEG Mexico Distributing, SA de CV, (ii) maintaining its corporate existence, (iii) the performance of obligations under the Loan Documents, and (iv) activities incidental to the businesses or activities described in clauses (i)‑(iii).

 

ARTICLE VIII

 

EVENTS OF DEFAULT AND REMEDIES

 

Section 8.01      Events of Default .  Any of the following events referred to in any of clauses (a)  through (l) inclusive of this Section 8.01 shall constitute an “ Event of Default ”:

 

(a)      Non‑Payment .  Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or (ii) within three (3) Business Days

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after the same becomes due, any interest on any Loan or any other amount payable hereunder or with respect to any other Loan Document; or

 

(b)      Specific Covenants .  The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01(a) ,   (b) and (c) ,   Section 6.03 ,   Section 6.05 (with respect to such Person's legal existence), Section 6.08 ,   Section 6.11 ,   Section 6.12 ,   Section 6.14 ,   Section 6.16 ,   Section 6.18 ,   Section 6.19 or Article VII ; or

 

(c)      Other Defaults .  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(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 after receipt by the Borrower of written notice thereof by the Administrative Agent or the Required Lenders; or

 

(d)      Representations and Warranties .  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

 

(e)      Cross‑Default .  Any Loan Party or any Subsidiary (i) fails to make any payment beyond the applicable grace period with respect thereto, if any (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder) having an aggregate principal amount of not less than the Threshold Amount (including, for the avoidance of doubt, the ABN AMRO Facility), or (ii) fails to observe or perform any other agreement or condition relating to any such Indebtedness, 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 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 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

 

(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 a general assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, interim receiver, receiver and manager, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, interim receiver, receiver and manager, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver 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

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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 Subsidiary 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 in respect of a claim in excess of the Threshold Amount is issued or levied against all or any material part of the property of the Loan Parties, taken as a whole, and is not released, vacated, stayed or fully bonded within sixty (60) days after its issue or levy; or

 

(h)      Judgments .  There is entered against any Loan Party or any Subsidiary a final judgment or order 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 has been notified of such judgment or order and does not deny or fail to confirm coverage) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or

 

(i)      ERISA .  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in liability of any Loan Party under Title IV of ERISA in an aggregate amount which would reasonably be expected to exceed the Threshold Amount, (ii) any Loan Party, Subsidiary 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 which would reasonably be expected to exceed the Threshold Amount, or (iii) any Loan Party, Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual contributions of the Loan Parties, the Subsidiaries and the ERISA Affiliates to all Multiemployer Plans that are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such reorganization or termination occurs by an aggregate amount which would reasonably be expected to exceed the Threshold Amount; or

 

(j)      Invalidity of Loan Documents .  Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments), purports to revoke or rescind any Loan Document or asserts that any Guarantee, Collateral Document or subordination provision in respect of

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any Indebtedness in excess (in the aggregate) of the Threshold Amount is invalid or unenforceable; or

 

(k)      Change of Control .  There occurs any Change of Control; or

 

(l)      Liens .  Any Collateral Document or financing statement after delivery thereof pursuant to Section 4.01 ,   Section 6.11 or Section 6.13 and, to the extent applicable, timely and proper filing thereof with applicable authorities, shall for any reason cease to create a valid and perfected first priority lien on and security interest in the Collateral having an aggregate fair market value in excess of $250,000 purported to be covered thereby, except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent and the Collateral Agent to maintain possession of certificates actually received by it representing securities pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements in the applicable jurisdictions as required under the Uniform Commercial Code to continue the perfection of such security interest or the equivalent in the applicable jurisdiction.

 

Section 8.02      Remedies Upon Event of Default .  If any Event of Default occurs and is continuing, the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:

 

(a)     declare the commitment (if any) of each Lender to make Loans to be terminated, whereupon such commitments and obligations shall be terminated;

 

(b)     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;

 

(c)     set-off against any outstanding Obligations amounts held for the account of the Loan Parties as cash collateral or in the accounts of any Loan Party maintained by or with the Administrative Agent, any Lender or their respective Affiliates; and

 

(d)     exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;

 

provided that upon the occurrence of an Event of Default under Sections 8.01(f) and (g) , the obligation of each Lender to make Loans 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 without further act of any Agent or any Lender.

 

Section 8.03      Application of Funds .  If the circumstances described in Section 2.08(g)  have occurred, or after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable), including in any

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proceeding under any Debtor Relief Law, 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 (other than principal and interest, but including Attorney Costs payable under Section 10.04 and Section 10.05 and amounts payable under Article III ) payable to each Agent in its capacity as such;

 

Second , to payment of that portion of the Obligations constituting the Upfront First-Out Fee, any accrued but uncapitalized Unpaid First-Out PIK Fee Amounts and the Exit Fee, ratably among the Lenders in proportion to the respective amounts described in this clause Second payable to them;

 

Third , to payment of that portion of the Obligations constituting the Upfront Initial Fee and any accrued but uncapitalized Unpaid Initial PIK Fee Amounts, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth , to payment of that portion of the Obligations constituting indemnities and other amounts (other than principal and interest) payable to the Lenders (including amounts payable under Article III ), in each case relating to the First-Out Loans, ratably among them in proportion to the amounts described in this clause Fourth payable to them;

 

Fifth , to payment of that portion of the Obligations constituting indemnities and other amounts (other than principal and interest) payable to the Lenders (including amounts payable under Article III ), in each case relating to the Initial Loans, ratably among them in proportion to the amounts described in this clause Fifth payable to them;

 

Sixth , to payment of that portion of the Obligations constituting accrued, unpaid interest (including, but not limited to, Default Rate interest, accrued but uncapitalized PIK Interest and post‑petition interest) and the Prepayment Premium, in each case relating to the First-Out Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Sixth payable to them;

 

Seventh , to payment of that portion of the Obligations constituting accrued, unpaid interest (including, but not limited to, Default Rate interest, accrued but uncapitalized PIK Interest and post‑petition interest) and the Prepayment Premium, in each case relating to the Initial Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Seventh payable to them;

 

Eighth , to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, in each case relating to the First-Out Loans, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date;

 

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Ninth , to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, in each case relating to the Initial Loans, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; 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.

 

Section 8.04      Other Amounts Due .  In the event of repayment of the Obligations at any time prior to the Maturity Date with respect to the Initial Loans or the First-Out Loan Repayment Date with respect to the First-Out Loans, for any reason, including (i) upon an acceleration of the Obligations under this Agreement whether pursuant to the actions of the Required Lenders or automatically, (ii) foreclosure and sale of the Collateral, (iii) sale of the Collateral in any proceeding under any Debtor Relief Law or (iv) pursuant to any restructuring, reorganization or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure or arrangement in any proceeding under any Debtor Relief Law, then in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Administrative Agent and the Lenders or profits lost by the Administrative Agent and the Lenders as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimate and calculation of the lost profits or damages of the Administrative Agent and the Lenders, there shall be an amount due and payable to the Lenders equal to the full amount of (i) the Prepayment Premium that would have been payable pursuant to Section 2.02(a)(ii) hereof as if the Obligations were voluntarily repaid upon such repayment date, (ii) the Upfront Initial Fee, the Upfront First-Out Fee, plus all accrued and uncapitalized Upfront Initial Fee PIK Amounts and all accrued and uncapitalized Upfront First-Out Fee PIK Amounts, and (iii) the Exit Fee.

 

ARTICLE IX

 

ADMINISTRATIVE AGENT AND OTHER AGENTS

 

Section 9.01      Appointment and Authorization of Agents .  (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained in this Agreement or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any 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

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is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

 

Notwithstanding any provision contained in this Agreement providing for any action in the Administrative Agent’s reasonable discretion or approval of any action or matter in the Administrative Agent’s reasonable satisfaction, the Administrative Agent 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.  The Administrative Agent 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 the Borrower, any other Loan Party or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any other Agent‑Related Person in any capacity.

 

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 the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

(b)      The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest, charge or other Lien created by the Collateral Documents for and on behalf of or on trust for) such Lender 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 reasonably 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 9.02 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 IX (including Section 9.07 , 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.    

 

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Section 9.02      Delegation of Duties .  The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through Affiliates, agents, employees or attorneys‑in‑fact, such sub‑agents as shall be deemed necessary by the Administrative Agent, and shall be entitled to advice of counsel, both internal and external, and other consultants or experts concerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub‑agent or attorney‑in‑fact that it selects in the absence of gross negligence or willful misconduct.

 

Section 9.03      Liability of Agents .  No Agent‑Related Person shall (a) be liable to any Lender for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender or Participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder.  No Agent‑Related Person shall be under any obligation to any Lender or Participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof.

 

Section 9.04      Reliance by Agents .  (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by such Agent.  Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders.

 

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(b)     For purposes of determining compliance with the conditions specified in Section 4.01 , 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 Closing Date specifying its objection thereto.

 

Section 9.05      Notice of Default .  The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default”.  The Administrative Agent will promptly notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VIII ;   provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.

 

Section 9.06      Credit Decision; Disclosure of Information by Agents .  Each Lender acknowledges that no Agent‑Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent‑Related Person to any Lender as to any matter, including whether Agent‑Related Persons have disclosed material information in their possession.  Each Lender represents to each Agent that it has, independently and without reliance upon any Agent‑Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower and the other Loan Parties hereunder.  Each Lender also represents that it will, independently and without reliance upon any Agent‑Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and the other Loan Parties.  Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent‑Related Person.

 

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Section 9.07      Indemnification of Agents .  Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent‑Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent‑Related Person from and against any and all Indemnified Liabilities to the extent incurred by it; provided that no Lender shall be liable for the payment to any Agent‑Related Person of any portion of such Indemnified Liabilities to the extent resulting from such Agent‑Related Person’s own gross negligence or willful misconduct, as determined by the final non‑appealable judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07 .  In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person.  Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out‑of‑pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower; provided that such reimbursement by the Lenders shall not affect the Borrower’s continuing reimbursement obligations with respect thereto, if any.  The undertaking in this Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent.

 

Section 9.08      Agents in their Individual Capacities .  Each Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though such Agent were not an Agent hereunder and without notice to or consent of the Lenders.  The Lenders acknowledge that, pursuant to such activities, each Agent or its Affiliates may receive information regarding any Loan Party or any Affiliate of a Loan Party (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that no Agent shall be under any obligation to provide such information to them.  With respect to its Loans, each Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not an Agent, and the terms “Lender” and “Lenders” include such Agent in its individual capacity.

 

Section 9.09      Successor Agents .  The Administrative Agent may resign as the Administrative Agent upon thirty (30) days’ notice to the Lenders and the Borrower.  If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint a successor agent for the Lenders, which appointment of a successor agent shall require the consent of the Borrower at all times other than during the existence of an Event of Default under Section 8.01(a) ,   (f) or (g) (which consent of the Borrower shall not be unreasonably withheld or

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delayed).  If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and, if no Default has occurred and is continuing, the Borrower, a successor agent from among the Lenders.  Upon the acceptance of its appointment as successor agent hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent”, shall mean such successor administrative agent and/or supplemental administrative agent, as the case may be, and the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent shall be terminated.  After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX and Section 10.04 and Section 10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.  If no successor agent has accepted appointment as the Administrative Agent by the date which is thirty (30) days following the retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.  Lenders assuming the role of Administrative Agent as specified in the immediately preceding sentence shall assume the rights and obligations of the Administrative Agent (including the indemnification provisions set forth in Section 9.07 ) as if each such Lender were the Administrative Agent.  Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably request, in order to (a) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (b) otherwise ensure that the Collateral and Guarantee Requirement is satisfied, the successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents.

 

Section 9.10      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 shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

 

(a)     to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due

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the Lenders and the Administrative Agent under Section   2.05 ,   Section   10.04 and Section   10.05 or otherwise hereunder) allowed in such judicial proceeding; and

 

(b)     to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and

 

(c)     any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender 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, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due to the Administrative Agent under Section   2.05 ,   Section 10.04 and Section   10.05 or otherwise hereunder.

 

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 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.

 

Section 9.11      Release of Collateral and Guaranty .  The Lenders irrevocably agree, authorize and direct the Administrative Agent and Collateral Agent:

 

(a)     to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full in cash of all Obligations (other than (A) contingent indemnification obligations not yet accrued and payable and (B) any other obligation (including a guarantee) that is contingent in nature) (the date upon which the conditions in this Section 9.11(a)(i) shall have been satisfied, the “ Termination Date ”), (ii) upon any permitted sale, lease, transfer or other disposition of any item of Collateral of any Loan Party (including, without limitation, as a result of the sale, in accordance with the terms of the Loan Documents, of the Loan Party that owns such Collateral) in accordance with the terms of the Loan Documents, (iii) subject to Section  10.01 , if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders, or (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (b) below;

 

(b)     to release any Guarantor from its obligations under the Guaranty upon (i) in the case of any Subsidiary, such Person ceasing to be subject to the Collateral and Guarantee Requirement and Section  6.11 as a result of a transaction permitted hereunder (as certified by a Responsible Officer) and the Borrower notifying the Administrative Agent in writing that it wishes such Guarantor to be released from its obligations under the Guaranty or (ii) the Termination Date; and

 

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(c)     to subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 7.01(h) and (i) .

 

The Collateral Agent will, at the Borrower’s expense, execute and deliver to such Loan Party such documents as such Loan Party may reasonably request to evidence the release of Collateral pursuant to this Section 9.11 from the assignment and security interest granted under the Collateral Documents (or the release of the Guarantor from its Guarantee of the Obligations) in accordance with the terms of the Loan Documents ( provided that the Borrower shall have delivered to the Collateral Agent a certificate of a Responsible Officer certifying that such transaction has been consummated in compliance with the Loan Documents).  Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property in accordance with this Section 9.11 .

 

ARTICLE X

MISCELLANEOUS

 

Section 10.01      Amendments, Etc.  No amendment or waiver of any provision of this Agreement, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided ,   however , that:

 

(a)     no amendment, waiver or consent shall, unless in writing and signed by all of the Lenders, do any of the following at any time:

 

(i)     change the number of Lenders or the percentage of (x) the Commitments or (y) the aggregate unpaid principal amount of Loans that, in each case, shall be required for the Lenders or any of them to take any action hereunder (including pursuant to any change to the definition of “ Required Lenders ”),

 

(ii)     release one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the Obligations owing to the Agents and the Lenders under the Guaranties) if such release or limitation is in respect of all or substantially all of the value represented by the Guaranties to the Lenders,

 

(iii)     release, or subordinate the Administrative Agent’s Liens in, all or substantially all of the Collateral in any transaction or series of related transactions (other than in connection with any sale of Collateral permitted herein), or

 

(iv)     amend any provision of this Section 10.01 ;

 

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(b)     no amendment, waiver or consent shall, unless in writing and signed by each Lender specified below for such amendment, waiver or consent:

 

(i)     increase the Commitments of a Lender without the consent of such Lender;

 

(ii)     reduce the principal of, or stated rate of interest on, or stated premium payable on, the Loans owed to a Lender or any fees or other amounts stated to be payable hereunder or under the other Loan Documents to such Lender without the consent of such Lender; provided if the Required Lenders agree to waive any Event of Default and such waiver is effective in accordance with this Section  10.01 or if the Required Lenders agree to change any financial definitions that would reduce the stated rate of interest or any fees or other non‑principal amounts stated to be payable hereunder or under the other Loan Documents pursuant to any amendment, waiver or consent not being effected in order to reduce the stated rate of interest or such fees or other amounts, then only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the Default Rate in connection with such waived Event of Default or reduce the stated rate of interest or such fees in connection with such amendment, waiver or consent described in this proviso to clause (b)(ii) , as applicable; or

 

(iii)     postpone any date scheduled for any payment of principal of, or interest on, the Loans, any date scheduled for payment or for any date fixed for any payment of fees hereunder in each case payable to a Lender without the consent of such Lender; or

 

(iv)     change the order of application of prepayment of Loans from the application thereof set forth in the applicable provisions of Section 2.02(b)(vii) or Section 8.03 in any manner that adversely affects the Lenders under the Facility without the consent of holders of a majority of the Commitments or Loans outstanding under the Facility or otherwise change any provision requiring the pro rata distributions hereunder among the Lenders without all Lenders’ consent; or

 

(v)     modify Section 2.09 without the consent of each Lender directly and adversely affected thereby;

 

provided   further that no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Lenders required above to take such action, affect the rights or duties of such Agent under this Agreement or the other Loan Documents.

 

Notwithstanding anything to the contrary contained in this Section  10.01 , this Agreement and any other Loan Document may be amended, supplemented and waived with the consent of the Administrative Agent and the Borrower without the need to obtain the consent of any other Lender if such amendment, supplement or waiver is delivered in order to (i) cure ambiguities, omissions, mistakes or defects, (ii) to cause any Collateral Document to be

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consistent with this Agreement and the other Loan Documents or (iii) amend the Financial Covenants in accordance with Section 1.03(b) .

 

Section 10.02      Notices and Other Communications; Facsimile and Electronic Copies .  (a)  General .  Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission) (and, as to service of process, only in writing and in accordance with applicable law) and, to the extent set forth in Section 10.02(e) , in an electronic medium and delivered as set forth in Section 10.02(e) .  All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or 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:

 

(i)     if to the Borrower or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties from time to time; and

 

(ii)     if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a written notice to the Borrower and the Administrative Agent.

 

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; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(b) ), when delivered; provided  that notices and other communications to the Borrower and the Administrative Agent pursuant to Article II shall not be effective until actually received by such Person during the Person’s normal business hours.  In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.

 

(b)      Effectiveness of Facsimile Documents and Signatures .  Loan Documents may be transmitted and/or signed by facsimile or other electronic transmission (including a .pdf or .tif copy); provided that original copies are delivered promptly thereafter (it being understood that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by facsimile or electronic transmission).

 

(c)      Reliance by Agents and Lenders .  The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices 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 written confirmation

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thereof.  The Borrower shall indemnify each Agent‑Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence or willful misconduct by such Agent‑Related Person or such Lender.  All telephonic notices to the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

 

(d)      Notice to other Loan Parties .  The Borrower agrees that notices to be given to any other Loan Party under this Agreement or any other Loan Document may be given to the Borrower in accordance with the provisions of this Section 10.02 with the same effect as if given to such other Loan Party in accordance with the terms hereunder or thereunder.

 

(e)     The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (ii) provides notice of any Default or Event of Default under this Agreement or (iii) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other Credit Extension hereunder (all such non‑excluded communications being referred to herein collectively as “ Communications ”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent to an electronic mail address specified by the Administrative Agent to the Borrower.  In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent. 

 

(f)     The Administrative Agent agrees that the receipt in accordance with Section 10.02 of the Communications by the Administrative Agent at its e‑mail address set forth on Schedule 10.02 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.  Each Lender agrees (i) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e‑mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e‑mail address.  Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

 

Section 10.03      No Waiver; Cumulative Remedies .  No failure by any Lender 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.

 

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Section 10.04      Costs and Expenses .  The Borrower agrees (a) to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable and documented out‑of‑pocket costs and expenses incurred before, on or after the Closing Date in connection with the preparation, execution, delivery and administration of this Agreement and the other Loan Documents, including all Attorney Costs of counsel to the Administrative Agent and the Collateral Agent, and, to the extent reasonably necessary, local counsel in any relevant jurisdiction, (b) to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable and documented out‑of‑pocket costs and expenses incurred after the Closing Date in connection with any amendment, waiver, consent or other modification of the provisions hereof and thereof requested by the Borrower or negotiated in consultation with Borrower (in each case, whether or not the transactions contemplated thereby are consummated), including all Attorney Costs of counsel to the Administrative Agent and the Collateral Agent, and, to the extent reasonably necessary, local counsel in any relevant jurisdiction and (c) after the occurrence of an Event of Default, to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable and documented out‑of‑pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all costs and expenses incurred in connection with any workout or restructuring in respect of the Loans, all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and counsel to the Administrative Agent and the Collateral Agent, and, to the extent reasonably necessary, local counsel in any relevant jurisdiction).  The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other reasonable and documented out‑of‑pocket expenses incurred by any Agent.  The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations.  All amounts due under this Section 10.04 shall be paid within ten (10) Business Days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail.  If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.

 

Section 10.05      Indemnification by the Borrower .  (a) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless each Agent‑Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys‑in‑fact (collectively the “ Indemnitees ”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged violation of Environmental Law, presence or Release of Hazardous Materials on, at, under or from any property currently or

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formerly owned or operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental Action or Environmental Liability related to the Borrower, any Subsidiary or any other Loan Party, 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 (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv) , a “ Proceeding ”) (all the foregoing described in clauses (i) to (iv), collectively, the “ Indemnified Liabilities ”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnified Party, a third party or by the Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnified Party is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non‑appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such.  No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document.  All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after written demand therefor; provided , that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof.  The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

 

(b)     The Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, the Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a) .  The Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non‑disparagement provisions.

 

(c)     In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against the Borrower or any of its

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Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, the Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

 

Section 10.06      Payments Set Aside .  To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent 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 such Agent 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 severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any 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 Federal Funds Rate.

