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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report:
May 17, 2024
Exact Name of Registrant Commission I.R.S. Employer
as Specified in Its Charter File Number Identification No.
Hawaiian Electric Industries, Inc. 1-8503 99-0208097
Hawaiian Electric Company, Inc. 1-4955 99-0040500
State of
Hawaii
(State or other jurisdiction of incorporation)
1001 Bishop Street, Suite 2900
,
Honolulu
,
Hawaii
96813
- Hawaiian Electric Industries, Inc. (HEI)
1099 Alakea Street, Suite 2200
,
Honolulu
,
Hawaii
96813
- Hawaiian Electric Company, Inc. (Hawaiian Electric)
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
(
808
)
543-5662
- HEI
(
808
)
543-7771
- Hawaiian Electric
Not applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Securities registered pursuant to 12(b) of the Act:
Registrant Title of each class Trading Symbol(s) Name of each exchange
on which registered
Hawaiian Electric Common Stock, Without Par Value HE New York Stock Exchange
Industries, Inc.
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 ((s)230.405 of this chapter)
or Rule12b-2 of the Securities Act of 1934 ((s)240.12b-2 of this chapter).
Emerging growth company
Hawaiian Electric Industries, Inc. Hawaiian Electric Company, Inc.
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.
Hawaiian Electric Industries, Inc. Hawaiian Electric Company, Inc.
-------------------------------------------------------------------------------
Item 1.01. Entry into a Material Definitive Agreement.
As described in more detail below, on May 17, 2024, Hawaiian Electric Company,
Inc. (Hawaiian Electric), through a special-purpose subsidiary, entered into
an asset-based lending facility (ABL Facility) credit agreement (ABL Credit
Facility Agreement) with several banks, which, subject to the limitations and
conditions set forth in such agreement, including approval by the Public
Utilities Commission of the State of Hawaii (PUC), allows borrowings of up to
$250 million on a revolving basis using certain accounts receivable as
collateral.
Under the arrangement, Hawaiian Electric entered into ABL Credit Facility
Agreement through HE AR BRWR LLC (the Borrower), an indirect, wholly owned
subsidiary of Hawaiian Electric, with Barclays Bank PLC (Barclays) as
Administrative Agent, Funding Agent, and Collateral Agent, Wells Fargo Bank,
National Association (Wells Fargo) as Co-Collateral Agent, and each of
Barclays, Wells Fargo and First Citizens Bank & Trust Company (collectively,
the Lenders). Pursuant to the ABL Credit Facility Agreement, the Lenders
thereunder agreed to extend credit to the Borrower in the form of two
asset-based revolving credit sub-facilities with an aggregate principal amount
of $250 million.
In connection with the ABL Credit Facility Agreement, Hawaiian Electric, Maui
Electric Company, Limited, and Hawaii Electric Light Company, Inc.,
(individually and collectively, the Originators) entered into a purchase and
contribution agreement, dated May 17, 2024, with HE AR INTER LLC (Intermediate
SPV), a wholly owned direct subsidiary of Hawaiian Electric and direct parent
of the Borrower, and the Intermediate SPV entered into a purchase and
contribution agreement, dated May 17, 2024, with the Borrower, (collectively,
the Purchase Agreements). The Originators, under the terms of the Purchase
Agreements, will sell substantially all of their accounts receivable from the
sale of electricity to their electric utility customers and certain related
rights (together, the Receivables) to the Intermediate SPV, which in turn will
sell the Receivables to the Borrower. Hawaiian Electric will service the
Receivables that are sold under the Purchase Agreements. Under the ABL Credit
Facility Agreement, the Borrower may obtain loans secured by the Receivables
from the Lenders. In effect, draws from the ABL Facility will provide Hawaiian
Electric with access to cash advances prior to collections of the Receivables.
Additionally, in connection with the ABL Credit Facility Agreement, the
Borrower has granted to Barclays, as collateral agent for the Lenders, a first
priority security interest in the Receivables, any related collections and
substantially all of the Borrower's other assets, and Intermediate SPV has
granted to Barclays, as collateral agent for the Lenders, a first priority
security interest in its membership interest in the Borrower and in the
deposit accounts into which the proceeds of the Receivables are paid.
The aggregate amount of loans permitted to be made to the Borrower under the
ABL Credit Facility Agreement may not exceed a borrowing base consisting of
the lesser of: (i) the aggregate amount of commitments or (ii) the sum of
specified percentages of eligible residential or non-residential Receivables,
minus certain availability reserves.
The Borrower will be able to designate each loan under the ABL Credit Facility
Agreement as a short-term or long-term loan. Proceeds from short-term loans
made under the ABL Credit Facility Agreement and any collections on
Receivables not used to service any debt or other obligations under the ABL
Credit Facility Agreement would be remitted to Hawaiian Electric to be used
for working capital and other general corporate purposes, and proceeds from
long-term loans made under the ABL Credit Facility Agreement would be remitted
to Hawaiian Electric to be used for capital projects or other purposes for
which Hawaiian Electric is permitted to use long-term borrowings under
applicable law
Under the ABL Credit Facility Agreement, loans will bear interest at a rate
per annum equal to, at the Borrower's option, either (a) adjusted Term Secured
Overnight Financing Rate (SOFR) plus a margin of 2.00% to 3.00% or (b) a base
rate plus a margin of 1.00% to 2.00%, in each case depending on revolving line
utilization, which margins are subject to up to two 0.25% step-downs based
upon achievement of
1
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specified credit ratings by Hawaiian Electric. Additionally, the ABL Credit
Facility Agreement contains certain customary representations and warranties
and affirmative and negative covenants, including, but not limited to,
limitations on indebtedness, liens, fundamental changes, restricted payments,
and a springing minimum fixed charge coverage ratio based on availability. The
ABL Credit Facility Agreement also contains customary events of default, after
which the Lenders may terminate the ABL Credit Facility and accelerate any
outstanding loans, including, among other things, failure to pay when due,
covenant defaults, material inaccuracy of representations and warranties,
certain adverse judgments, a change of control, cross-defaults to other
indebtedness of the Borrower, Intermediate SPV or the Originators and
bankruptcy and insolvency proceedings.
Hawaiian Electric has filed an application with the PUC for approval to (i)
sell accounts receivable, and (ii) establish a long-term credit facility. The
first approval would allow the ABL Credit Facility Agreement to become
effective for 364 days and the second approval would extend the term of the
ABL Credit Facility Agreement from 364 days to three years. The ABL Credit
Facility Agreement has an initial term of 364 days, with an automatic
extension to three years upon receipt of the second PUC approval, with three
separate options to extend one additional year, subject to the consent of the
Lenders.
The ABL Credit Facility Agreement is currently under review by the PUC and
will be terminated if Hawaiian Electric's request for PUC approval is denied.
The foregoing description of the ABL Credit Facility Agreement does not
purport to be a complete description of the ABL Credit Facility Agreement and
is qualified in its entirety by reference to the full text of the ABL Credit
Facility Agreement, and the Purchase Agreements, which are attached as
exhibits hereto and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The disclosures under Item 1.01 of this Current Report on Form 8-K are also
responsive to Item 2.03 of this report and are incorporated herein by
reference.
HEI and Hawaiian Electric intend to continue to use HEI's website,
www.hei.com, as a means of disclosing additional information. Such disclosures
will be included on HEI's website in the Investor Relations section.
Accordingly, investors should routinely monitor such portions of HEI's
website, in addition to following HEI's, Hawaiian Electric's and American
Savings Bank, F.S.B.'s (ASB) press releases, HEI's and Hawaiian Electric's
Securities and Exchange Commission (SEC) filings and HEI's public conference
calls and webcasts. The information on HEI's website is not incorporated by
reference in this document or in HEI's and Hawaiian Electric's SEC filings
unless, and except to the extent, specifically incorporated by reference.
Investors may also wish to refer to the PUC website at hpuc.my.site.com/cdms/s
to review documents filed with and issued by the PUC. No information on the
PUC website is incorporated by reference in this document or in HEI's and
Hawaiian Electric's other SEC filings.
2
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
10.1 ABL Credit Agreement, dated May 17, 2024, among HE AR BRWR LLC, as
Borrower, the Lenders (as defined in the agreement), Barclays Bank
PLC, as Administrative Agent, Funding Agent and Collateral Agent,
Wells Fargo Bank, National Association as Co-Collateral Agent.
10.2 Purchase and Contribution Agreement among Hawaiian Electric Company,
Inc., Maui Electric Company, Limited, and Hawaii Electric Light
Company, Inc, as Originators, Hawaiian Electric Company, Inc.,
as Servicer, and HE AR INTER LLC, as Buyer, dated May 17, 2024.