 

Section 10.07      Successors and Assigns .  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that, except as otherwise provided herein (including without limitation as permitted under Section 7.04 ), the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the requirements of Section 10.07(b) , (ii) by way of participation in accordance with the provisions of Section 10.07(d) , (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(f)  or (iv) to an SPC in accordance with the provisions of Section 10.07(g)  (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 Section 10.07(d)  and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)     (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees (each, an “ Assignee ”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent in each case not to be unreasonably withheld or delayed) of the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Loan to another Lender, an Affiliate of a Lender or an Approved Fund.

 

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(ii)     Assignments shall be subject to the following additional conditions:

 

(A)     except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or 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) shall not be less than $100,000 unless the Administrative Agent otherwise consents; provided that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;

 

(B)     the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption; and

 

(C)     the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any documentation required by Section 3.01(g) .

 

From and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be party to this Agreement as a Lender with respect to the interest assigned and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement in addition to any rights and obligations otherwise held by such assignee as 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 ,   3.02 ,   3.04 ,   3.05 (or any other increased costs protection provision), 10.04 and 10.05 ).  Upon request, and the surrender by the assigning Lender of its Note (if any), 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 clause (b)  shall not be an effective assignment hereunder.

 

(c)     Each Lender, acting solely for this purpose as an agent of Borrower, shall maintain at one of its offices a register for the recordation of the name and address of any assignee of any Lender and the outstanding principal amount (and stated interest) of the Loans owing thereto (the “ Register ”). The entries in the Register shall be conclusive, absent manifest error, and Borrower shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as the “Lender” hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by Borrower, at any reasonable time and from time to time upon reasonable prior notice.  Notwithstanding anything herein to the contrary, any assignment of the Loans shall be effective only upon appropriate entries with respect thereto being made in the Register.

 

(d)     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 (x) a natural person and (y) the Borrower or any of its Affiliates) (each, a “ Participant ”) in all or a portion of

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such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the 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 Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; 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 Section  10.01 (a) , or Section  10.01 (b) that directly affects such Participant.  Subject to Section 10.07(e) , the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 (subject to the requirements of Section 3.01 , including Section 3.01(e) and Section 3.01(f) ), 3.04 and 3.05 (through the applicable Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b) .  To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.09 as though it were a Lender.  Any Lender that sells participations shall maintain a register meeting the requirements of Treasury Regulation Section 5f.103‑1(c) (or any successor regulation), on which it enters the name and the address of each Participant and the principal amounts of each Participant’s participation interest in the Commitments and/or Loans (or other rights or obligations) held by it (the “ Participant Register ”).  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 interest as the owner thereof for all purposes notwithstanding any notice to the contrary.  In maintaining the Participant Register, such Lender shall be acting as the agent of the Borrower solely for purposes of Treasury Regulation Section 5f.103‑1(c) and undertakes no other duty, responsibility or obligation to the Borrower (including, without limitation, in no event shall such Lender be considered a fiduciary of the Borrower for any purpose).  In addition to maintaining the Participant Register, such Lender shall, upon request, show the Participant Register to the Borrower.

 

(e)     A Participant shall not be entitled to receive any greater payment under Section 3.01 ,   3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.

 

(f)     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 or central bank having jurisdiction over such Lender; 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.

 

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(g)     Notwithstanding anything to the contrary contained herein, any Lender (a “ Granting Lender ”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “ SPC ”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof.  Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section 3.01 ,   3.04 or 3.05 ), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable and such liability shall remain with the Granting Lender, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder.  The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non‑public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee Obligation or credit or liquidity enhancement to such SPC.

 

(h)     Notwithstanding anything to the contrary contained herein, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07 , (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. 

 

Section 10.08      Confidentiality .  Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information and to not use or disclose such information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ directors, officers, employees, trustees, investment advisors and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any Governmental Authority or examiner regulating any Lender; (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) to any pledgee referred to in Section 10.07(f)  or Section 10.07(h) , Eligible Assignee of or Participant in,

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or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement (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); (f) with the written consent of the Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08 by the disclosing party; (h) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender); (i) to the extent not known by it to consist of non‑public information, (j) for purposes of establishing a “due diligence” defense or (k) 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.  In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions.  For the purposes of this Section 10.08 , “ Information ” means all information received from any Loan Party or its Affiliates or its Affiliates’ directors, officers, employees, trustees, investment advisors or agents, relating to the Borrower or its Subsidiaries or their business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08 , including, without limitation, information delivered pursuant to Section 6.01 ,   6.02 or 6.03 hereof.

 

Section 10.09      Setoff .  In addition to any rights and remedies of the Agents and the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each Agent and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) 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) at any time held by, and other Indebtedness at any time owing by, such Lender and its Affiliates or such Agent and its Affiliates, as the case may be, to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates or such Agent and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate thereof shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness.  Each Lender and Agent agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender or Agent, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application.  The rights of each Agent and each under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that such Agent and such Lender may have.

 

Section 10.10      Counterparts .  This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all

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of which together shall constitute one and the same instrument.  Delivery by facsimile transmission or other electronic transmission (including a .pdf or .tif copy) of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document; provided that original signatures shall be promptly delivered thereafter, it being understood that that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by facsimile or electronic transmission.

 

Section 10.11      Integration .  This Agreement 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 or inconsistency between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict or inconsistency with this Agreement.  Each Loan 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.

 

Section 10.12      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 each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any 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.

 

Section 10.13      Severability .  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

Section 10.14      GOVERNING LAW .  (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (EXCEPT, WITH RESPECT TO ANY OTHER LOAN DOCUMENT, AS OTHERWISE EXPRESSLY PROVIDED THEREIN).

 

(b)     ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN

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NEW YORK COUNTY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS.  THE BORROWER, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.

 

Section 10.15      WAIVER OF RIGHT TO TRIAL BY JURY .  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.15 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

Section 10.16      Binding Effect .  This Agreement shall become effective when it shall have been executed by the Borrower, the Administrative Agent and the Collateral Agent, and the Administrative Agent shall have been notified by each Lender that each such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each such Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.

 

Section 10.17      Lender Action .  Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self‑help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, without the prior written consent of the Administrative Agent.  The provision of this Section 10.17  are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.

 

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Section 10.18      PATRIOT Act .  Each Lender hereby notifies the Borrower that pursuant to the requirements of the PATRIOT 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 to identify the Borrower in accordance with the PATRIOT Act.  The Borrower agrees to provide, and to cause each other Loan Party to provide, such information promptly upon request.

 

Section 10.19      No Advisory or Fiduciary Responsibility .  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges and agrees that it has informed its Subsidiaries, that:  (i) (A) no fiduciary, advisory or agency relationship between the Borrower and its Subsidiaries and any Agent or any Lender is intended to be or has been created in respect of any of the transactions contemplated hereby and by the other Loan Documents, irrespective of whether any Agent or any Lender has advised or is advising the Borrower and its Subsidiaries on other matters, (B) the arranging and other services regarding this Agreement provided by the Agents and the Lenders are arm’s‑length commercial transactions between the Borrower and its Subsidiaries, on the one hand, and the Agents and the Lenders, on the other hand, (C) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (D) 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; (ii) (A) the Agents and the Lenders each is and has been acting solely as a principal and, except as may otherwise be 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 its Affiliates, or any other Person and (B) no Agent 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 (iii) the Agents 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 no Agent or Lender has any obligation to disclose any of such interests and transactions to the Borrower or any of its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Agents and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

[Remainder of Page Intentionally Blank]

 

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Exhibit 10.54

 

EXECUTION VERSION

 

SEPARATION AGREEMENT

This Separation Agreement (this “ Agreement ”) is made and entered into as of August 1, 2017, by and between Mark Jolly (the “ Executive ”) and Global Power Equipment Group Inc. (the “ Company ”). The Company and Executive are sometimes collectively referred to herein as the Parties and individually as a Party . As used in this Agreement, the term “ affiliate ” shall mean any entity controlled by, controlling, or under common control with, the Company.  

WHEREAS , Executive has been employed as Chief Accounting Officer of the Company pursuant to a letter agreement between Executive and the Company dated November 8, 2016 (the “ Letter Agreement ”).

WHEREAS , Executive and the Company have determined to provide for the rights and obligations of the Parties in connection with the termination of Executive’s employment with the Company and its affiliates, as set forth herein.

NOW, THEREFORE , in consideration of the foregoing recitals, the mutual promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:

1.         Separation. As of August 1, 2017 (the “ Separation Date ”), Executive’s employment and status as an employee and officer with the Company and its affiliates terminated and Executive ceased to be an employee and officer of any and all of the foregoing. 

2.         Accrued Benefits . The Company will pay and provide to Executive the following payments and benefits:

(a)         Salary and Vacation Pay .  Within 14 calendar days after the Separation Date, or such earlier date as required by law, the Company will issue to Executive his final paycheck, reflecting (i) his earned but unpaid base salary through the Separation Date, and (ii) his accrued but unused vacation pay through the Separation Date, and the parties acknowledge such unused vacation pay equals $7,380.00 (less applicable payroll withholdings).

(b)         Other Benefits .  All Company-provided benefits ceased to accrue on the Separation Date, including but not limited to accrual of vacation, sick, and other benefits.  The Company will continue to provide the existing level of health insurance benefits through August 31, 2017, after which Executive may be eligible for continuation of those health insurance benefits at Executive’s expense pursuant to COBRA, and will receive information regarding election of benefit continuation separately.

3.         Severance Benefits .  In consideration of, and subject to and conditioned upon Executive’s execution and non-revocation of the release attached as Attachment A to this Agreement (the “ Release ”) and the effectiveness of such Release as provided in Section 4 of this Agreement, and provided that Executive has fully complied with his obligations set forth in the Release and Executive continues to comply with his obligations pursuant to Sections 6 and 7 of this Agreement, the Company will pay or provide to Executive the following payments and benefits, which Executive acknowledges and agrees constitute adequate and valuable consideration, in and of themselves, for the promises contained in this Agreement:

 


 

(a)         Severance . The Company shall pay to Executive an amount equal to $260,000 (less applicable payroll withholdings) (the “ Severance Payment ”) payable in accordance with the Company’s normal payroll procedures over the 1 year period commencing on the first payroll date that occurs after the Release becomes effective and irrevocable in accordance with its terms.  The first installment shall include all amounts accrued after the Separation Date to the date of such installment and the remaining installments payable as otherwise scheduled assuming that payments had begun on the first regular payroll date after the Separation Date. 

(b)         Equity Awards . The Company has granted Executive certain restricted share units that were outstanding immediately prior to the Separation Date pursuant to the terms and conditions of the Company’s equity compensation plan and the restricted share unit award agreement(s) between the Parties (the “ Restricted Share Units ”).  The Restricted Share Units that remain outstanding immediately prior to the Separation Date shall vest, to the extent provided under the terms and conditions of the applicable award agreement(s), as if Executive’s employment was terminated without “cause” on the Separation Date.  Any vested Restricted Share Units will be paid to Executive in accordance with the terms, and subject to the conditions, of the award agreement(s) (the “ Equity Agreements ”), and any unvested Restricted Share Units will be forfeited. 

(c)         Prior-Year Annual Incentive .  The Company shall pay to Executive an annual incentive under the Company’s Short-Term Incentive Plan for the 2016 fiscal year, based on actual Company and individual performance during the entire 2016 fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment) (the “Prior-Year Annual Incentive”).  The Prior-Year Annual Incentive (if any) shall be paid in a single lump sum at the same time that payments are made to other participants in the Short-Term Incentive Plan for the 2016 fiscal year.

(d)         Pro-Rated Annual Incentive .  The Company shall pay to Executive an annual incentive under the Company’s Short-Term Incentive Plan for the 2017 fiscal year, based on actual Company and individual performance during the entire 2017 fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment), pro-rated based on the number of days in the Company’s fiscal year through (and including) the Separation Date. The Pro-Rated Annual Incentive (if any) shall be paid in a single lump sum at the same time that payments are made to other participants in the Short-Term Incentive Plan for the 2017 fiscal year.

4.        Release of Claims . Executive agrees that, as a condition to Executive’s right to receive the payments and benefits set forth in Section 3 and the subsidized health insurance in Section 2(b), within 21 calendar days following the Separation Date (the “ Release Period ”), Executive shall execute and deliver the Release to the Company.  If Executive fails to execute and deliver the Release to the Company, or if the Release is revoked by Executive or otherwise does not become effective and irrevocable in accordance with its terms, then Executive will not be entitled to any payment or benefit under Section 3 of this Agreement.

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5.         Effect on Other Arrangements .  Executive acknowledges that the payments and arrangements contained in this Agreement will constitute full and complete satisfaction of any and all amounts properly due and owing to Executive as a result of his employment with the Company and its affiliates and the termination thereof.  Executive agrees that, as of the Separation Date, this Agreement supersedes and replaces the severance terms under any plan, program, policy or practice or contract or agreement of the Company and its affiliates, including the terms of the Letter Agreement, the Global Power Equipment Group Inc. Executive Severance Plan, and that the Company and its affiliates have no further obligations to Executive under any plan, program, policy or practice or contract or agreement.

6.         Restrictive Covenants

a.           Equity Agreements .  Executive acknowledges and agrees that he remains obligated to comply with the provisions of the Non-Competition, Non-Solicitation, Confidentiality and Ownership of Work Product restrictions set forth in Section 7 of the Equity Agreements, or in any other separately executed agreement with the Company, which provisions shall continue to apply, as applicable, in accordance with their terms, on and after the Separation Date, notwithstanding the cessation of Executive’s employment.

b.          Non-Disparagement .  Executive agrees that he will not do or say anything that could reasonably be expected to disparage or impact negatively the name or reputation in the marketplace of the Company or any of its affiliates, employees, officers, directors, stockholders, members, principals or assigns.  Subject to Executive’s continuing obligations to comply with Section 6(a) of this Agreement, and except as otherwise provided in Section 8 of the Release, nothing in this Section 6(b) shall preclude Executive from responding truthfully to any legal process or truthfully testifying in a legal or regulatory proceeding, provided that, to the extent permitted by law, Executive promptly informs the Company of any such obligation prior to participating in any such proceedings.  The Company likewise agrees that it will not release any information or make any statements, and its officers and directors shall not do or say anything that could reasonably be expected to disparage or impact negatively the name or reputation in the marketplace of Executive. Nothing herein shall preclude the Company or any of its affiliates, employees, officers, directors, stockholders, members, principals or assigns from responding truthfully to any legal process or truthfully testifying in a legal or regulatory proceeding, provided that to the extent permitted by law, the Company will promptly inform Executive in advance if it has reason to believe such response or testimony will directly relate to Executive, or preclude the Company from complying with applicable disclosure requirements.

7.         Compensation Recovery Policy .  Executive acknowledges that the payments, if any, under Section 3 of this Agreement shall remain subject to the provisions of the Company’s Compensation Recoupment Policy Acknowledgement and Agreement and the related Compensation Recovery Policy (the “ Compensation Recovery Policy ”), as the same may be amended in order to comply with applicable laws or exchange listing requirements, which agreement and Compensation Recovery Policy shall survive and continue in full force and effect notwithstanding the termination of Executive’s employment.  

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8.         Miscellaneous.

(a)         Section 409A . The intent of the Parties is that payments and benefits under this Agreement comply with Section 409A of the Code (“ Section 409A ”) or are exempt therefrom and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered so as to be in compliance therewith.  If Executive notifies the Company (with specificity as to the reason therefor) that Executive believes that any provision of this Agreement would cause Executive to incur any additional tax or interest under Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company will, after consulting with Executive, reform such provision in a manner that is economically neutral to the Company to attempt to comply with Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Section 409A.  The Parties hereby acknowledge and agree that (i) the payments and benefits due to Executive under Section 3 above are payable or provided on account of Executive’s “separation from service” within the meaning of Section 409A; and (ii) each installment of Severance Payment payable to Executive under Section 3(a) is intended to be treated as a separate payment for purposes of Section 409A that is exempt from Section 409A, to the maximum extent possible, under   the “short-term deferral” exemption of Treasury Regulation Section 1.409A-1(b)(4) and/or the “involuntary separation pay” exemption of Treasury Regulation Section 1.409A-1(b)(9)(iii).  Notwithstanding any provision of this Agreement to the contrary, if Executive is determined by the Company to be a “specified employee” within the meaning of Section 409A, then any payment under this Agreement that is considered nonqualified deferred compensation subject to Section 409A will be paid no earlier than (1) the date that is six months after the date of Executive’s separation from service, or (2) the date of Executive’s death.  In no event may Executive, directly or indirectly, designate the calendar year of any payment under this Agreement.

(b)         Withholding .  The Company or its affiliates, as applicable, may withhold from any amounts payable or benefits provided under this Agreement such federal, state, local, foreign or other taxes as the Company determines are required to be withheld pursuant to any applicable law or regulation. Notwithstanding the foregoing, Executive will be solely responsible and liable for the satisfaction of all taxes, interest and penalties that may be imposed on Executive in connection with this Agreement (including any taxes, interest and penalties under Section 409A of the Code), and neither the Company nor its affiliates will have any obligation to indemnify or otherwise hold Executive harmless from any or all of such taxes, interest or penalties.

(c)         Severability . In construing this Agreement, if any portion of this Agreement is found to be invalid or unenforceable, the remaining terms and provisions of this Agreement will be given effect to the maximum extent permitted without considering the void, invalid or unenforceable provision.

(d)         Successors .  This Agreement is personal to Executive and without the prior written consent of the Company will not be assignable by Executive other than by will or the laws of descent and distribution. This Agreement will inure to the benefit of and be enforceable by Executive’s surviving spouse, heirs and legal representatives. This Agreement will inure to the benefit of and be binding upon the Company and its affiliates, and their respective successors and assigns.

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(e)         Final and Entire Agreement; Amendment .  Except with respect to the provisions of the other documents referenced herein, this Agreement, together with the Release, represents the final and entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations and discussions between the Parties hereto and/or their respective counsel with respect to the subject matter hereof.  Executive has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Agreement.  Any amendment to this Agreement must be in writing, signed by duly authorized representatives of the Parties, and stating the intent of the Parties to amend this Agreement.

(f)          Governing Law; Jurisdiction .  This Agreement and the Release shall be governed by and construed in accordance with the laws of the State of Texas, without reference to conflict of laws principles.  Each Party (i) agrees that any action arising out of or relating to this Agreement or Executive’s employment by the Company shall be brought exclusively in the state courts located in Dallas County, Texas and the United States District Court for the Northern District of Texas (Dallas Division), (ii) accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of those courts, and (iii) irrevocably waives any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens , which it may now or hereafter have to the bringing of any action in those jurisdictions.  

(g)         Notices .  All notices and other communications hereunder will be in writing and will be given by hand delivery to the other Party or by registered or certified mail, return receipt requested, postage prepaid, or by overnight courier, addressed as follows:

If to Executive: at Executive’s most recent address on the records of the Company;

If to the Company:  Global Power Equipment Group Inc., 400 E. Las Colinas Boulevard, Suite No. 400, Irving, TX 75039, Attention:  General Counsel;

or to such other address as either Party will have furnished to the other in writing in accordance herewith.  Notice and communications will be effective on the date of delivery if delivered by hand, on the first business day following the date of dispatch if delivered utilizing overnight courier, or three business days after having been mailed, if sent by registered or certified mail.

(h)         Representation By Counsel .  Each of the Parties acknowledges that it or he has had the opportunity to consult with legal counsel of its or his choice prior to the execution of this Agreement and the Release.  If any ambiguity or question of intent or interpretation arises, this Agreement and the Release shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

(i)          Counterparts . This Agreement and the Release may be executed in one or more counterparts (including by means of facsimile or other electronic transmission), each of which will be deemed an original, but all of which taken together will constitute one original instrument.

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IN WITNESS WHEREOF, the Parties hereto have each executed this Agreement as of the date first above written.

 

 

 

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

 

 

 

 

 

 

By:

/s/ Tracy Pagliara

 

 

 

 

Its:

President and CEO

 

 

 

EXECUTIVE

 

 

 

 

 

/s/ Mark Jolly

 

Mark Jolly

 

 

 

 

6


 

ATTACHMENT A

GENERAL RELEASE

This General Release (this “ Release ”) is made and entered into as of this 1st day of August, 2017, by and between Global Power Equipment Group Inc. (the “ Company ”) and Mark Jolly (“ Executive ”). 

 

1.         Employment Status . Executive’s employment with the Company and its affiliates terminated effective as of August 1, 2017 (the “ Separation Date ”).

 

2.         Payments and Benefits .  Upon the effectiveness of the terms set forth herein, the Company shall provide Executive with the benefits set forth in Section 3 of the Separation Agreement between Executive and the Company dated as of August 1 , 2017 (the “ Separation Agreement ”).   Executive agrees that Executive is not entitled to receive any additional payments as wages, vacation or bonuses except as otherwise provided under Sections 2 or 3 of the Separation Agreement.

 

3.         No Liability . This Release does not constitute an admission by the Company or its affiliates or predecessors, or their respective officers, directors, partners, agents, or employees, or by Executive, of any unlawful acts or of any violation of federal, state or local laws.

 

4.         Release .  In consideration of the payments and benefits set forth in Section 2 of this Release, Executive for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “ Releasors ”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Company, its respective affiliates and their respective predecessors, successors and assigns (the “ Company Group ”) and each of its officers, directors, partners, agents, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “ Releasees ”), and each of them, from any and all claims, demands, actions, causes of action, costs, expenses, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which Executive has, had, or may ever have against the Releasees relating to or arising out of Executive’s employment or separation from employment with the Company Group, from the beginning of time and up to and including the date Executive executes this Release.  This Release includes, without limitation, (a) law or equity claims; (b) contract (express or implied) or tort claims; (c) claims for wrongful discharge, retaliatory discharge, whistle blowing, libel, slander, defamation, unpaid compensation, wage and hour violations, intentional infliction of emotional distress, fraud, public policy contract or tort, and implied covenant of good faith and fair dealing, whether based in common law or any federal, state or local statute; (d) claims under or associated with any of the Company Group’s incentive or equity compensation plans or arrangements; (e) claims arising under any federal, state, or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation, or any other form of discrimination, harassment, or retaliation (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ ADEA ”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991 (“ Title VII ”), the Equal Pay Act of 1963, and the Americans with Disabilities Act of 1990 (“ ADA ”), the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act,

 


 

the Employee Polygraph Protection Act, the Uniformed Services Employment and Reemployment Rights Act of 1994 (“ USERRA ”), the Lilly Ledbetter Fair Pay Act or any other foreign, federal, state or local law or judicial decision); (f) claims arising under the Employee Retirement Income Security Act; and (g) any other statutory or common law claims related to Executive’s employment with the Company Group or the separation of Executive’s employment with the Company Group.

 

Without limiting the foregoing paragraph, Executive represents that Executive understands that this Release specifically releases and waives any claims of age discrimination, known or unknown, that Executive may have against the Company as of the date Executive signs this Release.  This Release specifically includes a waiver of rights and claims under the Age Discrimination in Employment Act of 1967, as amended ,   and the Older Workers Benefit Protection Act.  Executive acknowledges that as of the date Executive signs this Release, Executive may have certain rights or claims under the Age Discrimination in Employment Act, 29 U.S.C. §626 and Executive voluntarily relinquishes any such rights or claims by signing this Release.

 

Notwithstanding the foregoing provisions of this Section 4, nothing herein will release the Company Group from (i) any obligation under the Separation Agreement; (ii) any obligation to provide all benefit entitlements under any Company benefit or welfare plan that were vested as of the Separation Date, including the Company’s 401(k) plan and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; (iii) Executive’s rights of indemnification and directors and officers liability insurance, as applicable and as in effect as of the Separation Date;  and (iv) any rights or claims that relate to events or circumstances that occur after the date that Executive executes this Release. 

 

5.         Representations.  Executive acknowledges and represents that, as an employee of the Company and its affiliates, he has been obligated to, and has been given the full and unfettered opportunity to, report timely to the Company any conduct that would give rise to an allegation that the Company or any affiliate has violated any laws applicable to its businesses or has engaged in conduct which could otherwise be construed as inappropriate or unethical in any way, even if such conduct is not, or does not appear to be, a violation of any law.  Executive acknowledges that a condition of the payment of the benefits under Section 2 of this Release is his truthful and complete representation to the Company regarding any such conduct, including but not limited to conduct regarding compliance with the Company’s Code of Business Conduct and Ethics, policies and procedures, and with all laws and standards governing the Company’s business.  Executive’s truthful and complete representation, based on his thorough search of his knowledge and memory, is as follows:  Executive has not been directly or indirectly involved in any such conduct; no one has asked or directed his to participate in any such conduct; and Executive has no specific knowledge of any conduct by any other person(s) that would give rise to an allegation that the Company or any affiliate has violated any laws applicable to its businesses or has engaged in conduct which could otherwise be construed as inappropriate or unethical in any way.

 

6.         Return of Property.  Executive warrants and represents that Executive has surrendered to the Company all documents, materials, and other property of the Company and/or

 


 

its clients and has not photocopied or reproduced such documents.  Executive further warrants and represents that Executive has returned to the Company any and all Company computer equipment and software, and any and all other equipment of the Company in Executive’s possession in good working order and reasonable condition, including any keys.

 

7.         Representation of No Pending Action and Agreement Not to Sue.  Executive further agrees never to sue any Releasees or cause any Releasees to be sued regarding any matter within the scope of the above release.  If Executive violates this Release by suing any Releasees or causing any Releasees to be sued, Executive shall continue to be bound by the release obligations of this Release and shall pay all costs and expenses of defending against the suit incurred by the Releasees, including reasonable attorneys’ fees, unless paying such costs and expenses is prohibited by law.    

 

8.         Right to Engage in Protected Activity.  Nothing contained in this Release limits Executive’s ability to file a charge or complaint with any federal, state or local governmental agency or commission (a “ Government Agency ”).  In addition, nothing in this Release or any other Company agreement, policy, practice, procedure, directive or instruction shall prohibit Executive from reporting possible violations of federal, state or local laws or regulations to any Government Agency or making other disclosures that are protected under the whistleblower provisions of federal, state or local laws or regulations.  Executive does not need prior authorization of any kind to make any such reports or disclosures and Executive is not required to notify the Company that Executive has made such reports or disclosures.  If Executive files any charge or complaint with any Government Agency, and if the Government Agency pursues any claim on Executive’s behalf, or if any other third party pursues any claim on Executive’s behalf, Executive waives any right to monetary or other individualized relief (either individually, or as part of any collective or class action) that arises out of alleged facts or circumstances on or before the effective date of this Release; provided that nothing in this Release limits any right Executive may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission or other Government Agency.    

 

9.         Acknowledgment . Executive has read this Release, understands it, and voluntarily accepts its terms, and Executive acknowledges that he has been advised by the Company to seek the advice of legal counsel (at Executive’s cost) before entering into this Release. Executive acknowledges that he was given a period of at least 21 calendar days within which to consider and execute this Release, and to the extent that he executes this Release before the expiration of the 21-day period, he does so knowingly and voluntarily and only after consulting his attorney. Executive acknowledges and agrees that the promises made by the Company Group hereunder represent substantial value over and above that to which Executive would otherwise be entitled. 

 

10.       Revocation .  Executive has a period of 7 calendar days following the execution of this Release during which Executive may revoke this Release by delivering written notice to the Company pursuant to Section 8(g) of the Separation Agreement by hand or overnight courier before 5:00 p.m. on the seventh day after signing this Release.  This Release will not become effective or enforceable until such revocation period has expired. Executive understands that if he revokes this Release, it will be null and void in its entirety, and he will not be entitled to any

 


 

payments or benefits provided in this Release, including without limitation under Section 2 of this Release.

 

11.         Miscellaneous . This Release is the complete understanding between Executive and the Company Group in respect of the subject matter of this Release and supersedes all prior agreements relating to Executive’s employment with the Company Group, except as specifically excluded by this Release. Executive has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Release. In the event that any provision of this Release should be held to be invalid or unenforceable, each and all of the other provisions of this Release shall remain in full force and effect. If any provision of this Release is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Release to be upheld and enforced to the maximum extent permitted by law. Executive agrees to execute such other documents and take such further actions as reasonably may be required by the Company Group to carry out the provisions of this Release.

 

IN WITNESS WHEREOF, the parties have executed this Release on the date first set forth above.

 

 

 

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

 

 

 

 

 

 

By:

/s/ Tracy Pagliara

 

 

 

 

Its:

President and CEO

 

 

 

EXECUTIVE

 

 

 

 

 

/s/ Mark Jolly

 

Mark Jolly

 

 

 

 


Exhibit 10.55

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (“ Agreement ”) is effective as of the 11th day of September, 2017 (the “ Effective Date ”), between Global Power Equipment Group Inc. (the “ Company ”) and Tracy D. Pagliara (“ Executive ”).   In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Employment .  The Company shall employ Executive, and Executive accepts employment with the Company, upon the terms and subject to the conditions set forth in this Agreement, for the period beginning on the Effective Date and ending on the Date of Termination (as defined in Section 4(e) of this Agreement) (the  “ Term ”).

 

2. Position and Duties; Location .

 

(a) Position and Duties .  During the Term, Executive shall be employed by the Company as Co-President and Co-Chief Executive Officer.  Executive shall report solely to the Board of Directors of the Company (the “ Board ”) and shall have such duties, responsibilities and authorities as are customarily associated with his position (including, but not limited to, the general management of the affairs of the Company) and such additional duties and responsibilities consistent with his positions as may, from time to time, be properly and lawfully assigned to him.

 

(b) Board Service .  During the Term, the Company shall cause the Nominating and Corporate Governance Committee of the Board (the “ Nominating Committee ”) to nominate Executive to serve as a member of the Board each year Executive’s term of Board service is to be slated for reelection to the Board. If, during the Term, the Company’s stockholders vote in favor of the Nominating Committee’s nomination of Executive to serve as a member of the Board, Executive agrees to serve in such capacity and also agrees that any such Board service shall be without additional compensation.

 

(c) Engaging in Other Activities .  During the Term, Executive shall devote substantially all of his business time, energies and talents to serving as Co-President and Co-Chief Executive Officer of the Company, and shall perform his duties conscientiously and faithfully, subject to the reasonable and lawful directions of the Board and in accordance with the policies, rules and decisions adopted from time to time by the Company and the Board.  During the Term, it shall not be a violation of this Agreement for Executive, subject to the requirements of Sections 7, 8 and 9 hereof, to (i) serve on civic or charitable boards, (ii) with the consent of the Board, which consent shall not be unreasonably withheld, serve on corporate boards unrelated to the Company (and retain all compensation in whatever form for such service), (iii) deliver lectures and fulfill speaking engagements, and (iv) manage personal investments, so long as such activities (individually or in the aggregate) do not significantly interfere with the performance of Executive’s responsibilities as set forth in Sections 2(a) or 2(b) of this Agreement or Executive’s fiduciary duties to the Company.

 

(d) Location .  Executive shall perform his duties and responsibilities hereunder principally at the Company’s corporate headquarters, which currently is in Irving, Texas;


 

 

provided that Executive may be required under reasonable business circumstances to travel outside of such location in connection with performing his duties under this Agreement.

 

(e) Affiliates .  Executive agrees to serve, without additional compensation, as an officer and director of each of the other members of the Company’s affiliates, as determined by the Board, provided that such service is covered by Section 3(f) of this Agreement.  As used in this Agreement, the term “ affiliate ” shall mean any entity controlled by, controlling, or under common control with, the Company.

 

(f) Stock Ownership Guidelines .  Executive acknowledges and agrees to comply with the Company’s stock ownership guidelines for the Chief Executive Officer position, as the same may be amended from time to time.

 

(g) Compensation Recovery Policy .  Executive acknowledges that, notwithstanding any provision of this Agreement to the contrary, any incentive compensation or performance-based compensation paid or payable to Executive hereunder shall be subject to repayment or recoupment obligations arising under applicable law or the Company’s Compensation Recovery Policy, as the same may be amended from time to time.

 

3. Compensation and Benefits .

 

(a) Base Salary . During the Term, the Company shall pay Executive an annualized base salary (“ Annual Base Salary ”) at a rate of $450,000 U.S., effective retroactively to July 26, 2017, and payable in regular installments in accordance with the Company’s normal payroll practices.  During the Term, the Annual Base Salary shall be reviewed by the Board at such time as the salaries of other senior executives of the Company are reviewed generally.  The Annual Base Salary shall not be reduced other than in connection with an across-the-board salary reduction which applies in a comparable manner to other senior executives of the Company.  If so increased or reduced, then such adjusted salary will thereafter be the Annual Base Salary for all purposes under this Agreement.

 

(b) Annual Incentive .  For each fiscal year during the Term, Executive shall be eligible to participate in the Company’s Short-Term Incentive Plan, or any successor plan (the “ STIP ”), under terms and conditions no less favorable than other senior executives of the Company; provided that Executive’s “target” short-term incentive opportunity shall not be less than 75% of his Annual Base Salary (the “ Target STI ”), effective as of July 26, 2017. Executive’s payment under the STIP for any fiscal year during the Term shall be based on the extent to which the predetermined performance objectives established by the Board or a committee thereof have been achieved for that year; provided that, if Executive remains continuously employed by the Company through April 15, 2018, the amount of Executive’s annual incentive bonus for the 2017 fiscal year shall be not less than the Target STI for such fiscal year.  The annual incentive for any fiscal year, if earned, will be paid to Executive by the Company in accordance with the terms, and subject to the conditions, of the STIP; provided that Executive’s annual incentive earned under the STI for the 2016 fiscal year (if any) shall be paid 50% in cash and 50% in the form of a number of shares of common stock of the Company, $0.01 par value per share (“ Share ”), determined by dividing the dollar amount of 50% of the 2016 annual incentive by the average closing price per Share for the last five trading days of the thirty-day period ending on the thirtieth (30th) day after

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the Company has completed the filing with the Securities and Exchange Commission of a Form 10-K for fiscal 2016.

 

(c) Vacation .  During the Term, Executive shall be eligible for paid vacation in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally; provided that Executive shall be entitled to paid vacation time at a rate of no less than 4 weeks per calendar year.  Executive shall use such vacation time at such reasonable time or times each year as he may determine after consultation with the Chairman of the Board.

 

(d) Expense Reimbursement .  Executive shall be reimbursed for all reasonable travel and other out-of-pocket expenses actually and properly incurred by Executive during the Term in connection with carrying out his duties hereunder in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally.

 

(e) Benefits .  During the Term, and except as otherwise provided in this Agreement, Executive shall be eligible to participate in all welfare, perquisites, fringe benefit, insurance, retirement and other benefit plans, practices, policies and programs, maintained by the Company and its affiliates applicable to senior executives of the Company generally, in each case as amended from time to time.

 

(f) Indemnification and Insurance . The Company shall indemnify Executive to the full extent provided for in its corporate charter, bylaws or any other indemnification policy or procedure as in effect from time to time and applicable to its other directors and senior executives and to the maximum extent that the Company indemnifies any of its other directors and senior executives, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executives against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement).

 

4. Termination of Employment .

 

(a) Death and Disability .  Executive’s employment shall terminate automatically upon Executive’s death.  If the Company determines in good faith that the Disability (as defined below) of Executive has occurred during the Term, it may give to Executive written notice in accordance with Section 13 of this Agreement of its intention to terminate Executive’s employment; provided that such notice is provided no later than 150 calendar days following the determination of Executive’s Disability.  In such event, Executive’s employment shall terminate effective on the 30th calendar day after receipt of such notice by Executive (the “ Disability Effective Date ”), provided that, within the 30 calendar days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties.  For purposes of this Agreement, “ Disability ” shall mean the inability of Executive to perform the essential duties of the position held by Executive by reason of any medically determined physical or mental impairment that is reasonably expected to result in death or lasts for 120 consecutive calendar days in any one-year period, all as

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determined by an independent licensed physician mutually acceptable to the Company and Executive or Executive’s legal representative.

 

(b) Cause .  Executive’s employment with the Company may be terminated by the Company with or without Cause.  For purposes of this Agreement, “ Cause ” shall mean: (i) the continued failure of Executive to perform substantially Executive’s duties with the Company or any of its affiliates or Executive’s material disregard of the directives of the Board (in each case other than any such failure resulting from any medically determined physical or mental impairment) that is not cured by Executive within 20 calendar days after a written demand for substantial performance is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has not substantially performed Executive’s duties or disregarded a directive of the Board; (ii) willful material misrepresentation at any time by Executive to the Board; (iii) Executive’s commission of any act of fraud, misappropriation (other than misappropriation of a de minimis nature) or embezzlement against or in connection with the Company or any of its affiliates or their respective businesses or operations; (iv) a conviction, guilty plea or plea of nolo contendere of Executive for any crime involving dishonesty or for any felony; (v) a material breach by Executive of his fiduciary duties of loyalty or care to the Company or any of its affiliates or a material violation of the Company’s Code of Business Conduct and Ethics or any other material breach of a Company policy, as the same may be amended from time to time; (vi) the engaging by Executive in illegal conduct, gross misconduct, gross insubordination or gross negligence that is materially and demonstrably injurious to the Company’s business or financial condition; or (vii) a material breach by Executive of his obligations under Section 7, 8, 9 or 11 of this Agreement that, in the case of Sections 7, 8 or 11, is not cured (if curable) by Executive within 20 calendar days after written demand for such cure is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has materially breached his obligations.

 

(c) Good Reason .  Executive’s employment with the Company may be terminated by Executive with or without Good Reason.  For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following without Executive’s consent: (i) a material reduction by the Company of Executive’s title, duties, responsibilities or reporting relationship set forth in Section 2(a); (ii) a material reduction by the Company of Executive’s Annual Base Salary (other than as permitted in Section 3(a) of this Agreement) or Executive’s Target STI; (iii) the relocation of Executive’s principal place of employment outside of the Dallas, Texas metropolitan area, provided that Executive may be required to travel on business to the extent necessary to efficiently perform his duties under this Agreement, and such business travel shall not constitute Good Reason hereunder; or (iv) any other material breach of this Agreement by the Company.  A termination of Executive’s employment by Executive shall not be deemed to be for Good Reason unless (x) Executive gives notice to the Company of the existence of the event or condition constituting Good Reason within 30 calendar days after such event or condition initially occurs or exists, and (y) the Company fails to cure such event or condition within 30 calendar days after receiving such notice.  Additionally, Executive must terminate his employment within 120 calendar days after the initial occurrence of the circumstance constituting Good Reason for such termination to be “Good Reason” hereunder.

 

(d) Notice of Termination .  Any termination by the Company for Cause, or by  Executive for Good Reason, shall be communicated by Notice of Termination to the other party

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in accordance with Section 13.  For purposes of this Agreement, a “ Notice of Termination ” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than 30 calendar days after the giving of such notice).  The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Company or Executive, respectively, hereunder or preclude the Company or Executive, respectively, from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights hereunder.

 

(e) Date of Termination . “ Date of Termination ” means (i) if Executive’s employment is terminated by the Company for Cause, or by Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein within 30 calendar days after such notice, as the case may be, (ii) if Executive’s employment is terminated by the Company other than for Cause or Disability, or if Executive voluntarily resigns without Good Reason, the date on which the terminating party notifies the other party that such termination shall be effective, provided that on a voluntary resignation without Good Reason, the Company may, in its sole discretion, make such termination effective on any date it elects in writing between the date of the notice and the proposed date of termination specified in the notice, (iii) if Executive’s employment is terminated by reason of death, the date of death of Executive, or (iv) if Executive’s employment is terminated by the Company due to Disability, the Disability Effective Date.

 

(f) Resignation from All Positions .  Notwithstanding any other provision of this Agreement, upon the termination of Executive’s employment by the Company for any reason, Executive shall immediately resign from all positions that he holds or has ever held with the Company and its affiliates, including from the Board.  Executive hereby agrees to execute any and all documentation to effectuate such resignations upon request by the Company, but he shall be treated for all purposes as having so resigned upon termination of his employment, regardless of when or whether he executes any such documentation.

 

5. Severance Payments .

 

(a) Good Reason, Other than for Cause .  If, during the Term, the Company shall terminate Executive’s employment other than for Disability or Cause, or if Executive shall terminate employment for Good Reason:

 

(i) The Company shall pay, or cause to be paid, to Executive the sum of:  (A) the portion of Executive’s Annual Base Salary earned through the Date of Termination, to the extent not previously paid; and (B) any accrued vacation pay, to the extent not previously paid (the sum of the amounts described in clauses (A) and (B) shall be referred to as the “ Accrued Benefits ”).  The Accrued Benefits shall be paid in a single lump sum within 30 calendar days after the Date of Termination.

 

(ii) Subject to Section 6 hereof, the Company shall continue to pay, or cause to be paid, to Executive, continued Annual Base Salary (without taking into account any reduction

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to the Annual Base Salary that constitutes Good Reason for Executive’s termination), for the 18-month period commencing on the Date of Termination (such period, the “ Severance Period ”), payable over the Severance Period in equal semi-monthly or other installments (not less frequently than monthly), commencing with the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms (and with the first such installment including any such Annual Base Salary amount that otherwise would have been paid earlier in the Severance Period, and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination).  Notwithstanding the foregoing, if the termination described in this Section 5(a) occurs within 90 calendar days prior to, or within 2 years following, a Change in Control (as defined in the Company’s 2015 Equity Incentive Plan (the “ Equity Incentive Plan ”), provided that, for the avoidance of doubt, for purposes of this Agreement, a “Business Combination”, which may constitute a Change in Control as defined in the Equity Incentive Plan, shall be deemed to include any disposition of two or more of the Company’s business segments and the completion of any related corporate restructuring or transition identified by the Board, then, in addition to the amounts described in the first sentence of this Section 5(a)(ii): (A) if the Date of Termination occurs during fiscal 2018, the Company shall pay or cause to be paid to Executive, in lieu of any Pro-Rated Annual Incentive under Section 5(a)(iv), a lump sum payment equal to Executive’s Target STI under the STIP for the 2018 fiscal year (without pro-ration), payable on the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms; and (B) to the extent that the same treatment is not otherwise provided under the Equity Incentive Plan and the applicable award agreements, each of Executive’s then outstanding equity incentive awards shall become vested in full (without pro-ration), with any specified performance objectives with respect to such outstanding awards deemed to be satisfied at the “target” level.