10.3 Borrower Purchase and Contribution Agreement
among HE AR INTER LLC, as Seller, Hawaiian
Electric Company, Inc., as Servicer, and HE
AR BRWR LLC, as Buyer, dated May 17, 2024.
104 Cover Page Interactive Data File (embedded
within the Inline XBRL document)
3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrants have duly caused this report to be signed on their behalf by the
undersigned thereunto duly authorized. The signature of the undersigned
companies shall be deemed to relate only to matters having reference to such
companies and any subsidiaries thereof.
HAWAIIAN ELECTRIC INDUSTRIES, INC. HAWAIIAN ELECTRIC COMPANY, INC.
(Registrant) (Registrant)
/s/ Scott T. DeGhetto /s/ Paul K. Ito
Scott T. DeGhetto Paul K. Ito
Executive Vice President, Senior Vice President,
Chief Financial Officer and Treasurer Chief Financial Officer and Treasurer
Date: May 23, 2024 Date: May 23, 2024
4
Execution Version
Hawaiian Electric Exhibit 10.1
ABL CREDIT AGREEMENT
dated as of
May 17, 2024,
among
HE AR BRWR LLC,
as the Borrower,
THE LENDERS PARTY HERETO
and
BARCLAYS BANK PLC,
as Administrative Agent, Funding Agent and Collateral Agent
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Collateral Agent
BARCLAYS BANK PLC,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
and
FIRST-CITIZENS BANK & TRUST COMPANY
as Joint Lead Arrangers and Joint Bookrunners
US-DOCS\148017393.28
-------------------------------------------------------------------------------
TABLE OF CONTENTS
SECTION I DEFINITIONS 1
Section 1.1 Defined Terms 1
Section 1.2 Other Definitional Provisions 49
Section 1.3 Classification of Loans and Borrowings 50
Section 1.4 Accounting Terms; GAAP 50
Section 1.5 Rounding 51
Section 1.6 Certifications 51
Section 1.7 Rates 51
SECTION II AMOUNT AND TERMS OF COMMITMENTS 52
Section 2.1 Revolving Credit Commitments 52
Section 2.2 Borrowing Procedures and Settlements 53
Section 2.3 Payments; Reductions of Commitments; Prepayments 58
Section 2.4 Promise to Pay; Notes 62
Section 2.5 Interest Rates: Rates, Payments, and Calculations 62
Section 2.6 Crediting Payments 64
Section 2.7 Designated Account 64
Section 2.8 Maintenance of Loan Account; Statements of Obligations 64
Section 2.9 Fees 64
Section 2.10 SOFR Option 65
Section 2.11 Capital Requirements 68
Section 2.12 Reallocation of Commitments. 70
Section 2.13 [Reserved] 71
Section 2.14 [Reserved] 71
Section 2.15 [Reserved] 71
Section 2.16 Taxes 71
Section 2.17 [Reserved] 75
Section 2.18 Replacement of Lenders 75
Section 2.19 [Reserved] 76
Section 2.20 [Reserved] 76
Section 2.21 Cash Management 76
Section 2.22 Extensions of Revolving Credit Commitments 77
Section 2.23 Increases in Revolving Credit Commitments 79
SECTION III REPRESENTATIONS AND WARRANTIES 80
Section 3.1 No Material Adverse Effect 80
Section 3.2 Existence, Qualification and Power; Compliance with Laws 81
Section 3.3 Authorization; No Contravention 81
Section 3.4 Governmental Authorization 81
Section 3.5 Litigation 81
Section 3.6 Binding Effect 82
Section 3.7 Taxes 82
Section 3.8 ERISA Compliance 82
Section 3.9 Margin Regulations; Investment Company Act 82
Section 3.10 Use of Proceeds 83
Section 3.11 Environmental Matters 83
-i-
US-DOCS\148017393.28
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Section 3.12 Disclosure 83
Section 3.13 Security Documents 83
Section 3.14 Solvency 84
Section 3.15 PATRIOT Act; Sanctions; Anti-Corruption 84
Section 3.16 Accounts 84
Section 3.17 Borrowing Base Calculation 85
Section 3.18 Deposit Accounts 85
Section 3.19 Real Property / Labor Matters 85
SECTION IV CONDITIONS PRECEDENT 85
Section 4.1 Conditions to Closing Date 85
Section 4.2 Conditions to the Effective Date 87
Section 4.3 Conditions to Each Post-Closing Extension of Credit 88
SECTION V AFFIRMATIVE COVENANTS 89
Section 5.1 Financial Statements, Certificates and Other Information 89
Section 5.2 Borrower Purchase Agreement 91
Section 5.3 Payment of Taxes 91
Section 5.4 Preservation of Existence, Etc. 91
Section 5.5 Insurance 92
Section 5.6 Inspection Rights 92
Section 5.7 Notices 92
Section 5.8 Additional Collateral 93
Section 5.9 Use of Proceeds 93
Section 5.10 Further Assurances; Post-Closing Obligations 93
Section 5.11 Tax Status 94
Section 5.12 Compliance with Laws. 94
Section 5.13 Books and Records 94
Section 5.14 Separate Existence 94
SECTION VI NEGATIVE COVENANTS 97
Section 6.1 Financial Covenant 97
Section 6.2 Limitation on Indebtedness 97
Section 6.3 Sales, Liens, etc. 98
Section 6.4 Limitation on Fundamental Changes 99
Section 6.5 Certain Agreements 99
Section 6.6 Limitation on Restricted Payments 99
Section 6.7 Limitation on Investments 100
Section 6.8 Limitation on Transactions with Affiliates 100
Section 6.9 Change in Payment Instructions to Account Debtors 100
Section 6.10 Change in Business 101
SECTION VII EVENTS OF DEFAULT 101
Section 7.1 Events of Default 101
-ii-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
SECTION VIII THE AGENTS 104
Section 8.1 Appointment 104
Section 8.2 Delegation of Duties 105
Section 8.3 Exculpatory Provisions 105
Section 8.4 Reliance by Agents 105
Section 8.5 Notice of Default or Event of Default 106
Section 8.6 Non-Reliance on Agent and Other Lenders 106
Section 8.7 Indemnification 107
Section 8.8 Each Agent in Its Individual Capacity 107
Section 8.9 Successor Agent 108
Section 8.10 Erroneous Payment 108
Section 8.11 Withholding Tax 110
Section 8.12 Certain ERISA Matters. 110
SECTION IX MISCELLANEOUS 111
Section 9.1 Notices 111
Section 9.2 Waivers; Amendments 114
Section 9.3 Expenses; Indemnity; Damage Waiver 116
Section 9.4 Successors and Assigns 118
Section 9.5 Survival 123
Section 9.6 Counterparts; Integration; Effectiveness 123
Section 9.7 Severability 124
Section 9.8 Right of Setoff 124
Section 9.9 Governing Law; Jurisdiction; Consent to Service of Process 124
Section 9.10 WAIVER OF JURY TRIAL 125
Section 9.11 Headings 125
Section 9.12 Confidentiality 125
Section 9.13 PATRIOT Act 126
Section 9.14 Release of Liens; Secured Parties 126
Section 9.15 Payments Set Aside 127
Section 9.16 No Fiduciary Duty 127
Section 9.17 Interest Rate Limitation 128
Section 9.18 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 128
Section 9.19 Acknowledgement Regarding Any Supported QFCs 129
-iii-
US-DOCS\148017393.28
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SCHEDULES
:
2.1 Lenders
A-1 Funding Agent
'
s Account
EXHIBITS
:
A-1 Form of Borrower Collateral Agreement
A-2 Form of Intermediate Collateral Agreement
A-3 Form of Intermediate Pledge Agreement
B Form of Compliance Certificate
C Form of Assignment and Assumption
D Form of SOFR Notice
E Form of Revolving Credit Note
F-1 - F-4 Forms of U.S. Tax Compliance Certificates
G Form of Borrowing Request
H Form of Solvency Certificate
I Form of Borrowing Base Certificate
-iv-
US-DOCS\148017393.28
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ABL CREDIT AGREEMENT
ABL CREDIT AGREEMENT (this "
Agreement
"), dated as of May 17, 2024 (the "
Closing Date
"), among HE AR BRWR LLC, a Delaware limited liability company (the "
Borrower
"), the several banks and other financial institutions from time to time
parties to this Agreement as Lenders, BARCLAYS BANK PLC ("
Barclays
"), as administrative agent (in such capacity, together with its successors
and permitted assigns, the "
Administrative Agent
"), funding agent (in such capacity, together with its successors and
permitted assigns, the "
Funding Agent
") and as collateral agent (in such capacity, together with its successors and
permitted assigns, the "
Collateral Agent
"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as co-collateral agent (in
such capacity, together with its successors and permitted assigns, the "
Co-Collateral Agent
").