 

(iii) Subject to Section 6 hereof, the Company shall pay to Executive the amount of any annual incentive that has been earned by Executive under the STIP for a completed fiscal year or other measuring period preceding the Date of Termination (or that would have been earned by Executive had his employment continued through the date such annual incentive is paid to other senior executives), but has not yet been paid to Executive (the “ Prior Year Annual Incentive ”), payable in a single lump sum no later than the date that annual incentives are payable to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP).

 

(iv) Subject to Section 6 hereof, if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, and except as otherwise provided in Section 5(a)(ii) or Section 5(a)(v), Executive will be eligible to receive an annual incentive under the STIP for the fiscal year during which the Date of Termination occurs, determined as if Executive had remained employed for the entire year (and any additional period of time necessary to be eligible to receive the annual incentive for the year), based on actual Company performance during the entire fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment), and assuming that any individual goals applicable to Executive were satisfied at the “target” level, pro-rated based on the number of days in the Company’s fiscal year through (and including) the Date of Termination (the “ Pro-Rated Annual Incentive ”).  The Pro-Rated Annual Incentive shall

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be payable in a single lump sum at the same time that payments are made to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP).

 

(v) Subject to Section 6 hereof, if and only if Executive’s Date of Termination occurs prior to April 15, 2018, Executive will be eligible to receive an annual incentive under the STIP for fiscal year 2017 equal to the Target STI for fiscal 2017 (without pro-ration).  Any fiscal 2017 annual incentive pursuant to this Section 5(a)(v) shall be payable in a single lump sum on the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms.

 

(vi) Subject to Section 6 hereof, if Executive timely elects continued health and dental coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“ COBRA ”), the Company will pay Executive’s full COBRA premiums to continue his coverage (including coverage for his eligible dependents, if applicable) (the “ COBRA Premiums ”) for the 12-month period commencing on the Date of Termination (the “COBRA Premium Period”).  The COBRA Premium Period runs concurrently with the Severance Period.  During the COBRA Premium Period, an amount equal to the applicable COBRA Premiums (or such other amounts as may be required by law) will be included in Executive’s income for tax purposes to the extent required by applicable law and the Company may withhold taxes from Executive’s other compensation for this purpose.  Notwithstanding the foregoing, if Executive becomes re-employed with another employer and is eligible to receive substantially equivalent health benefits under another employer-provided plan, then the Company’s payment obligations and Executive’s right to the subsidized premium payments as described in this Section 5(a)(vi) shall cease.

 

(vii) To the extent not theretofore paid or provided, the Company shall pay or provide, or cause to be paid or provided, to Executive (or his estate) any other amounts, benefits or equity awards required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company, including any benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (such other amounts and benefits shall be hereinafter referred to as the “ Other Benefits ”) in accordance with the terms and normal procedures of each such plan, program, policy or practice or contract or agreement, based on accrued and vested benefits through the Date of Termination.

 

(b) Cause; Other than for Good Reason .  If, during the Term, Executive’s employment is terminated for Cause, or if Executive voluntarily terminates his employment without Good Reason, then the Company shall pay or provide to Executive the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, and the Other Benefits, and no further amounts shall be payable to Executive under this Section 5 after the Date of Termination.

 

(c) Disability and Death .  If, during the Term, Executive’s employment is terminated for Disability or Executive dies, then the Company shall pay or provide to Executive (or his estate) (i) the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, (ii) the Other Benefits, (iii) subject to Section 6 hereof, the Prior Year Annual Incentive, payable in accordance with Section 5(a)(iii) of this Agreement, (iv) subject to Section 6 hereof, and if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, the Pro-Rated Annual Incentive, payable in accordance with Section

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5(a)(iv) of this Agreement, and (v) in the case of termination for Disability, and subject to Section 6 hereof, an amount equal to the excess, if any, of Executive’s Annual Base Salary for 6 months, over the amounts payable to Executive under the Company’s short-term disability insurance program, which amount shall be payable in equal semi-monthly or other installments (not less frequently than monthly) over the period commencing on the Date of Termination and ending 6 months thereafter, with the installments that otherwise would be paid within the first 60 calendar days after the Date of Termination being paid in a lump sum (without interest) on the 60th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination.

 

(d) Full Settlement; Offset .  The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company or any of its affiliates may have against Executive or others, except as otherwise may be provided in this Section or Section 2(g) or Section 10 hereof.  In no event shall  Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

 

(e) Section 280G .  In the event it shall be determined that any payment or distribution by the Company or any of its affiliates to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (the “ Total Payments ”), is or will be subject to the excise tax (the “ Excise Tax ”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “ Code ”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “ Safe Harbor Cap ”), if the net after-tax benefit to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) benefit to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the cash payments made pursuant to Section 5(a)(ii) of this Agreement, then to the payment made pursuant to Section 5(a)(iii) of this Agreement, then to any payment made pursuant to Section 5(a)(iv) of this Agreement, then to any payment made pursuant to Section 5(a)(v) of this Agreement, then to the benefits provided pursuant to Section 5(a)(vi) of this Agreement, and then to any other payment that triggers such Excise Tax in the following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of any other payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis). All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made under this paragraph, including determinations as to whether the Total Payments to Executive shall be reduced to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be made at the Company’s expense by a nationally recognized accounting firm mutually acceptable to the Company and Executive.

 

6. Release . Notwithstanding anything contained herein to the contrary, the Company shall not be obligated to make any payment or provide any benefit under Sections 5(a)(ii), (iii),

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(iv), (v) and (vi), or Sections 5(c)(iii), (iv) and (v) hereof unless:  (a) Executive or Executive’s legal representative first executes within 50 calendar days after the Date of Termination a release of claims agreement in the form attached hereto as Exhibit A , with such changes as the Company, after consulting with Executive or Executive’s legal representative, may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable law (the “ Release ”), (b) Executive does not revoke the Release, and (c) the Release becomes effective and irrevocable in accordance with its terms.

 

7. Work Product . Executive agrees that all inventions, drawings, improvements, developments, methods, processes, programs, designs and all similar or related information which relates to the Company’s or any of its affiliates’ actual or anticipated business or research and development or existing or future products or services and which are conceived, developed, contributed to or made by Executive (either solely or jointly with others) while employed by or serving as a consultant to the Company or any of its affiliates (“ Work Product ”) shall be the sole and exclusive property of the Company or any such affiliate. Executive will promptly disclose such Work Product to the Company and perform all actions requested by the Company (whether during or after employment) to establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments).

 

8. Confidential Information.

 

(a) Confidential Information ” means information disclosed to Executive or known by Executive as a result of employment by the Company, not generally known to the trade or industry in which the Company or its affiliates are engaged, about products, processes, technologies, machines, customers, clients, employees, services and strategies of the Company and its affiliates, including, but not limited to, inventions, research, development, manufacturing, purchasing, financing, computer software, computer hardware, automated systems, engineering, marketing, merchandising, selling, sales volumes or strategies, number or location of sales representatives, names or significance of the Company’s customers or clients or their employees or representatives, preferences, needs or requirements, purchasing histories, or other customer or client-specific information.  Such Confidential Information is and shall continue to be the property of the Company.

 

(b) Executive recognizes that Confidential Information is of great value to the Company, that the Company has legitimate business interests in protecting its confidential information, and that the disclosure to anyone not authorized to receive such information will cause immediate and irreparable injury to the Company.  Except as required by law or in the performance of his duties for the Company, unless Executive first secures the Company’s written consent, Executive will not divulge, disclose, use, copy, disseminate, lecture upon or publish Confidential Information.  Executive understands and agrees that the obligations not to disclose, use, disseminate, lecture upon or publish Confidential Information shall continue after termination of employment for any reason.  Further, Executive will use his best efforts and diligence to safeguard and to protect the Confidential Information against disclosure, misuse, espionage, loss or theft.

 

(c) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, Executive shall deliver (and in the event of

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Executive’s death or Disability, his representative shall deliver) to the Company all computer equipment or backup files of or relating to the Company or its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in his possession, custody or control.  If the Company requests, Executive (or his representative) agrees to provide written confirmation that Executive has returned all such materials.

 

(d) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, Executive shall assign all rights, title and interest in the Confidential Information, the Work Product, all computer equipment or backup files of or relating to the Company or its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in his possession, custody or control.

 

9. Non-compete; Non-solicitation.

 

(a) Executive agrees that during the Term and thereafter during the Protection Period (as defined in Section 9(f) below), Executive will not directly or indirectly (by himself or in association with any individual or entity) own, operate, manage, control, be employed by, participate in, consult with, advise, provide services for, or in any manner engage in any business which competes in any way with any business activity that the Company or its affiliates is conducting, or has active plans to conduct, as of the Date of Termination.  This restriction shall apply to any geographic area in which the Company, or any affiliate for which Executive had any responsibilities during the term of his employment, engaged in business, or had active plans to engage in business, during the term of Executive’s employment.  The restrictions contained herein shall not prohibit Executive from being a passive owner of not more than 5% of the outstanding stock of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation.  Notwithstanding the foregoing, with respect to an entity which is engaged in both a competing business and a non-competing business, Executive may provide services to the non-competing business, provided that Executive does not render any services or advice, directly or indirectly, to the competing business.

 

(b) Executive agrees that during the Term and thereafter during the Protection Period, Executive will not directly or indirectly:  (i) solicit or induce, or attempt to solicit or induce, any employee, consultant or independent contractor of the Company or of any affiliate to terminate his or her employment or relationship with the Company or affiliate; (ii) hire any person who Executive knows was an employee, consultant or independent contractor of the Company or of any affiliate during the last 6 months of Executive’s employment by the Company; or (iii) induce or attempt to induce any customer, supplier, distributor, franchisee, licensee, or other individual or entity that has any business relationship with the Company or any of its affiliate to cease doing business with the Company or any of its affiliates, or in any way interfere with the relationship between any such customer, supplier, distributor, franchisee, licensee, or any other individual or entity and the Company or any of its affiliates.

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(c) To enable the Company to monitor Executive’s compliance with the obligations imposed by this Agreement, Executive agrees to inform the Company, upon the Date of Termination, of the identity of any new employer and of Executive’s new job title.  Executive will continue to so inform the Company, in writing, any time Executive changes employment during the Protection Period.

 

(d) In the event that any of these provisions are deemed invalid or unenforceable under applicable law, that shall not affect the validity or enforceability of the remaining provisions.  To the extent any provision is unenforceable because it is overbroad, that provision shall be limited to the extent required by applicable law and enforced as so limited.

 

(e) Executive has carefully considered the nature and extent of the restrictions upon him and the rights and remedies conferred upon the Company under this Section 9, and hereby acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition that otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are fully required to protect the legitimate interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive.

 

(f) For purposes of this Section 9, the term “Protection Period” shall mean the period commencing on the Date of Termination and ending on the date 18 months after the Date of Termination, provided, however, that such period shall be extended by any length of time during which Executive is in breach of the covenants contained in this Section 9.

 

10. Remedies .  Executive recognizes and affirms that in the event of his breach of any provision of Sections 7, 8 or 9 hereof, money damages would be inadequate and the Company would have no adequate remedy at law. Accordingly, Executive agrees that in the event of a breach or a threatened breach by Executive of any of the provisions of Sections 7, 8 or 9, the Company, in addition and supplementary to other rights and remedies existing in its favor, may (a) apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security), and (b) exercise its rights hereunder to cease any further payments and/or vesting of equity awards.  Executive understands and acknowledges that the Company can bar him from disclosing or using Confidential Information, bar him from accepting or continuing prohibited employment or rendering prohibited services, or bar him from soliciting certain individuals and entities for the periods specified in Sections 7, 8 and 9 above.  In the event that the Company institutes legal action to enforce Sections 7, 8 or 9 of this Agreement, Executive agrees that the Company shall be entitled to recover from him its costs of any action (including reasonable attorneys’ and expert fees and expenses).  Nothing in this Section 10 will be deemed to limit the Company’s remedies at law or in equity for any breach by Executive of any of the provisions of Sections 7, 8 or 9 that may be pursued or availed of by the Company.

 

11. Cooperation in Investigations and Proceedings. During the Term and for a period of 5 years thereafter, Executive shall cooperate with the Company and its affiliates, upon the Company’s reasonable request, with respect to any internal investigation or administrative, regulatory or judicial proceeding involving matters occurring, in whole or in part, during such

11


 

 

employment with the Company and within the scope of Executive’s duties and responsibilities to the Company during his employment with the Company (including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process, and turning over to the Company all relevant Company documents which are or may have come into Executive’s possession during his employment).  In requesting Executive’s cooperation, the Company shall take into account his other personal and professional obligations.  Executive shall be reimbursed for the reasonable expenses Executive incurs in connection with any such cooperation and/or assistance and shall receive from the Company hourly compensation equal to the Annual Base Salary immediately prior to the Date of Termination divided by 1,800 hours, in each case in connection with any assistance or cooperation that occurs after the Date of Termination.  Any such reimbursements or per diem compensation shall be paid to Executive no later than the 15th day of the month immediately following the month in which such expenses were incurred or such cooperation and/or assistance was provided (subject to Executive’s timely submission to the Company of proper documentation with respect thereto).

 

12. Survival .   Subject to any limits on applicability contained therein, Sections 2(g), 3(f), 4(f), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22 and 23 shall survive and continue in full force in accordance with their terms notwithstanding any termination of the Term or this Agreement.

 

13. Notices .   Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight carrier or mailed by first class mail, return receipt requested, to the recipient.  Notices to Executive shall be sent to the address of Executive most recently provided to the Company.  Notices to the Company should be sent to Global Power Equipment Group Inc., 400 E. Las Colinas Boulevard, Suite No. 400 Irving, TX 75039, Attention:  Corporate Secretary.  Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.

 

14. Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

15. Source of Payment .   Any payments to Executive under this Agreement shall be paid from the Company’s general assets.

 

16. Complete Agreement . This Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way, including the employment agreement between Executive and the Company dated as of March 22, 2010.

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17. Withholding of Taxes .  The Company and its affiliates may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company and its affiliates are required to withhold pursuant to any law or government regulation or ruling.

 

18. Counterparts . This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and both of which taken together shall constitute one and the same agreement.

 

19. Successors and Assigns .

 

(a) This Agreement is personal to Executive, and, without the prior written consent of the Company, shall not be assignable by Executive other than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.  Except as provided in Section 19(c), without the prior written consent of Executive this Agreement shall not be assignable by the Company, except to an affiliate.

 

(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.  “ Company ” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

 

20. Choice of Law . This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of Texas, without regard to conflicts of law principles.  The parties hereto irrevocably agree to submit to the jurisdiction and venue of the federal and state courts located in Texas in any court action or proceeding brought with respect to or in connection with this Agreement.

 

21. Voluntary Agreement .  Executive and the Company represent and agree that each has reviewed all aspects of this Agreement, has carefully read and fully understands all provisions of this Agreement, and is voluntarily entering into this Agreement. Each party represents and agrees that such party has had the opportunity to review any and all aspects of this Agreement with legal, tax or other adviser(s) of such party’s choice before executing this Agreement.

 

22. Amendment and Waiver .  The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.

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23. Section 409A Compliance .

 

(a) In General .  Section 409A of the Internal Revenue Code of 1986, as amended (“ Section 409A ”), imposes payment restrictions on “nonqualified deferred compensation” ( i.e., potentially including payments owed to Executive upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to Executive, including immediate taxation, interest and a 20% additional income tax. It is the Company’s intent that this Agreement be exempt from the application of, or otherwise comply with, the requirements of Section 409A.  Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A, to the maximum extent possible.  If neither of these exceptions applies, and if Executive is a “specified employee” within the meaning of Section 409A, then notwithstanding any provision in this Agreement to the contrary and to the extent required to comply with Section 409A, all amounts that would otherwise be paid or provided during the first 6 months following the Date of Termination shall instead be accumulated through and paid or provided (without interest) on the first business day following the 6-month anniversary of the Date of Termination.

 

(b) Separation from Service .  A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and Executive is no longer providing services (at a level that would preclude the occurrence of a “separation from service” within the meaning of Section 409A) to the Company or its affiliates as an employee or consultant, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service” within the meaning of Section 409A.  Notwithstanding any other provision of this Agreement to the contrary, but only to the extent necessary to comply with Section 409A, if the period in which the Release required by Section 6 of this Agreement must be provided and become effective and irrevocable in accordance with its terms begins in one calendar year and ends in a second calendar year, payment of any nonqualified deferred compensation shall be made or commence on the later of (i) the first payroll date of the second calendar year, or (ii) the first payroll date after the date that the Release becomes effective and irrevocable in accordance with its terms

 

(c) Reimbursements .  With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last business day of Executive’s taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder.

 

[Signatures On Next Page]

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

EXECUTIVE

 

 

 

 

 

 

/s/ Linda A. Goodspeed

 

/s/ Tracy D. Pagliara

By: Linda A. Goodspeed

Its:  Chairman of the Compensation Committee of the Board of Directors

 

Tracy D. Pagliara

 

 

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EXHIBIT A
GENERAL RELEASE

 

This General Release (this “ Release ”) is made and entered into as of this [●] day of [●], 20[●], by and between Global Power Equipment Group Inc. (the “ Company ”) and Tracy D. Pagliara (“ Executive ”).

 

1. Employment Status . Executive’s employment with the Company and its affiliates terminated effective as of [●], 20[●] (the “ Separation Date ”).

 

2. Payments and Benefits .  Upon the effectiveness of the terms set forth herein, the Company shall provide Executive with the benefits set forth in Sections 5(a)(ii), (iii), (iv) (if applicable), (v) (if applicable) and (vi) of the Employment Agreement between Executive and the Company dated as of [●], 2017 (the “ Employment Agreement ”), upon the terms, and subject to the conditions, of the Employment Agreement.

 

3. No Liability . This Release does not constitute an admission by the Company or its affiliates or their respective officers, directors, partners, agents, or employees, or by Executive, of any unlawful acts or of any violation of federal, state or local laws.

 

4. Release .  In consideration of the payments and benefits set forth in Section 2 of this Release, Executive for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “ Releasors ”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Company, its respective affiliates and their respective successors and assigns (the “ Company Group ”) and each of its officers, directors, partners, agents, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “ Releasees ”), and each of them, from any and all claims, demands, actions, causes of action, costs, expenses, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which Executive has, had, or may ever have against the Releasees relating to or arising out of Executive’s employment or separation from employment with the Company Group, from the beginning of time and up to and including the date Executive executes this Release. This Release includes, without limitation: (a) law or equity claims; (b) contract (express or implied) or tort claims; (c) claims for wrongful discharge, retaliatory discharge, whistle blowing, libel, slander, defamation, unpaid compensation, intentional infliction of emotional distress, fraud, public policy contract or tort, and implied covenant of good faith and fair dealing; (d) claims under or associated with any of the Company Group’s incentive compensation plans or arrangements; (e) claims arising under any federal, state, or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation, or any other form of discrimination, harassment, or retaliation (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ ADEA ”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1963, and the Americans with Disabilities Act of 1990, the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act, the Employee Polygraph Protection Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Genetic Information Nondiscrimination Act of 2008 (“ GINA ”), the Fair Labor Standards Act (“ FLSA ”), the Lilly Ledbetter Fair Pay Act or any other foreign, federal, state or local law or judicial decision); (f) claims arising under the

A-1


 

 

Employee Retirement Income Security Act; and (g) any other statutory or common law claims related to Executive’s employment with the Company Group or the separation of Executive’s employment with the Company Group.

 

Without limiting the foregoing paragraph, Executive represents that he understands that this Release specifically releases and waives any claims of age discrimination, known or unknown, that Executive may have against the Company Group as of the date he signs this Release.  This Release specifically includes a waiver of rights and claims under the Age Discrimination in Employment Act of 1967, as amended, and the Older Workers Benefit Protection Act.  Executive acknowledges that as of the date he signs this Release, he may have certain rights or claims under the Age Discrimination in Employment Act, 29 U.S.C. §626 and he voluntarily relinquishes any such rights or claims by signing this Release.

 

Notwithstanding the foregoing provisions of this Section 4, nothing herein shall release the Company Group from (i) any obligation under the Employment Agreement; (ii) any obligation to provide benefit entitlements under any Company benefit or welfare plan that were vested as of the Separation Date; and (iii) from any rights or claims that relate to events or circumstances that occur after the date that the Executive executes this Release.

 

5. Bar .  Executive acknowledges and agrees that if he should hereafter make any claim or demand or commence or threaten to commence any action, claim or proceeding against the Releasees with respect to any cause, matter or thing which is the subject of the release under Section 4 of this Release, this Release may be raised as a complete bar to any such action, claim or proceeding, and the applicable Releasee may recover from Executive all costs incurred in connection with such action, claim or proceeding, including attorneys’ fees, along with the benefits set forth in Section 2 of the Release.

 

6. Right to Engage in Protected Activity .  Nothing contained in this Release limits Executive’s ability to file a charge or complaint with any federal, state or local governmental agency or commission (a “ Government Agency ”).  In addition, nothing in this Release or the Employment Agreement or any other Company agreement, policy, practice, procedure, directive or instruction shall prohibit Executive from reporting possible violations of federal, state or local laws or regulations to any Government Agency or making other disclosures that are protected under the whistleblower provisions of federal, state or local laws or regulations.  Executive does not need prior authorization of any kind to make any such reports or disclosures and Executive is not required to notify the Company that Executive has made such reports or disclosures.  If Executive files any charge or complaint with any Government Agency, and if the Government Agency pursues any claim on Executive’s behalf, or if any other third party pursues any claim on Executive’s behalf, Executive waives any right to monetary or other individualized relief (either individually, or as part of any collective or class action) from the Releasees that arises out of alleged facts or circumstances on or before the effective date of this Release; provided that nothing in this Release or the Separation Agreement limits any right Executive may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission or other Government Agency.

 

7. Governing Law .  This Release shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of laws principles.

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8. Acknowledgment . Executive has read this Release, understands it, and voluntarily accepts its terms, and Executive acknowledges that he has been advised by the Company to seek the advice of legal counsel (at Executive’s cost) before entering into this Release. Executive acknowledges that he was given a period of 21 calendar days within which to consider and execute this Release, and to the extent that he executes this Release before the expiration of the 21-day period, he does so knowingly and voluntarily and only after consulting his attorney. Executive acknowledges and agrees that the promises made by the Company Group hereunder represent substantial value over and above that to which Executive would otherwise be entitled.  Executive acknowledges and reconfirms the promises in Sections 7, 8, 9, 10 and 11 of the Employment Agreement.

 

9. Revocation . Executive has a period of 7 calendar days following the execution of this Release during which Executive may revoke this Release by delivering written notice to the Company pursuant to Section 13 of the Employment Agreement, and this Release shall not become effective or enforceable until such revocation period has expired. Executive understands that if he revokes this Release, it will be null and void in its entirety, and he will not be entitled to any payments or benefits provided in this Release, including without limitation under Section 2 of the Release.

 

10. Miscellaneous . This Release is the complete understanding between Executive and the Company Group in respect of the subject matter of this Release and supersedes all prior agreements relating to Executive’s employment with the Company Group, except as specifically excluded by this Release. Executive has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Release. In the event that any provision of this Release should be held to be invalid or unenforceable, each and all of the other provisions of this Release shall remain in full force and effect. If any provision of this Release is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Release to be upheld and enforced to the maximum extent permitted by law. Executive agrees to execute such other documents and take such further actions as reasonably may be required by the Company Group to carry out the provisions of this Release.

 

11. Counterparts . This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original.

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

EXECUTIVE

 

 

 

 

 

[Form of release — Do not sign]

 

 

 

By:

 

Tracy D. Pagliara

Its:

 

 

 

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Exhibit 10.56

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (“ Agreement ”) is effective as of the 11th day of September, 2017 (the “ Effective Date ”), between Global Power Equipment Group Inc. (the “ Company ”) and Craig Holmes (“ Executive ”). In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Employment .  The Company shall employ Executive, and Executive accepts employment with the Company, upon the terms and subject to the conditions set forth in this Agreement, for the period beginning on the Effective Date and ending on the Date of Termination (as defined in Section 4(e) of this Agreement) (the  “ Term ”).

 

2. Position and Duties; Location .

 

(a) Position and Duties .  During the Term, Executive shall be employed by the Company as Co-President and Co-Chief Executive Officer.  Executive shall report solely to the Board of Directors of the Company (the “ Board ”) and shall have such duties, responsibilities and authorities as are customarily associated with his position (including, but not limited to, the general management of the affairs of the Company) and such additional duties and responsibilities consistent with his positions as may, from time to time, be properly and lawfully assigned to him.

 

(b) Board Service .  During the Term, the Company shall cause the Nominating and Corporate Governance Committee of the Board (the “ Nominating Committee ”) to nominate Executive to serve as a member of the Board each year Executive’s term of Board service is to be slated for reelection to the Board. If, during the Term, the Company’s stockholders vote in favor of the Nominating Committee’s nomination of Executive to serve as a member of the Board, Executive agrees to serve in such capacity and also agrees that any such Board service shall be without additional compensation.

 

(c) Engaging in Other Activities .  During the Term, Executive shall devote substantially all of his business time, energies and talents to serving as Co-President and Co-Chief Executive Officer of the Company, and shall perform his duties conscientiously and faithfully, subject to the reasonable and lawful directions of the Board and in accordance with the policies, rules and decisions adopted from time to time by the Company and the Board.  During the Term, it shall not be a violation of this Agreement for Executive, subject to the requirements of Sections 7, 8 and 9 hereof, to (i) serve on civic or charitable boards, (ii) with the consent of the Board, which consent shall not be unreasonably withheld, serve on corporate boards unrelated to the Company (and retain all compensation in whatever form for such service), (iii) deliver lectures and fulfill speaking engagements, and (iv) manage personal investments, so long as such activities (individually or in the aggregate) do not significantly interfere with the performance of Executive’s responsibilities as set forth in Sections 2(a) or 2(b) of this Agreement or Executive’s fiduciary duties to the Company.

 

(d) Location .  Executive shall perform his duties and responsibilities hereunder principally at the Company’s corporate headquarters, which currently is in Irving, Texas;


 

 

provided that Executive may be required under reasonable business circumstances to travel outside of such location in connection with performing his duties under this Agreement.

 

(e) Affiliates .  Executive agrees to serve, without additional compensation, as an officer and director of each of the other members of the Company’s affiliates, as determined by the Board, provided that such service is covered by Section 3(f) of this Agreement.  As used in this Agreement, the term “ affiliate ” shall mean any entity controlled by, controlling, or under common control with, the Company.

 

(f) Stock Ownership Guidelines .  Executive acknowledges and agrees to comply with the Company’s stock ownership guidelines for the Chief Executive Officer position, as the same may be amended from time to time.

 

(g) Compensation Recovery Policy .  Executive acknowledges that, notwithstanding any provision of this Agreement to the contrary, any incentive compensation or performance-based compensation paid or payable to Executive hereunder shall be subject to repayment or recoupment obligations arising under applicable law or the Company’s Compensation Recovery Policy, as the same may be amended from time to time.

 

3. Compensation and Benefits .

 

(a) Base Salary . During the Term, the Company shall pay Executive an annualized base salary (“ Annual Base Salary ”) at a rate of $450,000 U.S., effective retroactively to July 26, 2017, and payable in regular installments in accordance with the Company’s normal payroll practices.  During the Term, the Annual Base Salary shall be reviewed by the Board at such time as the salaries of other senior executives of the Company are reviewed generally.  The Annual Base Salary shall not be reduced other than in connection with an across-the-board salary reduction which applies in a comparable manner to other senior executives of the Company.  If so increased or reduced, then such adjusted salary will thereafter be the Annual Base Salary for all purposes under this Agreement.

 

(b) Annual Incentive .  For each fiscal year during the Term, Executive shall be eligible to participate in the Company’s Short-Term Incentive Plan, or any successor plan (the “ STIP ”), under terms and conditions no less favorable than other senior executives of the Company; provided that Executive’s “target” short-term incentive opportunity shall not be less than 75% of his Annual Base Salary (the “ Target STI ”), effective as of July 26, 2017. Executive’s payment under the STIP for any fiscal year during the Term shall be based on the extent to which the predetermined performance objectives established by the Board or a committee thereof have been achieved for that year; provided that, if Executive remains continuously employed by the Company through April 15, 2018, the amount of Executive’s annual incentive bonus for the 2017 fiscal year shall be not less than the Target STI for such fiscal year.  The annual incentive for any fiscal year, if earned, will be paid to Executive by the Company in accordance with the terms, and subject to the conditions, of the STIP; provided that Executive’s annual incentive earned under the STI for the 2016 fiscal year (if any) shall be paid 50% in cash and 50% in the form of a number of shares of common stock of the Company, $0.01 par value per share (“ Share ”), determined by dividing the dollar amount of 50% of the 2016 annual incentive by the average closing price per Share for the last five trading days of the thirty-day period ending on the thirtieth (30th) day after

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the Company has completed the filing with the Securities and Exchange Commission of a Form 10-K for fiscal 2016.

 

(c) Vacation .  During the Term, Executive shall be eligible for paid vacation in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally; provided that Executive shall be entitled to paid vacation time at a rate of no less than 4 weeks per calendar year.  Executive shall use such vacation time at such reasonable time or times each year as he may determine after consultation with the Chairman of the Board.

 

(d) Expense Reimbursement .  Executive shall be reimbursed for all reasonable travel and other out-of-pocket expenses actually and properly incurred by Executive during the Term in connection with carrying out his duties hereunder in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally.

 

(e) Benefits .  During the Term, and except as otherwise provided in this Agreement, Executive shall be eligible to participate in all welfare, perquisites, fringe benefit, insurance, retirement and other benefit plans, practices, policies and programs, maintained by the Company and its affiliates applicable to senior executives of the Company generally, in each case as amended from time to time.

 

(f) Indemnification and Insurance . The Company shall indemnify Executive to the full extent provided for in its corporate charter, bylaws or any other indemnification policy or procedure as in effect from time to time and applicable to its other directors and senior executives and to the maximum extent that the Company indemnifies any of its other directors and senior executives, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executives against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement).

 

4. Termination of Employment .

 

(a) Death and Disability .  Executive’s employment shall terminate automatically upon Executive’s death.  If the Company determines in good faith that the Disability (as defined below) of Executive has occurred during the Term, it may give to Executive written notice in accordance with Section 13 of this Agreement of its intention to terminate Executive’s employment; provided that such notice is provided no later than 150 calendar days following the determination of Executive’s Disability.  In such event, Executive’s employment shall terminate effective on the 30th calendar day after receipt of such notice by Executive (the “ Disability Effective Date ”), provided that, within the 30 calendar days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties.  For purposes of this Agreement, “ Disability ” shall mean the inability of Executive to perform the essential duties of the position held by Executive by reason of any medically determined physical or mental impairment that is reasonably expected to result in death or lasts for 120 consecutive calendar days in any one-year period, all as

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determined by an independent licensed physician mutually acceptable to the Company and Executive or Executive’s legal representative.

 

(b) Cause .  Executive’s employment with the Company may be terminated by the Company with or without Cause.  For purposes of this Agreement, “ Cause ”  shall mean: (i) the continued failure of Executive to perform substantially Executive’s duties with the Company or any of its affiliates or Executive’s material disregard of the directives of the Board (in each case other than any such failure resulting from any medically determined physical or mental impairment) that is not cured by Executive within 20 calendar days after a written demand for substantial performance is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has not substantially performed Executive’s duties or disregarded a directive of the Board; (ii) willful material misrepresentation at any time by Executive to the Board; (iii) Executive’s commission of any act of fraud, misappropriation (other than misappropriation of a de minimis nature) or embezzlement against or in connection with the Company or any of its affiliates or their respective businesses or operations; (iv) a conviction, guilty plea or plea of nolo contendere of Executive for any crime involving dishonesty or for any felony; (v) a material breach by Executive of his fiduciary duties of loyalty or care to the Company or any of its affiliates or a material violation of the Company’s Code of Business Conduct and Ethics or any other material breach of a Company policy, as the same may be amended from time to time; (vi) the engaging by Executive in illegal conduct, gross misconduct, gross insubordination or gross negligence that is materially and demonstrably injurious to the Company’s business or financial condition; or (vii) a material breach by Executive of his obligations under Section 7, 8, 9 or 11 of this Agreement that, in the case of Sections 7, 8 or 11, is not cured (if curable) by Executive within 20 calendar days after written demand for such cure is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has materially breached his obligations.

 

(c) Good Reason .  Executive’s employment with the Company may be terminated by Executive with or without Good Reason.  For purposes of this Agreement, “ Good Reason ” shall mean the occurrence of any of the following without Executive’s consent: (i) a material reduction by the Company of Executive’s title, duties, responsibilities or reporting relationship set forth in Section 2(a); (ii) a material reduction by the Company of Executive’s Annual Base Salary (other than as permitted in Section 3(a) of this Agreement) or Executive’s Target STI; (iii) the relocation of Executive’s principal place of employment outside of the Dallas, Texas metropolitan area, provided that Executive may be required to travel on business to the extent necessary to efficiently perform his duties under this Agreement, and such business travel shall not constitute Good Reason hereunder; or (iv) any other material breach of this Agreement by the Company.  A termination of Executive’s employment by Executive shall not be deemed to be for Good Reason unless (x) Executive gives notice to the Company of the existence of the event or condition constituting Good Reason within 30 calendar days after such event or condition initially occurs or exists, and (y) the Company fails to cure such event or condition within 30 calendar days after receiving such notice.  Additionally, Executive must terminate his employment within 120 calendar days after the initial occurrence of the circumstance constituting Good Reason for such termination to be “Good Reason” hereunder.

 

(d) Notice of Termination .  Any termination by the Company for Cause, or by  Executive for Good Reason, shall be communicated by Notice of Termination to the other party

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in accordance with Section 13.  For purposes of this Agreement, a “ Notice of Termination ” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than 30 calendar days after the giving of such notice).  The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Company or Executive, respectively, hereunder or preclude the Company or Executive, respectively, from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights hereunder.

 

(e) Date of Termination . “ Date of Termination ” means (i) if Executive’s employment is terminated by the Company for Cause, or by Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein within 30 calendar days after such notice, as the case may be, (ii) if Executive’s employment is terminated by the Company other than for Cause or Disability, or if Executive voluntarily resigns without Good Reason, the date on which the terminating party notifies the other party that such termination shall be effective, provided that on a voluntary resignation without Good Reason, the Company may, in its sole discretion, make such termination effective on any date it elects in writing between the date of the notice and the proposed date of termination specified in the notice, (iii) if Executive’s employment is terminated by reason of death, the date of death of Executive, or (iv) if Executive’s employment is terminated by the Company due to Disability, the Disability Effective Date.

 

(f) Resignation from All Positions .  Notwithstanding any other provision of this Agreement, upon the termination of Executive’s employment by the Company for any reason, Executive shall immediately resign from all positions that he holds or has ever held with the Company and its affiliates, including from the Board.  Executive hereby agrees to execute any and all documentation to effectuate such resignations upon request by the Company, but he shall be treated for all purposes as having so resigned upon termination of his employment, regardless of when or whether he executes any such documentation.

 

5. Severance Payments .

 

(a) Good Reason, Other than for Cause .  If, during the Term, the Company shall terminate Executive’s employment other than for Disability or Cause, or if Executive shall terminate employment for Good Reason:

 

(i) The Company shall pay, or cause to be paid, to Executive the sum of:  (A) the portion of Executive’s Annual Base Salary earned through the Date of Termination, to the extent not previously paid; and (B) any accrued vacation pay, to the extent not previously paid (the sum of the amounts described in clauses (A) and (B) shall be referred to as the “ Accrued Benefits ”).  The Accrued Benefits shall be paid in a single lump sum within 30 calendar days after the Date of Termination.

 

(ii) Subject to Section 6 hereof, the Company shall continue to pay, or cause to be paid, to Executive, continued Annual Base Salary (without taking into account any reduction

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to the Annual Base Salary that constitutes Good Reason for Executive’s termination), for the 18-month period commencing on the Date of Termination (such period, the “ Severance Period ”), payable over the Severance Period in equal semi-monthly or other installments (not less frequently than monthly), commencing with the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms (and with the first such installment including any such Annual Base Salary amount that otherwise would have been paid earlier in the Severance Period, and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination).  Notwithstanding the foregoing, if the termination described in this Section 5(a) occurs within 90 calendar days prior to, or within 2 years following, a Change in Control (as defined in the Company’s 2015 Equity Incentive Plan (the “ Equity Incentive Plan ”), provided that, for the avoidance of doubt, for purposes of this Agreement, a “Business Combination”, which may constitute a Change in Control as defined in the Equity Incentive Plan, shall be deemed to include any disposition of two or more of the Company’s business segments and the completion of any related corporate restructuring or transition identified by the Board, then, in addition to the amounts described in the first sentence of this Section 5(a)(ii): (A) if the Date of Termination occurs during fiscal 2018, the Company shall pay or cause to be paid to Executive, in lieu of any Pro-Rated Annual Incentive under Section 5(a)(iv), a lump sum payment equal to Executive’s Target STI under the STIP for the 2018 fiscal year (without pro-ration), payable on the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms; and (B) to the extent that the same treatment is not otherwise provided under the Equity Incentive Plan and the applicable award agreements, each of Executive’s then outstanding equity incentive awards shall become vested in full (without pro-ration), with any specified performance objectives with respect to such outstanding awards deemed to be satisfied at the “target” level.

 

(iii) Subject to Section 6 hereof, the Company shall pay to Executive the amount of any annual incentive that has been earned by Executive under the STIP for a completed fiscal year or other measuring period preceding the Date of Termination (or that would have been earned by Executive had his employment continued through the date such annual incentive is paid to other senior executives), but has not yet been paid to Executive (the “ Prior Year Annual Incentive ”), payable in a single lump sum no later than the date that annual incentives are payable to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP).

 

(iv) Subject to Section 6 hereof, if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, and except as otherwise provided in Section 5(a)(ii) or Section 5(a)(v), Executive will be eligible to receive an annual incentive under the STIP for the fiscal year during which the Date of Termination occurs, determined as if Executive had remained employed for the entire year (and any additional period of time necessary to be eligible to receive the annual incentive for the year), based on actual Company performance during the entire fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment), and assuming that any individual goals applicable to Executive were satisfied at the “target” level, pro-rated based on the number of days in the Company’s fiscal year through (and including) the Date of Termination (the “ Pro-Rated Annual Incentive ”).  The Pro-Rated Annual Incentive shall

6


 

 

be payable in a single lump sum at the same time that payments are made to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP).

 

(v) Subject to Section 6 hereof, if and only if Executive’s Date of Termination occurs prior to April 15, 2018, Executive will be eligible to receive an annual incentive under the STIP for fiscal year 2017 equal to the Target STI for fiscal 2017 (without pro-ration).  Any fiscal 2017 annual incentive pursuant to this Section 5(a)(v) shall be payable in a single lump sum on the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms.

 

(vi) Subject to Section 6 hereof, if Executive timely elects continued health and dental coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“ COBRA ”), the Company will pay Executive’s full COBRA premiums to continue his coverage (including coverage for his eligible dependents, if applicable) (the “ COBRA Premiums ”) for the 12-month period commencing on the Date of Termination (the “COBRA Premium Period”).  The COBRA Premium Period runs concurrently with the Severance Period.  During the COBRA Premium Period, an amount equal to the applicable COBRA Premiums (or such other amounts as may be required by law) will be included in Executive’s income for tax purposes to the extent required by applicable law and the Company may withhold taxes from Executive’s other compensation for this purpose.  Notwithstanding the foregoing, if Executive becomes re-employed with another employer and is eligible to receive substantially equivalent health benefits under another employer-provided plan, then the Company’s payment obligations and Executive’s right to the subsidized premium payments as described in this Section 5(a)(vi) shall cease.

 

(vii) To the extent not theretofore paid or provided, the Company shall pay or provide, or cause to be paid or provided, to Executive (or his estate) any other amounts, benefits or equity awards required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company, including any benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (such other amounts and benefits shall be hereinafter referred to as the “ Other Benefits ”) in accordance with the terms and normal procedures of each such plan, program, policy or practice or contract or agreement, based on accrued and vested benefits through the Date of Termination.

 

(b) Cause; Other than for Good Reason .  If, during the Term, Executive’s employment is terminated for Cause, or if Executive voluntarily terminates his employment without Good Reason, then the Company shall pay or provide to Executive the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, and the Other Benefits, and no further amounts shall be payable to Executive under this Section 5 after the Date of Termination.

 

(c) Disability and Death .  If, during the Term, Executive’s employment is terminated for Disability or Executive dies, then the Company shall pay or provide to Executive (or his estate) (i) the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, (ii) the Other Benefits, (iii) subject to Section 6 hereof, the Prior Year Annual Incentive, payable in accordance with Section 5(a)(iii) of this Agreement, (iv) subject to Section 6 hereof, and if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, the Pro-Rated Annual Incentive, payable in accordance with Section

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5(a)(iv) of this Agreement, and (v) in the case of termination for Disability, and subject to Section 6 hereof, an amount equal to the excess, if any, of Executive’s Annual Base Salary for 6 months, over the amounts payable to Executive under the Company’s short-term disability insurance program, which amount shall be payable in equal semi-monthly or other installments (not less frequently than monthly) over the period commencing on the Date of Termination and ending 6 months thereafter, with the installments that otherwise would be paid within the first 60 calendar days after the Date of Termination being paid in a lump sum (without interest) on the 60th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination.