PRELIMINARY STATEMENTS
WHEREAS, (a) the Borrower is a bankruptcy remote special purpose vehicle that
is a wholly-owned direct subsidiary of HE AR INTER LLC, a Delaware limited
liability company ("
Intermediate SPV
"), (b) Intermediate SPV is a bankruptcy remote special purpose vehicle that
is a wholly-owned direct subsidiary of Hawaiian Electric Company, Inc., a
Hawaiian corporation (the "
Company
"), and (c) the Company is a wholly-owned direct subsidiary of Hawaiian
Electric Industries, Inc., a Hawaiian corporation ("
HEI
");
WHEREAS, (a) Intermediate SPV, and (b) each of (i) the Company, (ii) Maui
Electric Company, Limited, a Hawaiian corporation, and (iii) Hawaii Electric
Light Company, Inc., a Hawaiian corporation (in such capacity, each, an "
Originator
" and, collectively, the "
Originators
") have entered into that certain Purchase and Contribution Agreement, dated
on or around the date hereof (the "
Intermediate Purchase Agreement
"), pursuant to which, among other things, Intermediate SPV is required to
purchase from the Originators, from time to time, accounts receivable and
related rights;
WHEREAS, (a) the Borrower, (b) the Company, as servicer (in such capacity, the "
Servicer
"), and (c) Intermediate SPV have entered into that certain Purchase and
Contribution Agreement, dated on or around the date hereof (the "
Borrower Purchase Agreement
" and together with the Intermediate Purchase Agreement, the "
Purchase Agreements
"), pursuant to which, among other things, the Borrower is required to
purchase from Intermediate SPV certain accounts receivable and related rights
acquired under the Intermediate Purchase Agreement;
WHEREAS, in connection with the foregoing, the Borrower has requested that the
Lenders extend credit in the form of two asset-based revolving credit
sub-facilities established hereunder with aggregate commitments of
$250,000,000; and
WHEREAS, the Lenders are willing to make available to the Borrower Revolving
Credit Loans upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
SECTION I DEFINITIONS
Section 1.1
Defined Terms
As used in this Agreement, the terms listed in this
Section 1.1
shall have the respective meanings set forth in this
Section 1.1
.
US-DOCS\148017393.28
-------------------------------------------------------------------------------
"
Account Debtor
": each Person who is obligated on an Account.
"
Accounts
": all "Receivables" (as defined in the Borrower Purchase Agreement) purchased
by the Borrower pursuant to the Borrower Purchase Agreement.
"
Additional Lender
": at any time, any bank, other financial institution or institutional
investor that, in any case, is not an existing Lender and that agrees to
provide any portion of any Incremental Loan in accordance with
Section 2.23
;
provided
that each Additional Lender (other than any Person that is a Lender, an
Affiliate or branch of a Lender or an Approved Fund of a Lender at such time)
shall be subject to the approval of (a) the Administrative Agent (such
approval not to be unreasonably withheld, conditioned or delayed) and (b) the
Borrower, in the case of the foregoing
clauses (a)
and
(b)
, to the extent any such consent would be required from the Administrative
Agent under
Section 9.4(b)(i)(B)
or the Borrower under
Section 9.4(b)(i)(A)
for an assignment of Loans or Revolving Credit Commitments to such Additional
Lender.
"
Adjustment Date
": as defined in
clause (B)
of the definition of "Applicable Margin."
"
Administrative Agent
": as defined in the preamble hereto.
"
Administrative Agent Fee Letter
": the Second Amended and Restated Fee Letter, dated as of May 17, 2024,
between the Company and the Administrative Agent.
"
Administrative Questionnaire
": an administrative questionnaire in a form supplied by the Administrative
Agent.
"
Affected Financial Institution
": (a) any EEA Financial Institution or (b) any UK Financial Institution
.
"
Affected Lender
": as defined in
Section 2.11(b)
.
"
Affected Tranche
": as defined in
Section 2.1(d)
.
"
Affiliate
": with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
"
Agent
": any of the Administrative Agent, the Collateral Agent, the Funding Agent or
the Co-Collateral Agent. "Agents" shall be the collective reference to all
Agents.
"
Agent Indemnitee
": as defined in
Section 8.7
.
"
Agent-Related Persons
": each Agent, together with its Related Parties.
"
Aggregate Borrowing Base
": the sum, without duplication, of the Non-Residential Borrowing Base and the
Residential Borrowing Base.
"
Aggregate Excess Availability
": as of any date of determination, the amount by which (a) the Aggregate Line
Cap (without giving effect to any increase thereof during an Extraordinary
Advance Period) as of such date exceeds (b) the Total Revolving Credit
Exposure.
"
Aggregate Exposure
": with respect to any Lender, as of any date of determination, the aggregate
principal amount of all Revolving Credit Loans of such Lender as of such date.
-2-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
"
Aggregate Exposure Percentage
": with respect to any Lender as of any date of determination, the ratio
(expressed as a percentage) of such Lender's Aggregate Exposure (including its
share of unfunded Extraordinary Advances) as of such date to the Aggregate
Exposure of all Lenders as of such date.
"
Aggregate Line Cap
": at any time, the lesser of (i) 100% (or, during an Extraordinary Advance
Period, 105%) of the Aggregate Borrowing Base at such time and (ii) the Total
Revolving Credit Commitments in effect at such time.
"
Agreement
": as defined in the preamble hereto.
"
Anti-Corruption Laws
": the United States Foreign Corrupt Practices Act of 1977; the UK Bribery Act
2010; and all laws, rules, and regulations of any jurisdiction applicable to
the Company or its Subsidiaries from time to time concerning or relating to
bribery or corruption.
"
Anti-Money Laundering Laws
": the applicable Laws in any jurisdiction in which the Borrower is located or
is doing business that relates to money laundering, any predicate crime to
money laundering, or any financial record keeping and reporting requirements
related thereto.
"
Applicable Accounting Principles
": for any period, the accounting principles applied as provided in
Section 1.4
.
"
Applicable Margin
": (A) from and after the Effective Date until the last day of the first full
Fiscal Quarter ended after the Effective Date, (i) 1.50%
per annum
, in the case of Base Rate Loans, and (ii) 2.50%
per annum
, in the case of SOFR Loans, and (B) as of the first day of each Fiscal
Quarter thereafter (each, an "
Adjustment Date
"), the Applicable Margins for such Type of Loans shall be determined from the
pricing grid below based upon the Historical Excess Availability for the most
recent Fiscal Quarter ended immediately prior to the relevant Adjustment Date,
as calculated by the Funding Agent.
Pricing Level Historical Excess Availability as Applicable Margin for SOFR Loans Applicable Margin
a percentage of the Aggregate Line Cap for Base Rate Loans
I Greater than or equal to 80% 2.00% 1.00%
II Less than 80%, but greater than or equal to 60% 2.25% 1.25%
III Less than 60%, but greater than or equal to 40% 2.50% 1.50%
IV Less than 40%, but greater than or equal to 20% 2.75% 1.75%
V Less than 20% 3.00% 2.00%
provided
,
however
,
that (i) if Ratings Condition A is met, all Pricing Levels of the Applicable
Margin in the above table shall be reduced by 0.25%; and (ii) if Ratings
Condition B is met, all Pricing Levels of the Applicable Margin in the above
table shall be reduced by 0.50% (it being acknowledged and agreed that the
cumulative amount of all such reductions pursuant to this proviso shall not
exceed 0.50%).
Notwithstanding anything to the contrary contained above in this definition,
from and after any Extension, with respect to any Extended Revolving Credit
Commitments, the Applicable Margins specified for such Extended Revolving
Credit Commitments shall be those specified in the applicable definitive
documentation thereof.
-3-
US-DOCS\148017393.28
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"
Applicable SOFR Adjustment
": for any calculation with respect to a SOFR Loan, 0.10%
per annum
.
"
Application Event
": the occurrence of (a) a failure by the Borrower to repay all of the
Obligations in full on the Maturity Date, or (b) an Event of Default and the
election by the Administrative Agent or the Required Lenders to require that
payments and proceeds of Collateral be applied pursuant to
Section 2.3(b)(iii)
of this Agreement.
"
Approved Bank
": as defined in
clause (c)
of the definition of "Cash and Cash Equivalents."
"
Approved Fund
": any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in revolving bank loans and similar
extensions of credit as its primary activity and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender;
provided
that in no event shall a Disqualified Lender be an Approved Fund.