 

(d) Full Settlement; Offset .  The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company or any of its affiliates may have against Executive or others, except as otherwise may be provided in this Section or Section 2(g) or Section 10 hereof.  In no event shall  Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

 

(e) Section 280G .  In the event it shall be determined that any payment or distribution by the Company or any of its affiliates to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (the “ Total Payments ”), is or will be subject to the excise tax (the “ Excise Tax ”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “ Code ”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “ Safe Harbor Cap ”), if the net after-tax benefit to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) benefit to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the cash payments made pursuant to Section 5(a)(ii) of this Agreement, then to the payment made pursuant to Section 5(a)(iii) of this Agreement, then to any payment made pursuant to Section 5(a)(iv) of this Agreement, then to any payment made pursuant to Section 5(a)(v) of this Agreement, then to the benefits provided pursuant to Section 5(a)(vi) of this Agreement, and then to any other payment that triggers such Excise Tax in the following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of any other payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis). All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made under this paragraph, including determinations as to whether the Total Payments to Executive shall be reduced to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be made at the Company’s expense by a nationally recognized accounting firm mutually acceptable to the Company and Executive.

 

6. Release . Notwithstanding anything contained herein to the contrary, the Company shall not be obligated to make any payment or provide any benefit under Sections 5(a)(ii), (iii),

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(iv), (v) and (vi), or Sections 5(c)(iii), (iv) and (v) hereof unless:  (a) Executive or Executive’s legal representative first executes within 50 calendar days after the Date of Termination a release of claims agreement in the form attached hereto as Exhibit A , with such changes as the Company, after consulting with Executive or Executive’s legal representative, may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable law (the “ Release ”), (b) Executive does not revoke the Release, and (c) the Release becomes effective and irrevocable in accordance with its terms.

 

7. Work Product . Executive agrees that all inventions, drawings, improvements, developments, methods, processes, programs, designs and all similar or related information which relates to the Company’s or any of its affiliates’ actual or anticipated business or research and development or existing or future products or services and which are conceived, developed, contributed to or made by Executive (either solely or jointly with others) while employed by or serving as a consultant to the Company or any of its affiliates (“ Work Product ”) shall be the sole and exclusive property of the Company or any such affiliate. Executive will promptly disclose such Work Product to the Company and perform all actions requested by the Company (whether during or after employment) to establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments).

 

8. Confidential Information.

 

(a) Confidential Information ” means information disclosed to Executive or known by Executive as a result of employment by the Company, not generally known to the trade or industry in which the Company or its affiliates are engaged, about products, processes, technologies, machines, customers, clients, employees, services and strategies of the Company and its affiliates, including, but not limited to, inventions, research, development, manufacturing, purchasing, financing, computer software, computer hardware, automated systems, engineering, marketing, merchandising, selling, sales volumes or strategies, number or location of sales representatives, names or significance of the Company’s customers or clients or their employees or representatives, preferences, needs or requirements, purchasing histories, or other customer or client-specific information.  Such Confidential Information is and shall continue to be the property of the Company.

 

(b) Executive recognizes that Confidential Information is of great value to the Company, that the Company has legitimate business interests in protecting its confidential information, and that the disclosure to anyone not authorized to receive such information will cause immediate and irreparable injury to the Company.  Except as required by law or in the performance of his duties for the Company, unless Executive first secures the Company’s written consent, Executive will not divulge, disclose, use, copy, disseminate, lecture upon or publish Confidential Information.  Executive understands and agrees that the obligations not to disclose, use, disseminate, lecture upon or publish Confidential Information shall continue after termination of employment for any reason.  Further, Executive will use his best efforts and diligence to safeguard and to protect the Confidential Information against disclosure, misuse, espionage, loss or theft.

 

(c) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, Executive shall deliver (and in the event of

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Executive’s death or Disability, his representative shall deliver) to the Company all computer equipment or backup files of or relating to the Company or its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in his possession, custody or control.  If the Company requests, Executive (or his representative) agrees to provide written confirmation that Executive has returned all such materials.

 

(d) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, Executive shall assign all rights, title and interest in the Confidential Information, the Work Product, all computer equipment or backup files of or relating to the Company or its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in his possession, custody or control.

 

9. Non-compete; Non-solicitation.

 

(a) Executive agrees that during the Term and thereafter during the Protection Period (as defined in Section 9(f) below), Executive will not directly or indirectly (by himself or in association with any individual or entity) own, operate, manage, control, be employed by, participate in, consult with, advise, provide services for, or in any manner engage in any business which competes in any way with any business activity that the Company or its affiliates is conducting, or has active plans to conduct, as of the Date of Termination.  This restriction shall apply to any geographic area in which the Company, or any affiliate for which Executive had any responsibilities during the term of his employment, engaged in business, or had active plans to engage in business, during the term of Executive’s employment.  The restrictions contained herein shall not prohibit Executive from being a passive owner of not more than 5% of the outstanding stock of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation.  Notwithstanding the foregoing, with respect to an entity which is engaged in both a competing business and a non-competing business, Executive may provide services to the non-competing business, provided that Executive does not render any services or advice, directly or indirectly, to the competing business.

 

(b) Executive agrees that during the Term and thereafter during the Protection Period, Executive will not directly or indirectly:  (i) solicit or induce, or attempt to solicit or induce, any employee, consultant or independent contractor of the Company or of any affiliate to terminate his or her employment or relationship with the Company or affiliate; (ii) hire any person who Executive knows was an employee, consultant or independent contractor of the Company or of any affiliate during the last 6 months of Executive’s employment by the Company; or (iii) induce or attempt to induce any customer, supplier, distributor, franchisee, licensee, or other individual or entity that has any business relationship with the Company or any of its affiliate to cease doing business with the Company or any of its affiliates, or in any way interfere with the relationship between any such customer, supplier, distributor, franchisee, licensee, or any other individual or entity and the Company or any of its affiliates.

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(c) To enable the Company to monitor Executive’s compliance with the obligations imposed by this Agreement, Executive agrees to inform the Company, upon the Date of Termination, of the identity of any new employer and of Executive’s new job title.  Executive will continue to so inform the Company, in writing, any time Executive changes employment during the Protection Period.

 

(d) In the event that any of these provisions are deemed invalid or unenforceable under applicable law, that shall not affect the validity or enforceability of the remaining provisions.  To the extent any provision is unenforceable because it is overbroad, that provision shall be limited to the extent required by applicable law and enforced as so limited.

 

(e) Executive has carefully considered the nature and extent of the restrictions upon him and the rights and remedies conferred upon the Company under this Section 9, and hereby acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition that otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are fully required to protect the legitimate interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive.

 

(f) For purposes of this Section 9, the term “Protection Period” shall mean the period commencing on the Date of Termination and ending on the date 18 months after the Date of Termination, provided, however, that such period shall be extended by any length of time during which Executive is in breach of the covenants contained in this Section 9.

 

10. Remedies .  Executive recognizes and affirms that in the event of his breach of any provision of Sections 7, 8 or 9 hereof, money damages would be inadequate and the Company would have no adequate remedy at law. Accordingly, Executive agrees that in the event of a breach or a threatened breach by Executive of any of the provisions of Sections 7, 8 or 9, the Company, in addition and supplementary to other rights and remedies existing in its favor, may (a) apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security), and (b) exercise its rights hereunder to cease any further payments and/or vesting of equity awards.  Executive understands and acknowledges that the Company can bar him from disclosing or using Confidential Information, bar him from accepting or continuing prohibited employment or rendering prohibited services, or bar him from soliciting certain individuals and entities for the periods specified in Sections 7, 8 and 9 above.  In the event that the Company institutes legal action to enforce Sections 7, 8 or 9 of this Agreement, Executive agrees that the Company shall be entitled to recover from him its costs of any action (including reasonable attorneys’ and expert fees and expenses).  Nothing in this Section 10 will be deemed to limit the Company’s remedies at law or in equity for any breach by Executive of any of the provisions of Sections 7, 8 or 9 that may be pursued or availed of by the Company.

 

11. Cooperation in Investigations and Proceedings. During the Term and for a period of 5 years thereafter, Executive shall cooperate with the Company and its affiliates, upon the Company’s reasonable request, with respect to any internal investigation or administrative, regulatory or judicial proceeding involving matters occurring, in whole or in part, during such

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employment with the Company and within the scope of Executive’s duties and responsibilities to the Company during his employment with the Company (including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process, and turning over to the Company all relevant Company documents which are or may have come into Executive’s possession during his employment).  In requesting Executive’s cooperation, the Company shall take into account his other personal and professional obligations.  Executive shall be reimbursed for the reasonable expenses Executive incurs in connection with any such cooperation and/or assistance and shall receive from the Company hourly compensation equal to the Annual Base Salary immediately prior to the Date of Termination divided by 1,800 hours, in each case in connection with any assistance or cooperation that occurs after the Date of Termination.  Any such reimbursements or per diem compensation shall be paid to Executive no later than the 15th day of the month immediately following the month in which such expenses were incurred or such cooperation and/or assistance was provided (subject to Executive’s timely submission to the Company of proper documentation with respect thereto).

 

12. Survival .   Subject to any limits on applicability contained therein, Sections 2(g), 3(f), 4(f), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22 and 23 shall survive and continue in full force in accordance with their terms notwithstanding any termination of the Term or this Agreement.

 

13. Notices .   Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight carrier or mailed by first class mail, return receipt requested, to the recipient.  Notices to Executive shall be sent to the address of Executive most recently provided to the Company.  Notices to the Company should be sent to Global Power Equipment Group Inc., 400 E. Las Colinas Boulevard, Suite No. 400 Irving, TX 75039, Attention:  Corporate Secretary.  Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.

 

14. Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

15. Source of Payment .   Any payments to Executive under this Agreement shall be paid from the Company’s general assets.

 

16. Complete Agreement . This Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way, including the employment agreement between Executive and the Company dated as of March 22, 2010.

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17. Withholding of Taxes .  The Company and its affiliates may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company and its affiliates are required to withhold pursuant to any law or government regulation or ruling.

 

18. Counterparts . This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and both of which taken together shall constitute one and the same agreement.

 

19. Successors and Assigns .

 

(a) This Agreement is personal to Executive, and, without the prior written consent of the Company, shall not be assignable by Executive other than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.  Except as provided in Section 19(c), without the prior written consent of Executive this Agreement shall not be assignable by the Company, except to an affiliate.

 

(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.  “ Company ” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

 

20. Choice of Law . This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of Texas, without regard to conflicts of law principles.  The parties hereto irrevocably agree to submit to the jurisdiction and venue of the federal and state courts located in Texas in any court action or proceeding brought with respect to or in connection with this Agreement.

 

21. Voluntary Agreement .  Executive and the Company represent and agree that each has reviewed all aspects of this Agreement, has carefully read and fully understands all provisions of this Agreement, and is voluntarily entering into this Agreement. Each party represents and agrees that such party has had the opportunity to review any and all aspects of this Agreement with legal, tax or other adviser(s) of such party’s choice before executing this Agreement.

 

22. Amendment and Waiver .  The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.

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23. Section 409A Compliance .

 

(a) In General .  Section 409A of the Internal Revenue Code of 1986, as amended (“ Section 409A ”), imposes payment restrictions on “nonqualified deferred compensation” ( i.e., potentially including payments owed to Executive upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to Executive, including immediate taxation, interest and a 20% additional income tax. It is the Company’s intent that this Agreement be exempt from the application of, or otherwise comply with, the requirements of Section 409A.  Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A, to the maximum extent possible.  If neither of these exceptions applies, and if Executive is a “specified employee” within the meaning of Section 409A, then notwithstanding any provision in this Agreement to the contrary and to the extent required to comply with Section 409A, all amounts that would otherwise be paid or provided during the first 6 months following the Date of Termination shall instead be accumulated through and paid or provided (without interest) on the first business day following the 6-month anniversary of the Date of Termination.

 

(b) Separation from Service .  A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and Executive is no longer providing services (at a level that would preclude the occurrence of a “separation from service” within the meaning of Section 409A) to the Company or its affiliates as an employee or consultant, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service” within the meaning of Section 409A.  Notwithstanding any other provision of this Agreement to the contrary, but only to the extent necessary to comply with Section 409A, if the period in which the Release required by Section 6 of this Agreement must be provided and become effective and irrevocable in accordance with its terms begins in one calendar year and ends in a second calendar year, payment of any nonqualified deferred compensation shall be made or commence on the later of (i) the first payroll date of the second calendar year, or (ii) the first payroll date after the date that the Release becomes effective and irrevocable in accordance with its terms

 

(c) Reimbursements .  With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last business day of Executive’s taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder.

 

[Signatures On Next Page]

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

EXECUTIVE

 

 

 

 

 

 

/s/ Linda A. Goodspeed

 

/s/ Craig Holmes

By: Linda A. Goodspeed
Its:  Chairman of the Compensation Committee of the Board of Directors

 

Craig Holmes

 

 

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EXHIBIT A
GENERAL RELEASE

 

This General Release (this “ Release ”) is made and entered into as of this [●] day of [●], 20[●], by and between Global Power Equipment Group Inc. (the “ Company ”) and Craig Holmes (“ Executive ”).

 

1. Employment Status . Executive’s employment with the Company and its affiliates terminated effective as of [●], 20[●] (the “ Separation Date ”).

 

2. Payments and Benefits .  Upon the effectiveness of the terms set forth herein, the Company shall provide Executive with the benefits set forth in Sections 5(a)(ii), (iii), (iv) (if applicable), (v) (if applicable) and (vi) of the Employment Agreement between Executive and the Company dated as of [●], 2017 (the “ Employment Agreement ”), upon the terms, and subject to the conditions, of the Employment Agreement.

 

3. No Liability . This Release does not constitute an admission by the Company or its affiliates or their respective officers, directors, partners, agents, or employees, or by Executive, of any unlawful acts or of any violation of federal, state or local laws.

 

4. Release .  In consideration of the payments and benefits set forth in Section 2 of this Release, Executive for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “ Releasors ”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Company, its respective affiliates and their respective successors and assigns (the “ Company Group ”) and each of its officers, directors, partners, agents, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “ Releasees ”), and each of them, from any and all claims, demands, actions, causes of action, costs, expenses, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which Executive has, had, or may ever have against the Releasees relating to or arising out of Executive’s employment or separation from employment with the Company Group, from the beginning of time and up to and including the date Executive executes this Release. This Release includes, without limitation: (a) law or equity claims; (b) contract (express or implied) or tort claims; (c) claims for wrongful discharge, retaliatory discharge, whistle blowing, libel, slander, defamation, unpaid compensation, intentional infliction of emotional distress, fraud, public policy contract or tort, and implied covenant of good faith and fair dealing; (d) claims under or associated with any of the Company Group’s incentive compensation plans or arrangements; (e) claims arising under any federal, state, or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation, or any other form of discrimination, harassment, or retaliation (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ ADEA ”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1963, and the Americans with Disabilities Act of 1990, the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act, the Employee Polygraph Protection Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Genetic Information Nondiscrimination Act of 2008 (“ GINA ”), the Fair Labor Standards Act (“ FLSA ”), the Lilly Ledbetter Fair Pay Act or any other foreign, federal, state or local law or judicial decision); (f) claims arising under the

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Employee Retirement Income Security Act; and (g) any other statutory or common law claims related to Executive’s employment with the Company Group or the separation of Executive’s employment with the Company Group.

 

Without limiting the foregoing paragraph, Executive represents that he understands that this Release specifically releases and waives any claims of age discrimination, known or unknown, that Executive may have against the Company Group as of the date he signs this Release.  This Release specifically includes a waiver of rights and claims under the Age Discrimination in Employment Act of 1967, as amended, and the Older Workers Benefit Protection Act.  Executive acknowledges that as of the date he signs this Release, he may have certain rights or claims under the Age Discrimination in Employment Act, 29 U.S.C. §626 and he voluntarily relinquishes any such rights or claims by signing this Release.

 

Notwithstanding the foregoing provisions of this Section 4, nothing herein shall release the Company Group from (i) any obligation under the Employment Agreement; (ii) any obligation to provide benefit entitlements under any Company benefit or welfare plan that were vested as of the Separation Date; and (iii) from any rights or claims that relate to events or circumstances that occur after the date that the Executive executes this Release.

 

5. Bar .  Executive acknowledges and agrees that if he should hereafter make any claim or demand or commence or threaten to commence any action, claim or proceeding against the Releasees with respect to any cause, matter or thing which is the subject of the release under Section 4 of this Release, this Release may be raised as a complete bar to any such action, claim or proceeding, and the applicable Releasee may recover from Executive all costs incurred in connection with such action, claim or proceeding, including attorneys’ fees, along with the benefits set forth in Section 2 of the Release.

 

6. Right to Engage in Protected Activity .  Nothing contained in this Release limits Executive’s ability to file a charge or complaint with any federal, state or local governmental agency or commission (a “ Government Agency ”).  In addition, nothing in this Release or the Employment Agreement or any other Company agreement, policy, practice, procedure, directive or instruction shall prohibit Executive from reporting possible violations of federal, state or local laws or regulations to any Government Agency or making other disclosures that are protected under the whistleblower provisions of federal, state or local laws or regulations.  Executive does not need prior authorization of any kind to make any such reports or disclosures and Executive is not required to notify the Company that Executive has made such reports or disclosures.  If Executive files any charge or complaint with any Government Agency, and if the Government Agency pursues any claim on Executive’s behalf, or if any other third party pursues any claim on Executive’s behalf, Executive waives any right to monetary or other individualized relief (either individually, or as part of any collective or class action) from the Releasees that arises out of alleged facts or circumstances on or before the effective date of this Release; provided that nothing in this Release or the Separation Agreement limits any right Executive may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission or other Government Agency.

 

7. Governing Law .  This Release shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of laws principles.

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8. Acknowledgment . Executive has read this Release, understands it, and voluntarily accepts its terms, and Executive acknowledges that he has been advised by the Company to seek the advice of legal counsel (at Executive’s cost) before entering into this Release. Executive acknowledges that he was given a period of 21 calendar days within which to consider and execute this Release, and to the extent that he executes this Release before the expiration of the 21-day period, he does so knowingly and voluntarily and only after consulting his attorney. Executive acknowledges and agrees that the promises made by the Company Group hereunder represent substantial value over and above that to which Executive would otherwise be entitled.  Executive acknowledges and reconfirms the promises in Sections 7, 8, 9, 10 and 11 of the Employment Agreement.

 

9. Revocation . Executive has a period of 7 calendar days following the execution of this Release during which Executive may revoke this Release by delivering written notice to the Company pursuant to Section 13 of the Employment Agreement, and this Release shall not become effective or enforceable until such revocation period has expired. Executive understands that if he revokes this Release, it will be null and void in its entirety, and he will not be entitled to any payments or benefits provided in this Release, including without limitation under Section 2 of the Release.

 

10. Miscellaneous . This Release is the complete understanding between Executive and the Company Group in respect of the subject matter of this Release and supersedes all prior agreements relating to Executive’s employment with the Company Group, except as specifically excluded by this Release. Executive has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Release. In the event that any provision of this Release should be held to be invalid or unenforceable, each and all of the other provisions of this Release shall remain in full force and effect. If any provision of this Release is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Release to be upheld and enforced to the maximum extent permitted by law. Executive agrees to execute such other documents and take such further actions as reasonably may be required by the Company Group to carry out the provisions of this Release.

 

11. Counterparts . This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original.

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

EXECUTIVE

 

 

[Form of release — Do not sign]

 

 

 

 

 

 

By:
Its:

 

Craig Holmes

 

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Exhibit 10.57

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (“ Agreement ”) is effective as of the 11th day of September, 2017 (the “ Effective Date ”), between Global Power Equipment Group Inc. (the “ Company ”) and Erin Gonzalez (“ Executive ”).  In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Employment .  The Company shall employ Executive, and Executive accepts employment with the Company, upon the terms and subject to the conditions set forth in this Agreement, for the period beginning on the Effective Date and ending on the Date of Termination (as defined in Section 4(e) of this Agreement) (the  “ Term ”).

 

2. Position and Duties; Location .

 

(a) Position and Duties .  During the Term, Executive shall be employed by the Company as Chief Financial Officer.  Executive shall report solely to the Co-Chief Executive Officers of the Company and shall have such duties, responsibilities and authorities as are customarily associated with her position (including, but not limited to, the general management of the affairs of the Company) and such additional duties and responsibilities consistent with her positions as may, from time to time, be properly and lawfully assigned to her.