"
Arrangers
": Barclays and each other Person listed as a Joint Lead Arranger and Joint
Bookrunner on the cover page of this Agreement, in their respective capacities
as exclusive joint lead arrangers and joint bookrunners.
"
Assignment and Assumption
": an assignment and assumption entered into by a Lender and an assignee (with
the consent of each party whose consent is required by
Section 9.4
), and accepted by the Administrative Agent, in the form of
Exhibit C
or any other form approved by the Administrative Agent and the Borrower.
"
Attributable Indebtedness
": on any date, in respect of any Capitalized Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP.
"
Availability Period
": (a) with respect to the Original Revolving Credit Facility, the period from
and including the Effective Date to but excluding the earlier of (i) the
Maturity Date and (ii) the date of termination of the Revolving Credit
Commitments, and (b) with respect to Extended Revolving Credit Commitments,
the period from and including the effective date of the Extension Amendment
applicable to such Extended Revolving Credit Commitments but excluding the
earlier of (i) the final maturity date thereof as specified in the applicable
Extension Offer accepted by the respective Lender or Lenders and (ii) the date
of termination of such Extended Revolving Credit Commitments.
"
Available Tenor
": as of any date of determination and with respect to the then-current
Benchmark, as applicable, if such Benchmark is a term rate, any tenor for such
Benchmark (or component thereof) that is or may be used for determining the
length of an interest period pursuant to this Agreement, as of such date and
not including, for the avoidance of doubt, any tenor for such Benchmark that
is then-removed from the definition of "Interest Period" pursuant to
Section 2.10(d)(iii)(D)
.
"
Average Facility Balance
": the amount obtained by dividing the Aggregate Exposure for all Lenders
under the applicable Revolving Credit Facility at the end of each day for the
period in question by the number of days in such period.
"
Bail-In Action
": the exercise of any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected Financial
Institution.
-4-
US-DOCS\148017393.28
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"
Bail-In Legislation
": (a) with respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law, regulation rule or requirement for such
EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and any other
law, regulation or rule applicable in the United Kingdom relating to the
resolution of unsound or failing banks, investment firms or other financial
institutions or their affiliates (other than through liquidation,
administration or other insolvency proceedings).
"
Bankruptcy Code
": Title 11 of the United States Code (11 U.S.C. (s) 101,
et seq
.), as amended, modified or supplement from time to time.
"
Bankruptcy Event
": with respect to any Person, such Person becomes the subject of a bankruptcy
or insolvency proceeding or a corporate statutory arrangement proceeding
having similar effect, is subject to a forced liquidation, or has had a
receiver, interim receiver, receiver and manager, conservator, trustee,
administrator, custodian, monitor, assignee for the benefit of creditors or
similar Person charged with the reorganization or liquidation of its business
appointed for it or any substantial part of its assets, or, in the good faith
determination of the Administrative Agent, has taken any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any such
proceeding or appointment;
provided
,
that a Bankruptcy Event shall not result solely by virtue of any ownership
interest, or the acquisition of any ownership interest, in such Person by a
Governmental Authority or instrumentality thereof, so long as such ownership
interest does not result in or provide such Person with immunity from the
jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or
disaffirm any contracts or agreements made by such Person.
"
Barclays
": as defined in the preamble hereto.
"
Base Rate
": for any day, the greatest of (a) the Floor, (b) the Federal Funds Rate in
effect on such day
plus
1/2%, and (c) Term SOFR for a one month tenor in effect on such day,
plus
1%,
provided
that this
clause (c)
shall not be applicable during any period in which Term SOFR is unavailable or
unascertainable. If the Funding Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Rate for any reason, the Base Rate shall be
determined without regard to
clause (b)
above until the circumstances giving rise to such inability no longer exist.
"
Base Rate Loan
": a Loan that bears interest based on the Base Rate.
"
Base Rate Term SOFR Determination Day
": as defined in the definition of "Term SOFR."
"
Benchmark
": initially, the Term SOFR Reference Rate;
provided
that if a Benchmark Transition Event has occurred with respect to the Term
SOFR Reference Rate or the then-current Benchmark, then "Benchmark" means the
applicable Benchmark Replacement to the extent that such Benchmark Replacement
has replaced such prior benchmark rate pursuant to
Section 2.10(d)(iii)(A)
.
"
Benchmark Replacement
": with respect to any Benchmark Transition Event, the sum of: (i) the
alternate benchmark rate that has been selected by the Funding Agent (in
consultation with the Administrative Agent) and the Borrower giving due
consideration to (A) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (B) any evolving or then-prevailing market convention for
determining a benchmark rate as a replacement to the then-current Benchmark
for Dollar-denominated syndicated credit facilities and (ii) the related
Benchmark Replacement Adjustment;
-5-
US-DOCS\148017393.28
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provided
that if the Benchmark Replacement as so determined would be less than the
Floor, the Benchmark Replacement will be deemed to be the Floor for the
purposes of this Agreement and the other Loan Documents.
"
Benchmark Replacement Adjustment
": with respect to any replacement of the then-current Benchmark with an
Unadjusted Benchmark Replacement, the spread adjustment, or method for
calculating or determining such spread adjustment, (which may be a positive or
negative value or zero) that has been selected by the Funding Agent (in
consultation with the Administrative Agent) and the Borrower giving due
consideration to (a) any selection or recommendation of a spread adjustment,
or method for calculating or determining such spread adjustment, for the
replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement by the Relevant Governmental Body or (b) any evolving or
then-prevailing market convention for determining a spread adjustment, or
method for calculating or determining such spread adjustment, for the
replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement for Dollar-denominated syndicated credit facilities.
"
Benchmark Replacement Date
": the earliest to occur of the following events with respect to the
then-current Benchmark:
(a) in the case of
clause (a)
or
(b)
of the definition of "Benchmark Transition Event", the later of (i) the date
of the public statement or publication of information referenced therein and
(ii) the date on which the administrator of such Benchmark (or the published
component used in the calculation thereof) permanently or indefinitely ceases
to provide such Benchmark (or such component thereof) or, if such Benchmark is
a term rate, all Available Tenors of such Benchmark (or such component
thereof); or
(b) in the case of
clause (c)
of the definition of "Benchmark Transition Event", the first date on which
such Benchmark (or the published component used in the calculation thereof)
has been or, if such Benchmark is a term rate, all Available Tenors of such
Benchmark (or such component thereof) have been determined and announced by
the regulatory supervisor for the administrator of such Benchmark (or such
component thereof) to be non-representative;
provided
that such non-representativeness will be determined by reference to the most
recent statement or publication referenced in such
clause (c)
and even if such Benchmark (or such component thereof) or, if such Benchmark
is a term rate, any Available Tenor of such Benchmark (or such component
thereof), continues to be provided on such date.
For the avoidance of doubt, if such Benchmark is a term rate, the "Benchmark
Replacement Date" will be deemed to have occurred in the case of
clause (a)
or
(b)
with respect to any Benchmark upon the occurrence of the applicable event or
events set forth therein with respect to all then-current Available Tenors of
such Benchmark (or the published component used in the calculation thereof).
"
Benchmark Transition Event
": the occurrence of one or more of the following events with respect to the
then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the
administrator of such Benchmark (or the published component used in the
calculation thereof) announcing that such administrator has ceased or will
cease to provide such Benchmark (or such component thereof) or, if such
Benchmark is a term rate, all Available Tenors of such Benchmark (or such
component thereof), permanently or indefinitely;
provided
that, at the time of such statement or publication, there is no successor
administrator that will continue
-6-
US-DOCS\148017393.28
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to provide such Benchmark (or such component thereof) or, if such Benchmark is
a term rate, any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component
used in the calculation thereof), the Federal Reserve Board, the Federal
Reserve Bank of New York, an insolvency official with jurisdiction over the
administrator for such Benchmark (or such component), a resolution authority
with jurisdiction over the administrator for such Benchmark (or such
component) or a court or an entity with similar insolvency or resolution
authority over the administrator for such Benchmark (or such component), which
states that the administrator of such Benchmark (or such component) has ceased
or will cease to provide such Benchmark (or such component thereof) or, if
such Benchmark is a term rate, all Available Tenors of such Benchmark (or such
component thereof) permanently or indefinitely;
provided
that, at the time of such statement or publication, there is no successor
administrator that will continue to provide such Benchmark (or such component
thereof) or, if such Benchmark is a term rate, any Available Tenor of such
Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the published component
used in the calculation thereof) announcing that such Benchmark (or such
component thereof) or, if such Benchmark is a term rate, all Available Tenors
of such Benchmark (or such component thereof) are not, or as of a specified
future date will not be, representative.
For the avoidance of doubt, if such Benchmark is a term rate, a "Benchmark
Transition Event" will be deemed to have occurred with respect to any
Benchmark if a public statement or publication of information set forth above
has occurred with respect to each then-current Available Tenor of such
Benchmark (or the published component used in the calculation thereof).
"
Benchmark Transition Start Date
": in the case of a Benchmark Transition Event, the earlier of (a) the
applicable Benchmark Replacement Date and (b) if such Benchmark Transition
Event is a public statement or publication of information of a prospective
event, the 90
th
day prior to the expected date of such event as of such public statement or
publication of information (or if the expected date of such prospective event
is fewer than 90 days after such statement or publication, the date of such
statement or publication).
"
Benchmark Unavailability Period
": the period (if any) (a) beginning at the time that a Benchmark Replacement
Date has occurred if, at such time, no Benchmark Replacement has replaced the
then-current Benchmark for all purposes hereunder and under any Loan Document
in accordance with
Section 2.10(d)(iii)
and (b) ending at the time that a Benchmark Replacement has replaced the
then-current Benchmark for all purposes hereunder and under any Loan Document
in accordance with
Section 2.10(d)(iii)
.
"
Beneficial Ownership Certification
": a certification regarding beneficial ownership as required by the
Beneficial Ownership Regulation.
"
Beneficial Ownership Regulation
": 31 C.F.R. (s) 1010.230.
"
Benefit Plan
": any of (a) an "employee benefit plan" (as defined in ERISA) that is subject
to Title I of ERISA, (b) a "plan" as defined in and subject to Section 4975 of
the Code or (c) any Person whose
-7-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
assets include (for purposes of ERISA Section 3(42) or otherwise for purposes
of Title I of ERISA or Section 4975 of the Code) the assets of any such
"employee benefit plan" or "plan".
"
Billed Eligible Non-Residential Accounts
": Eligible Non-Residential Accounts with respect to which an invoice or
billing statement has been issued or sent to the applicable Account Debtor.
"
Billed Eligible Residential Accounts
": Eligible Residential Accounts with respect to which an invoice or billing
statement has been issued or sent to the applicable Account Debtor.
"
Board of Directors
": with respect to any Person, (a) in the case of any corporation, the board
of directors of such Person, (b) in the case of any limited liability company,
the board of managers of such person or, if there is none, the Board of
Directors of the managing member of such Person, (c) in the case of any
partnership, the Board of Directors of the general partner of such Person, (d)
in any other case, the functional equivalent of the foregoing and (e) in the
case of any Person organized under the laws of a jurisdiction other than the
United States, any state thereof or the District of Columbia, the foreign
equivalent of any of the foregoing.
"
Borrower
": as defined in the preamble hereto.
"
Borrower Accounts
": the deposit accounts of the Borrower listed on
Schedule V
of the Borrower Purchase Agreement, which constitute all deposit accounts into
which payments with respect to any Pool Receivables shall be made by
Intermediate SPV.
"
Borrower Collateral Agreement
": that certain ABL Collateral Agreement, dated as of the date hereof, among
the Borrower and the Collateral Agent, substantially in the form of
Exhibit A-1
.
"
Borrower Materials
": as defined in
Section 9.1(d)
.
"
Borrower Purchase Agreement
": as defined in the recitals hereto.
"
Borrowing
": (a) Loans of the same Type, made, converted or continued on the same date
and, in the case of SOFR Loans, as to which a single Interest Period is in
effect or (b) Extraordinary Advances.
"
Borrowing Base
": the Aggregate Borrowing Base, the Non-Residential Borrowing Base and/or the
Residential Borrowing Base, as context may require.
"
Borrowing Base Certificate
": as defined in
Section 5.1(c)
.
"
Borrowing Request
": a request by the Borrower for a Borrowing substantially in the form of
Exhibit G
or any other form acceptable to the Funding Agent and the Borrower.
"
Business Day
": any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed.
"
Capital Expenditures
": for any period, the aggregate amount of all expenditures of the Company and
its Subsidiaries during such period determined on a consolidated basis that,
in accordance with GAAP, are or should be included as additions to property,
plant and equipment in the consolidated statement of cash flows of the Company
and its Subsidiaries. Notwithstanding the foregoing, Capital Expenditures
shall not include:
-8-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
(a) expenditures made with tenant allowances (or similar real estate
incentive programs) received by the Company or any of its Subsidiaries from
landlords in the ordinary course of business and subsequently capitalized;
(b) expenditures financed with the proceeds of a contemporaneous issuance
of Capital Stock of the Company or any direct or indirect parent thereof, or a
contemporaneous capital contribution to the Company;
(c) expenditures that are accounted for as capital expenditures by the
Company or any of its Subsidiaries and that actually are paid for by a Person
other than the Company or any of its Subsidiaries to the extent neither the
Company nor any of its Subsidiaries has provided or is required to provide or
incur, directly or indirectly, any consideration or obligation to such Person
or any other Person (whether before, during or after such period);
(d) any expenditures which are contractually required to be, and are,
advanced or reimbursed to the Company or any of its Subsidiaries in cash by a
third party (including landlords) during such period of calculation;
(e) the book value of any asset owned by the Company or any of its
Subsidiaries prior to or during such period to the extent that such book value
is included as a capital expenditure during such period as a result of such
Person reusing or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period;
provided
that (i) any expenditure necessary in order to permit such asset to be reused
shall be included as a capital expenditure during the period in which such
expenditure actually is made and (ii) such book value shall have been included
in capital expenditures when such asset was originally acquired;
(f) that portion of interest on Indebtedness incurred for capital
expenditures which is paid in cash and capitalized in accordance with GAAP;
(g) expenditures made in connection with the replacement, substitution,
restoration, upgrade, improvement, maintenance, development or repair of
assets to the extent financed with (x) insurance or settlement proceeds paid
on account of the loss of or damage to the assets being replaced, substituted,
restored, upgraded, developed or repaired or (y) awards of compensation
arising from the taking by eminent domain or condemnation of the assets being
replaced;
(h) in the event that any equipment is purchased substantially
simultaneously with the trade-in of existing equipment, the gross amount of
the credit granted by the seller of such equipment for the equipment being
traded in at such time;
(i) expenditures relating to the construction, acquisition, replacement,
reconstruction, development, refurbishment, renovation or improvement of any
property which has been transferred to a Person other than the Company or any
of its Subsidiaries during the same twelve (12)-month period in which such
expenditures were made pursuant to a sale and leaseback transaction to the
extent of the cash proceeds received by the Company or any of its Subsidiaries
pursuant to such sale and leaseback transaction that are not required to
prepay funded Indebtedness; or
(j) the purchase of property, plant or equipment made within twelve (12)
months of any Disposition to the extent purchased with the proceeds of such
Disposition.
-9-
US-DOCS\148017393.28
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"
Capital Stock
": any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all
warrants, rights or options to purchase any of the foregoing, including
convertible securities but excluding debt securities convertible or
exchangeable into any of the foregoing.
"
Capitalized Leases
": all leases that have been or are required to be, in accordance with GAAP,
recorded as capitalized leases;
provided
that for all purposes hereunder the amount of obligations under any
Capitalized Lease shall be the amount thereof accounted for as a liability in
accordance with GAAP;
provided
further
, that no power purchase agreement with an independent power producer or a
power producer which is not an Affiliate of the Borrower shall constitute a
Capitalized Lease.