 

(b) Engaging in Other Activities .  During the Term, Executive shall devote substantially all of her business time, energies and talents to serving as Chief Financial Officer of the Company, and shall perform her duties conscientiously and faithfully, subject to the reasonable and lawful directions of the Co-Chief Executive Officers and the Board of Directors of the Company (the “ Board ”) and in accordance with the policies, rules and decisions adopted from time to time by the Company and the Board.  During the Term, it shall not be a violation of this Agreement for Executive, subject to the requirements of Sections 7, 8 and 9 hereof, to (i) serve on civic or charitable boards, (ii) with the consent of the Board, which consent shall not be unreasonably withheld, serve on corporate boards unrelated to the Company (and retain all compensation in whatever form for such service), (iii) deliver lectures and fulfill speaking engagements, and (iv) manage personal investments, so long as such activities (individually or in the aggregate) do not significantly interfere with the performance of Executive’s responsibilities as set forth in Section 2(a) of this Agreement or Executive’s fiduciary duties to the Company.

 

(c) Location .  Executive shall perform her duties and responsibilities hereunder principally at the Company’s corporate headquarters, which currently is in Irving, Texas; provided that Executive may be required under reasonable business circumstances to travel outside of such location in connection with performing her duties under this Agreement.

 

(d) Affiliates .  Executive agrees to serve, without additional compensation, as an officer and director of each of the other members of the Company’s affiliates, as determined by the Board, provided that such service is covered by Section 3(g) of this Agreement.  As used in this Agreement, the term “ affiliate ” shall mean any entity controlled by, controlling, or under common control with, the Company.


 

 

(e) Stock Ownership Guidelines .  Executive acknowledges and agrees to comply with the Company’s stock ownership guidelines for the Chief Financial Officer position, as the same may be amended from time to time.

 

(f) Compensation Recovery Policy .  Executive acknowledges that, notwithstanding any provision of this Agreement to the contrary, any incentive compensation or performance-based compensation paid or payable to Executive hereunder shall be subject to repayment or recoupment obligations arising under applicable law or the Company’s Compensation Recovery Policy, as the same may be amended from time to time.

 

3. Compensation and Benefits .

 

(a) Base Salary . During the Term, the Company shall pay Executive an annualized base salary (“ Annual Base Salary ”) at a rate of $275,000 U.S., effective retroactively to August 2, 2017, and payable in regular installments in accordance with the Company’s normal payroll practices.  During the Term, the Annual Base Salary shall be reviewed by the Board at such time as the salaries of other senior executives of the Company are reviewed generally.  The Annual Base Salary shall not be reduced other than in connection with an across-the-board salary reduction which applies in a comparable manner to other senior executives of the Company.  If so increased or reduced, then such adjusted salary will thereafter be the Annual Base Salary for all purposes under this Agreement.

 

(b) Annual Incentive .  For each fiscal year during the Term, Executive shall be eligible to participate in the Company’s Short-Term Incentive Plan, or any successor plan (the “ STIP ”), under terms and conditions no less favorable than other senior executives of the Company; provided that Executive’s “target” short-term incentive opportunity shall not be less than 50% of her Annual Base Salary (the “ Target STI ”), effective as of August 2, 2017. Executive’s payment under the STIP for any fiscal year during the Term shall be based on the extent to which the predetermined performance objectives established by the Board or a committee thereof have been achieved for that year; provided that, if Executive remains continuously employed by the Company through April 15, 2018, the amount of Executive’s annual incentive bonus for the 2017 fiscal year shall be not less than the Target STI for such fiscal year.  The annual incentive for any fiscal year, if earned, will be paid to Executive by the Company in accordance with the terms, and subject to the conditions, of the STIP.

 

(c) Project Bonus .  Executive shall be entitled to a bonus in the amount of $40,000 U.S. provided that (i) the Company files all required 2017 Form 10-Qs with the Securities and Exchange Commission by December 15, 2017, (ii) the Company files its 2017 Form 10-K with the Securities and Exchange Commission by March 31, 2018, and (iii) Executive remains continuously employed by the Company through March 31, 2018 (the “ Project Bonus ”).  The Project Bonus, if earned, shall be paid to Executive in cash during April, 2018.

 

(d) Vacation .  During the Term, Executive shall be eligible for paid vacation in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally; provided that Executive shall be entitled to paid vacation time at a rate of no less than 4 weeks per calendar year.  Executive shall use such vacation time at such reasonable

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time or times each year as she may determine after consultation with the Co-Chief Executive Officers.

 

(e) Expense Reimbursement .  Executive shall be reimbursed for all reasonable travel and other out-of-pocket expenses actually and properly incurred by Executive during the Term in connection with carrying out her duties hereunder in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally.

 

(f) Benefits .  During the Term, and except as otherwise provided in this Agreement, Executive shall be eligible to participate in all welfare, perquisites, fringe benefit, insurance, retirement and other benefit plans, practices, policies and programs, maintained by the Company and its affiliates applicable to senior executives of the Company generally, in each case as amended from time to time.

 

(g) Indemnification and Insurance . The Company shall indemnify Executive to the full extent provided for in its corporate charter, bylaws or any other indemnification policy or procedure as in effect from time to time and applicable to its other directors and senior executives and to the maximum extent that the Company indemnifies any of its other directors and senior executives, and she will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executives against all costs, charges, liabilities and expenses incurred or sustained by her in connection with any action, suit or proceeding to which she may be made a party by reason of her being or having been a director, officer or employee of the Company or any of its affiliates or her serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement).

 

4. Termination of Employment .

 

(a) Death and Disability .  Executive’s employment shall terminate automatically upon Executive’s death.  If the Company determines in good faith that the Disability (as defined below) of Executive has occurred during the Term, it may give to Executive written notice in accordance with Section 13 of this Agreement of its intention to terminate Executive’s employment; provided that such notice is provided no later than 150 calendar days following the determination of Executive’s Disability.  In such event, Executive’s employment shall terminate effective on the 30th calendar day after receipt of such notice by Executive (the “ Disability Effective Date ”), provided that, within the 30 calendar days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties.  For purposes of this Agreement, “ Disability ” shall mean the inability of Executive to perform the essential duties of the position held by Executive by reason of any medically determined physical or mental impairment that is reasonably expected to result in death or lasts for 120 consecutive calendar days in any one-year period, all as determined by an independent licensed physician mutually acceptable to the Company and Executive or Executive’s legal representative.

 

(b) Cause .  Executive’s employment with the Company may be terminated by the Company with or without Cause.  For purposes of this Agreement, “ Cause ” shall mean: (i) the continued failure of Executive to perform substantially Executive’s duties with the Company or

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any of its affiliates or Executive’s material disregard of the directives of the Board (in each case other than any such failure resulting from any medically determined physical or mental impairment) that is not cured by Executive within 20 calendar days after a written demand for substantial performance is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has not substantially performed Executive’s duties or disregarded a directive of the Board; (ii) willful material misrepresentation at any time by Executive to the Board; (iii) Executive’s commission of any act of fraud, misappropriation (other than misappropriation of a de minimis nature) or embezzlement against or in connection with the Company or any of its affiliates or their respective businesses or operations; (iv) a conviction, guilty plea or plea of nolo contendere of Executive for any crime involving dishonesty or for any felony; (v) a material breach by Executive of her fiduciary duties of loyalty or care to the Company or any of its affiliates or a material violation of the Company’s Code of Business Conduct and Ethics or any other material breach of a Company policy, as the same may be amended from time to time; (vi) the engaging by Executive in illegal conduct, gross misconduct, gross insubordination or gross negligence that is materially and demonstrably injurious to the Company’s business or financial condition; or (vii) a material breach by Executive of her obligations under Section 7, 8, 9 or 11 of this Agreement that, in the case of Sections 7, 8 or 11, is not cured (if curable) by Executive within 20 calendar days after written demand for such cure is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has materially breached her obligations.

 

(c) Good Reason .  Executive’s employment with the Company may be terminated by Executive with or without Good Reason.  For purposes of this Agreement, “ Good Reason ”  shall mean the occurrence of any of the following without Executive’s consent: (i) a material reduction by the Company of Executive’s title, duties, responsibilities or reporting relationship set forth in Section 2(a); (ii) a material reduction by the Company of Executive’s Annual Base Salary (other than as permitted in Section 3(a) of this Agreement) or Executive’s Target STI; or (iii) the relocation of Executive’s principal place of employment outside of the Dallas, Texas metropolitan area, provided that Executive may be required to travel on business to the extent necessary to efficiently perform her duties under this Agreement, and such business travel shall not constitute Good Reason hereunder; or (iv) any other material breach of this Agreement by the Company.  A termination of Executive’s employment by Executive shall not be deemed to be for Good Reason unless (x) Executive gives notice to the Company of the existence of the event or condition constituting Good Reason within 30 calendar days after such event or condition initially occurs or exists, and (y) the Company fails to cure such event or condition within 30 calendar days after receiving such notice.  Additionally, Executive must terminate her employment within 120 calendar days after the initial occurrence of the circumstance constituting Good Reason for such termination to be “Good Reason” hereunder.

 

(d) Notice of Termination .  Any termination by the Company for Cause, or by  Executive for Good Reason, shall be communicated by Notice of Termination to the other party in accordance with Section 13.  For purposes of this Agreement, a “ Notice of Termination ” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than 30 calendar days

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after the giving of such notice).  The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Company or Executive, respectively, hereunder or preclude the Company or Executive, respectively, from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights hereunder.

 

(e) Date of Termination . “ Date of Termination ” means (i) if Executive’s employment is terminated by the Company for Cause, or by Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein within 30 calendar days after such notice, as the case may be, (ii) if Executive’s employment is terminated by the Company other than for Cause or Disability, or if Executive voluntarily resigns without Good Reason, the date on which the terminating party notifies the other party that such termination shall be effective, provided that on a voluntary resignation without Good Reason, the Company may, in its sole discretion, make such termination effective on any date it elects in writing between the date of the notice and the proposed date of termination specified in the notice, (iii) if Executive’s employment is terminated by reason of death, the date of death of Executive, or (iv) if Executive’s employment is terminated by the Company due to Disability, the Disability Effective Date.

 

(f) Resignation from All Positions .  Notwithstanding any other provision of this Agreement, upon the termination of Executive’s employment by the Company for any reason, Executive shall immediately resign from all positions that she holds or has ever held with the Company and its affiliates.  Executive hereby agrees to execute any and all documentation to effectuate such resignations upon request by the Company, but she shall be treated for all purposes as having so resigned upon termination of her employment, regardless of when or whether she executes any such documentation.

 

5. Severance Payments .

 

(a) Good Reason, Other than for Cause .  If, during the Term, the Company shall terminate Executive’s employment other than for Disability or Cause, or if Executive shall terminate employment for Good Reason:

 

(i) The Company shall pay, or cause to be paid, to Executive the sum of:  (A) the portion of Executive’s Annual Base Salary earned through the Date of Termination, to the extent not previously paid; and (B) any accrued vacation pay, to the extent not previously paid (the sum of the amounts described in clauses (A) and (B) shall be referred to as the “ Accrued Benefits ”).  The Accrued Benefits shall be paid in a single lump sum within 30 calendar days after the Date of Termination.

 

(ii) Subject to Section 6 hereof, the Company shall continue to pay, or cause to be paid, to Executive, continued Annual Base Salary (without taking into account any reduction to the Annual Base Salary that constitutes Good Reason for Executive’s termination), for the 12-month period commencing on the Date of Termination (such period, the “ Severance Period ”), payable over the Severance Period in equal semi-monthly or other installments (not less frequently than monthly), commencing with the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms (and with the first such installment including any such Annual Base Salary amount that otherwise

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would have been paid earlier in the Severance Period, and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination).  Notwithstanding the foregoing, if the termination described in this Section 5(a) occurs within 90 calendar days prior to, or within 2 years following, a Change in Control (as defined in the Company’s 2015 Equity Incentive Plan (the “ Equity Incentive Plan ”), provided that, for the avoidance of doubt, for purposes of this Agreement, a “Business Combination”, which may constitute a Change in Control as defined in the Equity Incentive Plan, shall be deemed to include any disposition of two or more of the Company’s business segments and the completion of any related corporate restructuring or transition identified by the Board, then, in addition to the amounts described in the first sentence of this Section 5(a)(ii): (A) if the Date of Termination occurs during fiscal 2018, the Company shall pay or cause to be paid to Executive, in lieu of any Pro-Rated Annual Incentive under Section 5(a)(iv), a lump sum payment equal to Executive’s Target STI under the STIP for the 2018 fiscal year (without pro-ration), payable on the first regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms; and (B) to the extent that the same treatment is not otherwise provided under the Equity Incentive Plan and the applicable award agreements, each of Executive’s then outstanding equity incentive awards shall become vested in full (without pro-ration), with any specified performance objectives with respect to such outstanding awards deemed to be satisfied at the “target” level.

 

(iii) Subject to Section 6 hereof, the Company shall pay to Executive the amount of any annual incentive that has been earned by Executive under the STIP for a completed fiscal year or other measuring period preceding the Date of Termination (or that would have been earned by Executive had her employment continued through the date such annual incentive is paid to other senior executives), but has not yet been paid to Executive (the “ Prior Year Annual Incentive ”), payable in a single lump sum no later than the date that annual incentives are payable to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP).

 

(iv) Subject to Section 6 hereof, if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, and except as otherwise provided in Section 5(a)(ii) or Section 5(a)(v), Executive will be eligible to receive an annual incentive under the STIP for the fiscal year during which the Date of Termination occurs, determined as if Executive had remained employed for the entire year (and any additional period of time necessary to be eligible to receive the annual incentive for the year), based on actual Company performance during the entire fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment), and assuming that any individual goals applicable to Executive were satisfied at the “target” level, pro-rated based on the number of days in the Company’s fiscal year through (and including) the Date of Termination (the “ Pro-Rated Annual Incentive ”).  The Pro-Rated Annual Incentive shall be payable in a single lump sum at the same time that payments are made to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP).

 

(v) Subject to Section 6 hereof, if and only if Executive’s Date of Termination occurs prior to April 15, 2018, Executive will be eligible to receive an annual incentive under the STIP for fiscal 2017 equal to the Target STI for fiscal 2017 (without pro-ration).  Any fiscal 2017 annual incentive pursuant to this Section 5(a)(v) shall be payable in a single lump sum on the first

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regular payroll date occurring after the Release required by Section 6 becomes effective and irrevocable in accordance with its terms.

 

(vi) Subject to Section 6 hereof, if Executive timely elects continued health and dental coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“ COBRA ”), the Company will pay Executive’s full COBRA premiums to continue her coverage (including coverage for her eligible dependents, if applicable) (the “ COBRA Premiums ”) for the 12-month period commencing on the Date of Termination (the “COBRA Premium Period”).  The COBRA Premium Period runs concurrently with the Severance Period.  During the COBRA Premium Period, an amount equal to the applicable COBRA Premiums (or such other amounts as may be required by law) will be included in Executive’s income for tax purposes to the extent required by applicable law and the Company may withhold taxes from Executive’s other compensation for this purpose.  Notwithstanding the foregoing, if Executive becomes re-employed with another employer and is eligible to receive substantially equivalent health benefits under another employer-provided plan, then the Company’s payment obligations and Executive’s right to the subsidized premium payments as described in this Section 5(a)(vi) shall cease.

 

(vii) To the extent not theretofore paid or provided, the Company shall pay or provide, or cause to be paid or provided, to Executive (or her estate) any other amounts, benefits or equity awards required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company, including any benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (such other amounts and benefits shall be hereinafter referred to as the “ Other Benefits ”) in accordance with the terms and normal procedures of each such plan, program, policy or practice or contract or agreement, based on accrued and vested benefits through the Date of Termination.

 

(b) Cause; Other than for Good Reason .  If, during the Term, Executive’s employment is terminated for Cause, or if Executive voluntarily terminates her employment without Good Reason, then the Company shall pay or provide to Executive the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, and the Other Benefits, and no further amounts shall be payable to Executive under this Section 5 after the Date of Termination.

 

(c) Disability and Death .  If, during the Term, Executive’s employment is terminated for Disability or Executive dies, then the Company shall pay or provide to Executive (or her estate) (i) the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, (ii) the Other Benefits, (iii) subject to Section 6 hereof, the Prior Year Annual Incentive, payable in accordance with Section 5(a)(iii) of this Agreement, (iv) subject to Section 6 hereof, and if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, the Pro-Rated Annual Incentive, payable in accordance with Section 5(a)(iv) of this Agreement, and (v) in the case of termination for Disability, and subject to Section 6 hereof, an amount equal to the excess, if any, of Executive’s Annual Base Salary for 6 months, over the amounts payable to Executive under the Company’s short-term disability insurance program, which amount shall be payable in equal semi-monthly or other installments (not less frequently than monthly) over the period commencing on the Date of Termination and ending 6 months thereafter, with the installments that otherwise would be paid within the first 60 calendar days after the Date of Termination being paid in a lump sum (without interest) on the 60th day

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after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination.

 

(d) Full Settlement; Offset .  The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company or any of its affiliates may have against Executive or others, except as otherwise may be provided in this Section or Section 2(f) or Section 10 hereof.  In no event shall  Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment.

 

(e) Section 280G .  In the event it shall be determined that any payment or distribution by the Company or any of its affiliates to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (the “ Total Payments ”), is or will be subject to the excise tax (the “ Excise Tax ”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “ Code ”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “ Safe Harbor Cap ”), if the net after-tax benefit to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) benefit to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the cash payments made pursuant to Section 5(a)(ii) of this Agreement, then to the payment made pursuant to Section 5(a)(iii) of this Agreement, then to any payment made pursuant to Section 5(a)(iv) of this Agreement, then to any payment made pursuant to Section 5(a)(v) of this Agreement, then to any payment made pursuant to Section 5(a)(vi) of this Agreement, and then to any other payment that triggers such Excise Tax in the following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of any other payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis). All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made under this paragraph, including determinations as to whether the Total Payments to Executive shall be reduced to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be made at the Company’s expense by a nationally recognized accounting firm mutually acceptable to the Company and Executive.

 

6. Release . Notwithstanding anything contained herein to the contrary, the Company shall not be obligated to make any payment or provide any benefit under Sections 5(a)(ii), (iii), (iv), (v) and (vi), or Sections 5(c)(iii), (iv) and (v) hereof unless:  (a) Executive or Executive’s legal representative first executes within 50 calendar days after the Date of Termination a release of claims agreement in the form attached hereto as Exhibit A , with such changes as the Company, after consulting with Executive or Executive’s legal representative, may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable law (the “ Release ”), (b) Executive does not revoke the Release, and (c) the Release becomes effective and irrevocable in accordance with its terms.

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7. Work Product . Executive agrees that all inventions, drawings, improvements, developments, methods, processes, programs, designs and all similar or related information which relates to the Company’s or any of its affiliates’ actual or anticipated business or research and development or existing or future products or services and which are conceived, developed, contributed to or made by Executive (either solely or jointly with others) while employed by or serving as a consultant to the Company or any of its affiliates (“ Work Product ”) shall be the sole and exclusive property of the Company or any such affiliate. Executive will promptly disclose such Work Product to the Company and perform all actions requested by the Company (whether during or after employment) to establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments).

 

8. Confidential Information.

 

(a) Confidential Information ”  means information disclosed to Executive or known by Executive as a result of employment by the Company, not generally known to the trade or industry in which the Company or its affiliates are engaged, about products, processes, technologies, machines, customers, clients, employees, services and strategies of the Company and its affiliates, including, but not limited to, inventions, research, development, manufacturing, purchasing, financing, computer software, computer hardware, automated systems, engineering, marketing, merchandising, selling, sales volumes or strategies, number or location of sales representatives, names or significance of the Company’s customers or clients or their employees or representatives, preferences, needs or requirements, purchasing histories, or other customer or client-specific information.  Such Confidential Information is and shall continue to be the property of the Company.

 

(b) Executive recognizes that Confidential Information is of great value to the Company, that the Company has legitimate business interests in protecting its confidential information, and that the disclosure to anyone not authorized to receive such information will cause immediate and irreparable injury to the Company.  Except as required by law or in the performance of her duties for the Company, unless Executive first secures the Company’s written consent, Executive will not divulge, disclose, use, copy, disseminate, lecture upon or publish Confidential Information.  Executive understands and agrees that the obligations not to disclose, use, disseminate, lecture upon or publish Confidential Information shall continue after termination of employment for any reason.  Further, Executive will use her best efforts and diligence to safeguard and to protect the Confidential Information against disclosure, misuse, espionage, loss or theft.

 

(c) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, Executive shall deliver (and in the event of Executive’s death or Disability, her representative shall deliver) to the Company all computer equipment or backup files of or relating to the Company or its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in her possession, custody or control.  If the Company requests, Executive (or her representative) agrees to provide written confirmation that Executive has returned all such materials.

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(d) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, Executive shall assign all rights, title and interest in the Confidential Information, the Work Product, all computer equipment or backup files of or relating to the Company or its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in her possession, custody or control.