"
Cash and Cash Equivalents
":
(a) U.S. Dollars or any other readily tradable currency to the extent
utilized in connection with the conduct of the business of the Borrower;
(b) obligations issued or directly and fully guaranteed or insured by the
government or any agency or instrumentality of the United States having
average maturities of not more than 24 months from the date of acquisition
thereof;
provided
that the full faith and credit of the United States is pledged in support
thereof;
(c) time deposits or eurodollar time deposits with, certificates of
deposit, bankers' acceptances or overnight bank deposits of, or letters of
credit issued by, any commercial bank that (i) is a Lender hereunder or (ii)
(A) is organized under the Laws of the United States, any state thereof, the
District of Columbia or any member nation of the Organization for Economic
Cooperation and Development or is the principal banking Subsidiary of a bank
holding company organized under the Laws of the United States, any state
thereof, the District of Columbia or any member nation of the Organization for
Economic Cooperation and Development and is a member of the Federal Reserve
System, and (B) has combined capital and surplus of at least $250,000,000 or
$100,000,000 in the case of any non-U.S. bank (any such bank in the foregoing
clauses (i)
or
(ii)
being an "
Approved Bank
"), in each case with maturities not exceeding 24 months from the date of
acquisition thereof;
(d) commercial paper and variable or fixed rate notes issued by an Approved
Bank (or by the parent company thereof) or any variable or fixed rate note
issued by, or guaranteed by, a corporation (other than structured investment
vehicles and other than corporations used in structured financing
transactions) rated A-2 (or the equivalent thereof) or better by S&P or P-2
(or the equivalent thereof) or better by Moody's, in each case with average
maturities of not more than 24 months from the date of acquisition thereof;
(e) marketable short-term money market and similar funds having a rating of
at least P-2 or A-2 from either Moody's or S&P, respectively (or, if at any
time neither Moody's nor S&P shall be rating such obligations, an equivalent
rating from another nationally recognized statistical rating agency selected
by the Borrower);
(f) repurchase obligations for underlying securities of the types described
in
clauses (b)
,
(c)
and
(e)
above entered into with any Approved Bank;
(g) securities with average maturities of 24 months or less from the date
of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by
-10-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
any foreign government having an investment grade rating from either S&P or
Moody's (or the equivalent thereof);
(h) Investments (other than in structured investment vehicles and
structured financing transactions) with average maturities of 12 months or
less from the date of acquisition in money market funds rated AAA- (or the
equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or
better by Moody's;
(i) securities with maturities of 12 months or less from the date of
acquisition backed by standby letters of credit issued by any Approved Bank;
(j) instruments analogous to those referred to in
clauses (a)
through
(i)
above denominated in Euros or any other foreign currency comparable in credit
quality and tenor to those referred to above and customarily used by
corporations for cash management purposes in any jurisdiction outside the
United States to the extent reasonably required in connection with any
business conducted by any Subsidiary organized in such jurisdiction;
(k) Investments, classified in accordance with GAAP as Current Assets of
the Borrower, in money market investment programs which are registered under
the Investment Company Act of 1940 or which are administered by financial
institutions having capital of at least $250,000,000, and, in either case, the
portfolios of which are limited such that substantially all of such
Investments are of the character, quality and maturity described in
clauses (a)
through
(i)
above; and
(l) investment funds investing at least 95% of their assets in securities
of the types described in
clauses (a)
through
(k)
above.
Notwithstanding the foregoing, Cash and Cash Equivalents shall include amounts
denominated in currencies other than those set forth in
clauses (a)
and
(j)
above;
provided
that such amounts are converted into any currency listed in
clause (a)
or
(j)
as promptly as practicable and in any event within ten Business Days following
the receipt of such amounts.
"
Cash Management Control Agreement
": a "control agreement" in form and substance reasonably acceptable to the
Collateral Agent, containing terms regarding the treatment of all cash and
other amounts on deposit in the respective deposit account governed by such
Cash Management Control Agreement consistent with the requirements of
Section 2.21
, including those required to be obtained in favor of the Borrower pursuant to
the Borrower Purchase Agreement.
"
Cash Management Obligations
": obligations owed by the Borrower to any Qualified Counterparty in respect
of or in connection with Cash Management Services and designated by such
Qualified Counterparty and the Borrower in writing to the Collateral Agent as
a "Cash Management Obligation."
"
Cash Management Services
": any treasury, depositary, disbursement, lockbox, funds transfer, pooling,
netting, overdraft, cash management and similar services, including any
automated clearing house transfer of funds.
"
Change in Law
": the occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking effect of any Law, rule, regulation or treaty, (b)
any change in any Law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, rule, guideline or
directive (whether or not having the force of law) by any Governmental
Authority;
provided
that, notwithstanding anything
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US-DOCS\148017393.28
-------------------------------------------------------------------------------
herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives thereunder or
issued in connection therewith and (ii) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or
the United States or foreign regulatory authorities, in each case, pursuant to
Basel III, shall in each case be deemed to be a "Change in Law," regardless of
the date enacted, adopted or issued.
"
Change of Control
": shall be deemed to occur if:
(a) HEI shall cease to own, directly or indirectly, 100% of the Capital
Stock of the Company;
(b) the Company shall cease to own, directly, 100% of the Capital Stock of
Intermediate SPV; or
(c) Intermediate SPV shall cease to own, directly, 100% of the Capital
Stock of the Borrower.
"
Class
":
(a) when used with respect to any Lender, refers to whether such Lender is
a Tranche A Lender, a Tranche B Lender or a Lender with Extended Revolving
Credit Commitments of a given series,
(b) when used with respect to Revolving Credit Commitments, refers to
whether such Revolving Credit Commitments are Tranche A Revolving Credit
Commitments, Tranche B Revolving Credit Commitments or Extended Revolving
Credit Commitments of a given series; and
(c) when used with respect to Revolving Credit Loans or Revolving Credit
Borrowing, refers to whether such Revolving Credit Loans, or the Loans
comprising such Revolving Credit Borrowing, are Tranche A Loans, Tranche B
Loans or Revolving Credit Loans under Extended Revolving Credit Commitments of
a given series.
"
Closing Date
": as defined in the recitals hereto.
"
Co-Collateral Agent
": as defined in the preamble hereto.
"
Co-Collateral Agent Fee Letter
": the Fee Letter, dated as of May 17, 2024, between the Company and the
Co-Collateral Agent.
"
Code
": the Internal Revenue Code of 1986, as amended.
"
Collateral
": (a) all Property of the Borrower, now owned or hereafter acquired, upon
which a Lien is created or purported to be created by any Security Document
and shall include the Borrower Accounts, and all Accounts, Related Rights,
Related Security and other assets purchased by the Borrower from Intermediate
SPV pursuant to the Borrower Purchase Agreement, (b) with respect to
Intermediate SPV, the Capital Stock of the Borrower and the Intermediate
Accounts.
"
Collateral Agent
": as defined in the preamble hereto.
"
Collateral Agent Deposit Account
": as defined in
Section 2.21(c)
.
"
Collateral Requirement
": at any time, the requirement that:
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US-DOCS\148017393.28
-------------------------------------------------------------------------------
(a) the Collateral Agent shall have received each Security Document
required to be delivered (i) on the Closing Date, pursuant to
Section 4.1
and (ii) at such time as may be designated therein, pursuant to the Security
Documents or
Section 2.21
,
5.8
or
5.10
, subject, in each case, to the limitations and exceptions of this Agreement,
duly executed by the Borrower (or Intermediate SPV or the Servicer, as
applicable); and
(b) except to the extent otherwise provided hereunder or under any Security
Document, all Obligations shall have been secured by a perfected first-priority
security interest (subject only to First Priority Priming Liens) in favor of
the Collateral Agent for the benefit of the Secured Parties (to the extent
such security interest may be perfected by filing financing statements under
the Uniform Commercial Code, filing with the United States Copyright Office or
the United States Patent and Trademark Office, obtaining a Cash Management
Control Agreement, or delivery of the certificates and instruments
constituting Collateral in suitable form for transfer by delivery or
accompanied by instruments of transfer or assignment duly executed in blank)
in the Collateral (including the Intermediate Accounts, the Capital Stock of
the Borrower, the Borrower Accounts, and all Accounts, Related Rights, Related
Security and other assets purchased by the Borrower from Intermediate SPV
pursuant to the Borrower Purchase Agreement);
provided
,
however
,
that the Liens required to be granted from time to time pursuant to the
Collateral Requirement shall be subject to the exceptions and limitations set
forth in this Agreement and the Security Documents.
The Collateral Agent may grant extensions of time for the perfection of
security interests in particular assets and the delivery of assets (including
extensions beyond the Closing Date for the perfection of security interests in
the Collateral on such date) or any other compliance with the requirements of
this definition where it reasonably determines, in consultation with the
Borrower, that perfection or compliance cannot be accomplished without undue
effort or expense by the time or times at which it would otherwise be required
by this Agreement, the Security Documents or the other Loan Documents.
Notwithstanding anything contained in this Agreement to the contrary, (i) no
mortgage, trust, trust deed, deed to secure debt or hypothec shall be executed
and delivered with respect to any real property, (ii) no actions in any
non-U.S. jurisdiction or required by requirements of Law of any non-U.S.
jurisdiction shall be required in order to create any security interests in
assets located or titled outside of the U.S. or to perfect such security
interests (it being understood that there shall be no security agreements or
pledge agreements governed by requirements of Law of any non-U.S.
jurisdiction), (iii) no actions shall be required to perfect security
interests in motor vehicles and other assets subject to certificates of title
and letter of credit rights (in each case except to the extent a security
interest therein can be perfected by the filing of a UCC financing statement);
and (iv) no actions shall be required to perfect security interests in assets
as to which the Collateral Agent and the Borrower reasonably and mutually
agree that the cost or other consequence of perfecting such a security
interest are excessive in relation to the value afforded thereby.
"
Collection Banks
": (a) Barclays Bank PLC, or (b) one or more financial institutions located in
the United States, selected by the Borrower and reasonably satisfactory to the
Collateral Agent (it being understood and agreed that each of Bank of Hawaii,
Bank of America, N.A., First Hawaiian Bank and Central Pacific Bank are
satisfactory to the Collateral Agent).
"
Collections
": as defined in the Purchase Agreements.
"
Commitment Fee
": fees payable on the undrawn portion of the Revolving Credit Commitments
pursuant to
Section 2.9(a)
.
-13-
US-DOCS\148017393.28
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"
Commitment Fee Rate
": (A) from and after the Effective Date until the first Adjustment Date, 0.500%
per annum
and (B) on each Adjustment Date thereafter, the Commitment Fee Rate shall be
determined by reference to the pricing grid below based upon the Historical
Average Utilization for the most recent Fiscal Quarter ended immediately prior
to the relevant Adjustment Date, as calculated by the Funding Agent.
Historical Average Utilization Commitment Fee%
(% of commitments)
< 40% 0.500%
e 40% 0.250%
Notwithstanding anything to the contrary contained above in this definition,
from and after any Extension, with respect to any Extended Revolving Credit
Commitments, the Commitment Fee specified for such Extended Revolving Credit
Commitments shall be those specified in the applicable definitive
documentation thereof.
"
Commodity Exchange Act
": the Commodity Exchange Act (7 U.S.C. (s) 1,
et seq
.), as amended from time to time, and any successor statute.
"
Company
": as defined in the recitals hereto.
"
Compliance Certificate
": a certificate duly executed by a Responsible Officer of the Borrower,
substantially in the form of
Exhibit B
.
"
Conforming Changes
": with respect to either the use or administration of Term SOFR or the use,
administration, adoption or implementation of any Benchmark Replacement, any
technical, administrative or operational changes (including changes to the
definition of "Base Rate," the definition of "Business Day," the definition of
"U.S. Government Securities Business Day," the definition of "Interest Period"
or any similar or analogous definition (or the addition of a concept of
"interest period"), timing and frequency of determining rates and making
payments of interest, timing of borrowing requests or prepayment, conversion
or continuation notices, the applicability and length of lookback periods, the
applicability of
Section 2.10(b)(ii)
and other technical, administrative or operational matters) that the Funding
Agent (in consultation with the Administrative Agent) decides may be
appropriate to reflect the adoption and implementation of any such rate or to
permit the use and administration thereof by the Funding Agent in a manner
substantially consistent with market practice (or, if the Funding Agent (in
consultation with the Administrative Agent) decides that adoption of any
portion of such market practice is not administratively feasible or if the
Funding Agent (in consultation with the Administrative Agent) determines that
no market practice for the administration of any such rate exists, in such
other manner of administration as the Funding Agent (in consultation with the
Administrative Agent) decides is reasonably necessary in connection with the
administration of this Agreement and the other Loan Documents)
"
Connection Income Taxes
": Other Connection Taxes that are imposed on or measured by net income
(however denominated) or that are franchise Taxes or branch profits Taxes.
"
Consolidated EBITDA
": with respect to the Company and the Subsidiaries on a consolidated basis
for any period, the Consolidated Net Income of the Company and the
Subsidiaries for such period,
-14-
US-DOCS\148017393.28
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plus
, the sum of, without duplication, in each case, to the extent deducted in or
otherwise reducing Consolidated Net Income for such period:
(a) provision for taxes based on income, profits or capital of the Company
and the Subsidiaries for such period, without duplication, including, without
limitation, state franchise and similar taxes, and foreign withholding taxes
(including penalties and interest related to taxes or arising from tax
examination);
(b) (x) Consolidated Interest Expense of the Company and the Subsidiaries
for such period and (y) all cash dividend payments (excluding items eliminated
in consolidation) on any series of preferred stock of any Subsidiary of the
Company or any Disqualified Capital Stock of the Company and its Subsidiaries;
(c) depreciation, amortization (including amortization of intangibles,
deferred financing fees and actuarial gains and losses related to pensions and
other post-employment benefits, but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash expenses
(excluding any such non-cash charges or expenses to the extent that it
represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of the
Company and the Subsidiaries for such period;
(d) any costs or expenses incurred pursuant to any management equity plan
or stock option plan or any other management or employee benefit plan or
agreement or any stock subscription or shareholder agreement, to the extent
that such costs or expenses are funded with cash proceeds contributed to the
capital of the Company or net cash proceeds of an issuance of Capital Stock of
the Company (other than Disqualified Capital Stock);
and
(e) any non-cash losses related to non-operational hedging, including,
without limitation, resulting from hedging transactions for interest rate or
currency exchange risks;
minus
, the sum of, without duplication, in each case, to the extent added back in
or otherwise increasing Consolidated Net Income for such period:
(a) non-cash items increasing such Consolidated Net Income for such period
(excluding the recognition of deferred revenue or any non-cash items which
represent the reversal of any accrual of, or reserve for, anticipated cash
charges in any prior period and any items for which cash was received in any
prior period);
and
(b) any non-cash gains related to non-operational hedging, including,
without limitation, resulting from hedging transactions for interest rate or
currency exchange risks;
in each case, on a consolidated basis and determined in accordance with
Applicable Accounting Principles.
Notwithstanding the preceding, the provision for taxes based on the income or
profits of, the Consolidated Interest Expense of, the depreciation and
amortization and other non-cash expenses or non-cash items of and the
restructuring charges or expenses of, a Subsidiary (other than any Wholly
Owned Subsidiary) of the Company will be added to (or subtracted from, in the
case of non-cash items described in
clause (a)
above) Consolidated Net Income to compute Consolidated EBITDA, (A) in the same
proportion that the Net Income of such Subsidiary was added to compute such
Consolidated Net Income of the Company, and (B) only to the extent that a
corresponding amount of the Net Income of such Subsidiary
-15-
US-DOCS\148017393.28
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would be permitted at the date of determination to be dividended or
distributed to the Company by such Subsidiary without prior governmental
approval (that has not been obtained), and without direct or indirect
restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.
"
Consolidated Fixed Charge Coverage Ratio
": for any period, the ratio of (A)(i) Consolidated EBITDA for the Test Period
ended as of such date or, as applicable, most recently ended prior to such
date,
minus
(ii) the aggregate amount of federal, state, local and foreign income taxes
paid or payable in cash (net of cash refunds received) for the Test Period
ended as of such date or, as applicable, most recently ended prior to such
date,
minus
(iii) Non-Financed Capital Expenditures for the Test Period that were paid in
cash during such Test Period; to (B) Consolidated Fixed Charges for such
period.
"
Consolidated Fixed Charges
": with respect to any Person for any period, the sum, without duplication,
of: (a) Consolidated Interest Expense of the Company or its Subsidiaries
plus
(b) scheduled payments of principal on long-term Indebtedness for borrowed
money of the Company or its Subsidiaries (including (i) principal payments in
respect of Capitalized Leases to the extent allocated to principal, and (ii)
the principal amount of Indebtedness due at the initial specified maturity
thereof, notwithstanding the refinancing of such Indebtedness to a date that
is after the Latest Maturity Date; but excluding payments in respect of any
intercompany debt and any payments in respect of purchase price adjustments
and earnouts) of the Company and its Subsidiaries
plus
(c) solely for purposes of calculating the Consolidated Fixed Charge Coverage
Ratio in respect of the Payment Conditions, all Restricted Payments paid in
cash.
"
Consolidated Interest Expense
": with respect to the Company and its Subsidiaries for any period, total cash
interest expense for such period (net of any cash interest income for such
period) with respect to all outstanding Indebtedness (other than under clause
(e) of the definition thereof), calculated on a consolidated basis in
accordance with GAAP, to the extent such expense was deducted (and not added
back) in computing "Consolidated Net Income"
plus
consolidated capitalized interest for such period, whether paid or accrued,
plus
net payments (positive or negative) under interest rate swap agreements (other
than in connection with the early termination thereof), but in any event to
exclude to the extent not added back to Consolidated EBITDA as interest
expense (A) the agency fees described in the Administrative Agent Fee Letter
and in the Co-Collateral Agent Fee Letter, (B) fees and expenses associated
with any asset sales, acquisitions, Investments, equity issuances or debt
issuances (including the Revolving Credit Facility), in each case, whether or
not consummated, (C) arrangement, commitment or upfront fees and similar
one-time financing fees, original issue discount, and redemption or prepayment
premiums, (D) any cash costs associated with breakage or termination in
respect of hedging agreements for interest rates and costs and fees associated
with obtaining swap contracts and fees payable thereunder and (E) amortization
of deferred financing costs.