 

9. Non-compete; Non-solicitation.

 

(a) Executive agrees that during the Term and thereafter during the Protection Period (as defined in Section 9(f) below), Executive will not directly or indirectly (by herself or in association with any individual or entity) own, operate, manage, control, be employed by, participate in, consult with, advise, provide services for, or in any manner engage in any business which competes in any way with any business activity that the Company or its affiliates is conducting, or has active plans to conduct, as of the Date of Termination.  This restriction shall apply to any geographic area in which the Company, or any affiliate for which Executive had any responsibilities during the term of her employment, engaged in business, or had active plans to engage in business, during the term of Executive’s employment.  The restrictions contained herein shall not prohibit Executive from being a passive owner of not more than 5% of the outstanding stock of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation.  Notwithstanding the foregoing, with respect to an entity which is engaged in both a competing business and a non-competing business, Executive may provide services to the non-competing business, provided that Executive does not render any services or advice, directly or indirectly, to the competing business.

 

(b) Executive agrees that during the Term and thereafter during the Protection Period, Executive will not directly or indirectly:  (i) solicit or induce, or attempt to solicit or induce, any employee, consultant or independent contractor of the Company or of any affiliate to terminate his or her employment or relationship with the Company or affiliate; (ii) hire any person who Executive knows was an employee, consultant or independent contractor of the Company or of any affiliate during the last 6 months of Executive’s employment by the Company; or (iii) induce or attempt to induce any customer, supplier, distributor, franchisee, licensee, or other individual or entity that has any business relationship with the Company or any of its affiliate to cease doing business with the Company or any of its affiliates, or in any way interfere with the relationship between any such customer, supplier, distributor, franchisee, licensee, or any other individual or entity and the Company or any of its affiliates.

 

(c) To enable the Company to monitor Executive’s compliance with the obligations imposed by this Agreement, Executive agrees to inform the Company, upon the Date of Termination, of the identity of any new employer and of Executive’s new job title.  Executive will continue to so inform the Company, in writing, any time Executive changes employment during the Protection Period.

 

(d) In the event that any of these provisions are deemed invalid or unenforceable under applicable law, that shall not affect the validity or enforceability of the remaining provisions.  To

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the extent any provision is unenforceable because it is overbroad, that provision shall be limited to the extent required by applicable law and enforced as so limited.

 

(e) Executive has carefully considered the nature and extent of the restrictions upon her and the rights and remedies conferred upon the Company under this Section 9, and hereby acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition that otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are fully required to protect the legitimate interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive.

 

(f) For purposes of this Section 9, the term “Protection Period” shall mean the period commencing on the Date of Termination and ending on the date 12 months after the Date of Termination, provided, however, that such period shall be extended by any length of time during which Executive is in breach of the covenants contained in this Section 9.

 

10. Remedies .  Executive recognizes and affirms that in the event of her breach of any provision of Sections 7, 8 or 9 hereof, money damages would be inadequate and the Company would have no adequate remedy at law. Accordingly, Executive agrees that in the event of a breach or a threatened breach by Executive of any of the provisions of Sections 7, 8 or 9, the Company, in addition and supplementary to other rights and remedies existing in its favor, may (a) apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security), and (b) exercise its rights hereunder to cease any further payments and/or vesting of equity awards.  Executive understands and acknowledges that the Company can bar her from disclosing or using Confidential Information, bar her from accepting or continuing prohibited employment or rendering prohibited services, or bar her from soliciting certain individuals and entities for the periods specified in Sections 7, 8 and 9 above.  In the event that the Company institutes legal action to enforce Sections 7, 8 or 9 of this Agreement, Executive agrees that the Company shall be entitled to recover from her its costs of any action (including reasonable attorneys’ and expert fees and expenses).  Nothing in this Section 10 will be deemed to limit the Company’s remedies at law or in equity for any breach by Executive of any of the provisions of Sections 7, 8 or 9 that may be pursued or availed of by the Company.

 

11. Cooperation in Investigations and Proceedings. During the Term and for a period of 5 years thereafter, Executive shall cooperate with the Company and its affiliates, upon the Company’s reasonable request, with respect to any internal investigation or administrative, regulatory or judicial proceeding involving matters occurring, in whole or in part, during such employment with the Company and within the scope of Executive’s duties and responsibilities to the Company during her employment with the Company (including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process, and turning over to the Company all relevant Company documents which are or may have come into Executive’s possession during her employment).  In requesting Executive’s cooperation, the Company shall take into account her other personal and professional obligations.  Executive shall be reimbursed for the reasonable expenses Executive

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incurs in connection with any such cooperation and/or assistance and shall receive from the Company hourly compensation equal to the Annual Base Salary immediately prior to the Date of Termination divided by 1,800 hours, in each case in connection with any assistance or cooperation that occurs after the Date of Termination.  Any such reimbursements or per diem compensation shall be paid to Executive no later than the 15th day of the month immediately following the month in which such expenses were incurred or such cooperation and/or assistance was provided (subject to Executive’s timely submission to the Company of proper documentation with respect thereto).

 

12. Survival .   Subject to any limits on applicability contained therein, Sections 2(f), 3(g), 4(f), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22 and 23 shall survive and continue in full force in accordance with their terms notwithstanding any termination of the Term or this Agreement.

 

13. Notices .   Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight carrier or mailed by first class mail, return receipt requested, to the recipient.  Notices to Executive shall be sent to the address of Executive most recently provided to the Company.  Notices to the Company should be sent to Global Power Equipment Group Inc., 400 E. Las Colinas Boulevard, Suite No. 400 Irving, TX 75039, Attention:  Corporate Secretary.  Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.

 

14. Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

15. Source of Payment .   Any payments to Executive under this Agreement shall be paid from the Company’s general assets.

 

16. Complete Agreement . This Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way.  For the avoidance of doubt, the parties acknowledge that Executive shall cease to participate in the Company’s Executive Severance Plan as of the Effective Date.

 

17. Withholding of Taxes .  The Company and its affiliates may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company and its affiliates are required to withhold pursuant to any law or government regulation or ruling.

 

18. Counterparts . This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and both of which taken together shall constitute one and the same agreement.

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19. Successors and Assigns .

 

(a) This Agreement is personal to Executive, and, without the prior written consent of the Company, shall not be assignable by Executive other than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.

 

(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.  Except as provided in Section 19(c), without the prior written consent of Executive this Agreement shall not be assignable by the Company, except to an affiliate.

 

(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.  “ Company ” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.

 

20. Choice of Law . This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of Texas, without regard to conflicts of law principles.  The parties hereto irrevocably agree to submit to the jurisdiction and venue of the federal and state courts located in Texas in any court action or proceeding brought with respect to or in connection with this Agreement.

 

21. Voluntary Agreement .  Executive and the Company represent and agree that each has reviewed all aspects of this Agreement, has carefully read and fully understands all provisions of this Agreement, and is voluntarily entering into this Agreement. Each party represents and agrees that such party has had the opportunity to review any and all aspects of this Agreement with legal, tax or other adviser(s) of such party’s choice before executing this Agreement.

 

22. Amendment and Waiver .  The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.

 

23. Section 409A Compliance .

 

(a) In General .  Section 409A of the Internal Revenue Code of 1986, as amended (“ Section 409A ”), imposes payment restrictions on “nonqualified deferred compensation” ( i.e., potentially including payments owed to Executive upon termination of employment).  Failure to comply with these restrictions could result in negative tax consequences to Executive, including immediate taxation, interest and a 20% additional income tax. It is the Company’s intent that this Agreement be exempt from the application of, or otherwise comply with, the requirements of Section 409A.  Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to

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qualify for the involuntary separation pay exceptions to Section 409A, to the maximum extent possible.  If neither of these exceptions applies, and if Executive is a “specified employee” within the meaning of Section 409A, then notwithstanding any provision in this Agreement to the contrary and to the extent required to comply with Section 409A, all amounts that would otherwise be paid or provided during the first 6 months following the Date of Termination shall instead be accumulated through and paid or provided (without interest) on the first business day following the 6-month anniversary of the Date of Termination.

 

(b) Separation from Service .  A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and Executive is no longer providing services (at a level that would preclude the occurrence of a “separation from service” within the meaning of Section 409A) to the Company or its affiliates as an employee or consultant, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service” within the meaning of Section 409A.  Notwithstanding any other provision of this Agreement to the contrary, but only to the extent necessary to comply with Section 409A, if the period in which the Release required by Section 6 of this Agreement must be provided and become effective and irrevocable in accordance with its terms begins in one calendar year and ends in a second calendar year, payment of any nonqualified deferred compensation shall be made or commence on the later of (i) the first payroll date of the second calendar year, or (ii) the first payroll date after the date that the Release becomes effective and irrevocable in accordance with its terms

 

(c) Reimbursements .  With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last business day of Executive’s taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

EXECUTIVE

 

 

 

 

 

 

/s/ Tracy D. Pagliara

 

/s/ Erin Gonzalez

By: Tracy D. Pagliara
Its:  Co-Chief Executive Officer

 

Erin Gonzalez

 

 

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EXHIBIT A
GENERAL RELEASE

 

This General Release (this “ Release ”) is made and entered into as of this [●] day of [●], 20[●], by and between Global Power Equipment Group Inc. (the “ Company ”) and Erin Gonzalez  (“ Executive ”).

 

1. Employment Status . Executive’s employment with the Company and its affiliates terminated effective as of [●], 20[●] (the “ Separation Date ”).

 

2. Payments and Benefits .  Upon the effectiveness of the terms set forth herein, the Company shall provide Executive with the benefits set forth in Sections 5(a)(ii), (iii), (iv) (if applicable), (v) (if applicable) and (vi) of the Employment Agreement between Executive and the Company dated as of [●], 2017 (the “ Employment Agreement ”), upon the terms, and subject to the conditions, of the Employment Agreement.

 

3. No Liability . This Release does not constitute an admission by the Company or its affiliates or their respective officers, directors, partners, agents, or employees, or by Executive, of any unlawful acts or of any violation of federal, state or local laws.

 

4. Release .  In consideration of the payments and benefits set forth in Section 2 of this Release, Executive for herself, her heirs, administrators, representatives, executors, successors and assigns (collectively, “ Releasors ”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Company, its respective affiliates and their respective successors and assigns (the “ Company Group ”) and each of its officers, directors, partners, agents, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “ Releasees ”), and each of them, from any and all claims, demands, actions, causes of action, costs, expenses, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which Executive has, had, or may ever have against the Releasees relating to or arising out of Executive’s employment or separation from employment with the Company Group, from the beginning of time and up to and including the date Executive executes this Release. This Release includes, without limitation: (a) law or equity claims; (b) contract (express or implied) or tort claims; (c) claims for wrongful discharge, retaliatory discharge, whistle blowing, libel, slander, defamation, unpaid compensation, intentional infliction of emotional distress, fraud, public policy contract or tort, and implied covenant of good faith and fair dealing; (d) claims under or associated with any of the Company Group’s incentive compensation plans or arrangements; (e) claims arising under any federal, state, or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation, or any other form of discrimination, harassment, or retaliation (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ ADEA ”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1963, and the Americans with Disabilities Act of 1990, the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act, the Employee Polygraph Protection Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Genetic Information Nondiscrimination Act of 2008 (“ GINA ”), the Fair Labor Standards Act (“ FLSA ”), the Lilly Ledbetter Fair Pay Act or any other foreign, federal, state or local law or judicial decision); (f) claims arising under the

 

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Employee Retirement Income Security Act; and (g) any other statutory or common law claims related to Executive’s employment with the Company Group or the separation of Executive’s employment with the Company Group.

 

Without limiting the foregoing paragraph, Executive represents that she understands that this Release specifically releases and waives any claims of age discrimination, known or unknown, that Executive may have against the Company Group as of the date she signs this Release.  This Release specifically includes a waiver of rights and claims under the Age Discrimination in Employment Act of 1967, as amended, and the Older Workers Benefit Protection Act.  Executive acknowledges that as of the date she signs this Release, she may have certain rights or claims under the Age Discrimination in Employment Act, 29 U.S.C. §626 and she voluntarily relinquishes any such rights or claims by signing this Release.

 

Notwithstanding the foregoing provisions of this Section 4, nothing herein shall release the Company Group from (i) any obligation under the Employment Agreement; (ii) any obligation to provide benefit entitlements under any Company benefit or welfare plan that were vested as of the Separation Date; and (iii) from any rights or claims that relate to events or circumstances that occur after the date that the Executive executes this Release.

 

5. Bar .  Executive acknowledges and agrees that if she should hereafter make any claim or demand or commence or threaten to commence any action, claim or proceeding against the Releasees with respect to any cause, matter or thing which is the subject of the release under Section 4 of this Release, this Release may be raised as a complete bar to any such action, claim or proceeding, and the applicable Releasee may recover from Executive all costs incurred in connection with such action, claim or proceeding, including attorneys’ fees, along with the benefits set forth in Section 2 of the Release.

 

6. Right to Engage in Protected Activity .  Nothing contained in this Release limits Executive’s ability to file a charge or complaint with any federal, state or local governmental agency or commission (a “ Government Agency ”).  In addition, nothing in this Release or the Employment Agreement or any other Company agreement, policy, practice, procedure, directive or instruction shall prohibit Executive from reporting possible violations of federal, state or local laws or regulations to any Government Agency or making other disclosures that are protected under the whistleblower provisions of federal, state or local laws or regulations. Executive does not need prior authorization of any kind to make any such reports or disclosures and Executive is not required to notify the Company that Executive has made such reports or disclosures.  If Executive files any charge or complaint with any Government Agency, and if the Government Agency pursues any claim on Executive’s behalf, or if any other third party pursues any claim on Executive’s behalf, Executive waives any right to monetary or other individualized relief (either individually, or as part of any collective or class action) from the Releasees that arises out of alleged facts or circumstances on or before the effective date of this Release; provided that nothing in this Release or the Separation Agreement limits any right Executive may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission or other Government Agency.

 

7. Governing Law .  This Release shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of laws principles.

 

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8. Acknowledgment . Executive has read this Release, understands it, and voluntarily accepts its terms, and Executive acknowledges that she has been advised by the Company to seek the advice of legal counsel (at Executive’s cost) before entering into this Release. Executive acknowledges that she was given a period of 21 calendar days within which to consider and execute this Release, and to the extent that she executes this Release before the expiration of the 21-day period, she does so knowingly and voluntarily and only after consulting her attorney. Executive acknowledges and agrees that the promises made by the Company Group hereunder represent substantial value over and above that to which Executive would otherwise be entitled.  Executive acknowledges and reconfirms the promises in Sections 7, 8, 9, 10 and 11 of the Employment Agreement.

 

9. Revocation . Executive has a period of 7 calendar days following the execution of this Release during which Executive may revoke this Release by delivering written notice to the Company pursuant to Section 13 of the Employment Agreement, and this Release shall not become effective or enforceable until such revocation period has expired. Executive understands that if she revokes this Release, it will be null and void in its entirety, and she will not be entitled to any payments or benefits provided in this Release, including without limitation under Section 2 of the Release.

 

10. Miscellaneous . This Release is the complete understanding between Executive and the Company Group in respect of the subject matter of this Release and supersedes all prior agreements relating to Executive’s employment with the Company Group, except as specifically excluded by this Release. Executive has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Release. In the event that any provision of this Release should be held to be invalid or unenforceable, each and all of the other provisions of this Release shall remain in full force and effect. If any provision of this Release is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Release to be upheld and enforced to the maximum extent permitted by law. Executive agrees to execute such other documents and take such further actions as reasonably may be required by the Company Group to carry out the provisions of this Release.

 

11. Counterparts . This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original.

 

GLOBAL POWER EQUIPMENT GROUP INC.

 

EXECUTIVE

 

 

[Form of release — Do not sign]

 

 

 

 

 

 

By:

Its:

 

Erin Gonzalez

 

A-3


Exhibit 21.1

 

Global Power Equipment Group Inc.

Annual Report on Form 10-K

Subsidiaries of Global Power Equipment Group Inc.

as of December 31, 2016

 

 

 

 

Consolidated Subsidiaries

  

Where Organized

Braden Construction Services, Inc.

 

Delaware

Braden Holdings, LLC

 

Delaware

Braden Manufacturing, L.L.C.

 

Delaware

Construction & Maintenance Professionals, LLC

 

Georgia

Global Power Professional Services Inc.

 

Delaware

Global Power Technical Services, Inc.

 

Delaware

GPEG, LLC

 

Delaware

Hetsco Holdings, Inc.

 

Delaware

Hetsco, Inc.

 

Delaware

Koontz-Wagner Custom Controls Holdings LLC

 

Indiana

Steam Enterprises LLC

 

Delaware

Williams Global Services, Inc.

 

Georgia

Williams Industrial Services, LLC

 

Georgia    

Williams Industrial Services Group, L.L.C.

 

Delaware

Williams Plant Services, LLC

 

Georgia

Williams Specialty Services, LLC

 

Georgia

 

 

 

Braden-Europe B.V.

 

The Netherlands

Braden Manufacturing SA de CV

 

Mexico

Braden Power Equipment (Shanghai) Co., Ltd.

 

The People’s Republic of China

Global Power Netherlands B.V.

 

The Netherlands

Global Power Professional Services Netherlands B.V.

 

The Netherlands

Global Power Equipment Group (Hong Kong) Limited

 

Hong Kong

GPEG C.V.

 

The Netherlands

GPEG Mexico Distributing, SA de CV

 

Mexico

 


Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statements (Nos. 333-174757, 333-169614 and 333-169613) on Form S-8 of Global Power Equipment Group, Inc. of our report dated September 12, 2017, relating to the consolidated financial statements of Global Power Equipment Group, Inc., appearing in this Annual Report on Form 10-K of Global Power Equipment Group, Inc. for the year ended December 31, 2016.

 

 

/s/ Hein & Associates LLP

 

 

 

Dallas, Texas

 

September 12, 2017

 

 


Exhibit 31.1

 

CERTIFICATION PURSUANT TO SECTION 302  

OF THE SARBANES-OXLEY ACT OF 2002  

I, Craig E. Holmes, certify that:

1.             I have reviewed this annual report on Form 10-K of Global Power Equipment Group Inc.;

2.             Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.              Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.             The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)           Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)           Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)           Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)            Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.             The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)            All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)            Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.   

 

 

 

 

Date: September 12, 2017

By:

/s/ Craig E. Holmes

 

 

Craig E. Holmes

 

 

Co-President and Co-Chief Executive Officer

 


Exhibit 31.2

CERTIFICATION PURSUANT TO SECTION 302  

OF THE SARBANES-OXLEY ACT OF 2002  

I, Tracy D. Pagliara, certify that:

1.            I have reviewed this annual report on Form 10-K of Global Power Equipment Group Inc.;

2.            Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.             Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.             The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)            Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)           Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)           Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)            Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.            The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)            All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)            Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.    

 

 

 

 

Date: September 12, 2017

By:

/s/ Tracy D. Pagliara

 

 

Tracy D. Pagliara

 

 

Co-President and Co-Chief Executive Officer

 


Exhibit 31.3

CERTIFICATION PURSUANT TO SECTION 302  

OF THE SARBANES-OXLEY ACT OF 2002  

I, Erin Gonzalez, certify that:

1.             I have reviewed this annual report on Form 10-K of Global Power Equipment Group Inc.;

2.             Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.              Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.             The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)            Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)          Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)           Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)            Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.             The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)            All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)            Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.  

 

 

 

 

Date: September 12, 2017

By:

/s/ Erin Gonzalez

 

 

Erin Gonzalez

 

 

Chief Financial Officer

 

 

 

 


Exhibit 32.1  

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,  

AS ADOPTED PURSUANT TO SECTION 906  

OF THE SARBANES-OXLEY ACT OF 2002  

Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, Craig E. Holmes, the Co-President and Co-Chief Executive Officer of Global Power Equipment Group Inc. (the “ Company ”), hereby certify, that, to my knowledge:  

1.              The Annual Report on Form 10-K for the period ended December 31, 2016 (the “ Report ”) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and  

2.              The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.  

 

 

 

Date: September 12, 2017

By:

/s/ Craig E. Holmes

 

 

Craig E. Holmes

 

 

Co-President and Co-Chief Executive Officer

 

A signed original of this written statement has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.  


Exhibit 32.2

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,  

AS ADOPTED PURSUANT TO SECTION 906  

OF THE SARBANES-OXLEY ACT OF 2002  

Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, Tracy D. Pagliara, the Co-President and Co-Chief Executive Officer of Global Power Equipment Group Inc. (the “ Company ”), hereby certify, that, to my knowledge:  

1.      The Annual Report on Form 10-K for the period ended December 31, 2016 (the “ Report ”) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and  

2.      The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.  

 

 

 

Date: September 12, 2017

By:

/s/ Tracy D. Pagliara

 

 

Tracy D. Pagliara

 

 

Co-President and Co-Chief Executive Officer

 

A signed original of this written statement has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.  


Exhibit 32.3

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,  

AS ADOPTED PURSUANT TO SECTION 906  

OF THE SARBANES-OXLEY ACT OF 2002  

Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, Erin Gonzalez, the Chief Financial Officer of Global Power Equipment Group Inc. (the “ Company ”), hereby certify, that, to my knowledge:  

1.      The Annual Report on Form 10-K for the period ended December 31, 2016 (the “ Report ”) of the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and  

2.      The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.  

 

 

 

Date: September 12, 2017

By:

/s/ Erin Gonzalez

 

 

Erin Gonzalez

 

 

Chief Financial Officer 

 

A signed original of this written statement has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.