"
Consolidated Net Income
": with respect to any person for any period, the aggregate Net Income of such
person and its subsidiaries for such period, on a consolidated basis, in
accordance with Applicable Accounting Principles;
provided
,
however
,
that, without duplication:
(a) any net after-tax extraordinary, nonrecurring or unusual gains or
losses (less all fees and expenses relating thereto) or expenses or charges,
any severance expenses, relocation expenses, curtailments or modifications to
pension and postretirement employee benefit plans, excess pension charges, any
expenses related to any reconstruction, decommissioning, recommissioning or
reconfiguration of fixed assets for alternate uses and fees, expenses or
charges relating to new product lines, facilities closing or consolidation
costs, acquisition integration costs, facilities opening costs, project
start-up costs, business optimization costs, (including inventory optimization
programs), systems establishment costs, contract termination costs, future
lease commitments, other
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US-DOCS\148017393.28
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restructuring charges, reserves or expenses, signing, retention or completion
bonuses, expenses or charges related to any issuance of Capital Stock,
Investment, acquisition, disposition, recapitalization or issuance, repayment,
refinancing, amendment or modification of Indebtedness (in each case, whether
or not successful), and any fees, expenses or charges or payments related to
the entry into the Revolving Credit Facility, in each case, shall be excluded;
provided
that the aggregate amount of cash expenses, charges and costs added back
pursuant to this
clause (a)
for each Test Period shall not exceed twenty percent (20%) of total
Consolidated Net Income for such Test Period (after giving effect to all
add-backs permitted by this
clause (a)
);
(b) effects of purchase accounting adjustments (including the effects of
such adjustments pushed down to such person and such Subsidiaries) in amounts
required or permitted by Applicable Accounting Principles, resulting from the
application of purchase accounting in relation to any consummated acquisition
or the amortization or write-off of any amounts thereof, net of taxes, shall
be excluded;
(c) the cumulative effect of a change in accounting principles (which shall
in no case include any change in the comprehensive basis of accounting) during
such period shall be excluded;
(d) (i) any net after-tax income or loss from disposed, abandoned,
transferred, closed or discontinued operations, (ii) any net after-tax gain or
loss on disposal of disposed, abandoned, transferred, closed or discontinued
operations and (iii) any net after-tax gains or losses (less all fees and
expenses or charges relating thereto) attributable to business dispositions or
asset dispositions other than in the ordinary course of business (as
determined in good faith by the Company) shall be excluded;
(e) any net after-tax gains or losses, or any subsequent charges or
expenses (less all fees and expenses or charges relating thereto),
attributable to the early extinguishment of Indebtedness, hedging obligations
or other derivative instruments shall be excluded;
(f) the Net Income for such period of any person that is not a Subsidiary
of such person or that is accounted for by the equity method of accounting
(other than a guarantor), shall be included only to the extent of the amount
of dividends or distributions or other payments actually paid in cash or cash
equivalents (or to the extent converted into cash or cash equivalents) to the
referent person or a Subsidiary thereof in respect of such period;
(g) any impairment charge or asset write-off and amortization of
intangibles, in each case pursuant to Applicable Accounting Principles, shall
be excluded;
(h) any non-cash expense realized or resulting from stock option plans,
employee benefit plans or post-employment benefit plans, or grants or sales of
stock, stock appreciation or similar rights, stock options, restricted stock,
preferred stock or other rights shall be excluded;
(i) any (i) non-cash compensation charges, (ii) costs and expenses after
the Closing Date related to employment of terminated employees, or (iii) costs
or expenses realized in connection with or resulting from stock appreciation
or similar rights, stock options or other rights existing on the Closing Date
of officers, directors and employees, in each case of such person or any of
its subsidiaries, shall be excluded;
-17-
US-DOCS\148017393.28
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(j) accruals and reserves that are established or adjusted within 12 months
after the Closing Date (excluding any such accruals or reserves to the extent
that they represent an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a prior
period) and that are so required to be established or adjusted in accordance
with Applicable Accounting Principles or as a result of adoption or
modification of accounting policies shall be excluded;
(k) the Net Income of any person and its Subsidiaries shall be calculated
by deducting the income attributable to, or adding the losses attributable to,
the minority equity interests of third parties in any non-Wholly Owned
Subsidiary;
(l) any unrealized gains and losses related to currency remeasurements of
Indebtedness, and any unrealized net loss or gain resulting from hedging
transactions for interest rates, commodities or currency exchange risk, shall
be excluded;
(m) to the extent covered by insurance and actually reimbursed, or, so long
as such person has made a determination that there exists reasonable evidence
that such amount will in fact be reimbursed by the insurer and only to the
extent that such amount is (i) not denied by the applicable carrier in writing
within 180 days and (ii) in fact reimbursed within 365 days of the date of
such evidence (with a deduction for any amount so added back to the extent not
so reimbursed within 365 days), expenses with respect to liability or casualty
events or business interruption shall be excluded; and
(n) non-cash charges for deferred tax asset valuation allowances shall be
excluded (except to the extent reversing a previously recognized increase to
Consolidated Net Income).
Consolidated Net Income presented in a currency other than U.S. Dollars will
be converted to U.S. Dollars based on the average exchange rate for such
currency during, and applied to, each Fiscal Quarter in the period for which
Consolidated Net Income is being calculated.
"
Contracts
": with respect to any Account, any and all contracts, instruments,
agreements, leases, invoices, notes or other writings pursuant to which such
Account arises or that evidence such Account or under which an Account Debtor
becomes or is obligated to make payment in respect of such Account.
"
Contractual Obligation
": as to any Person, any provision of any security issued by such Person or of
any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.
"
Control
": the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "
Controlling
" and "
Controlled
": have meanings correlative thereto.
"
Controlled Account
": each deposit account maintained by Intermediate SPV and the Borrower at a
Collection Bank and subject to a Cash Management Control Agreement.
"
Covenant Trigger Event
": any date after the Effective Date on which any of the following occurs:
(a) the Aggregate Excess Availability shall be less than the greater of (a)
10% of the Aggregate Line Cap (without giving effect to any increase thereof
during an Extraordinary Advance Period) and (b) $25,000,000 at any time and
continuing until the Aggregate Excess Availability is equal to or exceeds the
greater of (a) 10% of the Aggregate Line Cap (without giving effect to any
increase
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US-DOCS\148017393.28
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thereof during an Extraordinary Advance Period) and (b) $25,000,000 for 20
consecutive calendar days;
(b) the Non-Residential Excess Availability shall be less than the greater
of (a) 10% of the Non-Residential Line Cap (without giving effect to any
increase thereof during an Extraordinary Advance Period) and (b) $18,500,000
at any time and continuing until the Non-Residential Excess Availability is
equal to or exceeds the greater of (a) 10% of the Non-Residential Line Cap
(without giving effect to any increase thereof during an Extraordinary Advance
Period) and (b) $18,500,000 for 20 consecutive calendar days; or
(c) the Residential Excess Availability shall be less than the greater of
(a) 10% of the Residential Line Cap (without giving effect to any increase
thereof during an Extraordinary Advance Period) and (b) $6,500,000 at any time
and continuing until the Residential Excess Availability is equal to or
exceeds the greater of (a) 10% of the Residential Line Cap (without giving
effect to any increase thereof during an Extraordinary Advance Period) and (b)
$6,500,000 for 20 consecutive calendar days;
provided
that (i) such dollar threshold levels shall automatically increase in
proportion to the amount of any increase in the Revolving Credit Commitments
of the applicable Class in connection with any Incremental Facility, and (ii)
for the avoidance of doubt, any Covenant Trigger Event described above shall
apply to the Revolving Credit Loans of all Classes, unless waived by the
Required Lenders in accordance with
Section 9.2
hereof.
"
Covered Party
": as defined in
Section 9.19(a)
.
"
Credit and Collection Policy
": that certain Credit Policy and Procedures effective as of the Closing Date,
as modified from time to time in accordance with the terms of
Section 6.10
.
"
Credit Extension
": a Borrowing.
"
Credit Party
": any Agent, any Arranger or any Lender.
"
Current Assets
": with respect to the Company and the Subsidiaries on a consolidated basis at
any date of determination, all assets (other than cash or other cash
equivalents) that would, in accordance with Applicable Accounting Principles,
be classified on a consolidated balance sheet of the Company and the
Subsidiaries as current assets at such date of determination, other than
amounts related to current or deferred Taxes based on income or profits.
"
Debtor Relief Laws
": the Bankruptcy Code of the United States and all other liquidation,
conservatorship, bankruptcy, general assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.
"
Default
": any of the events specified in
Section VII
, whether or not any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"
Default Rate
": the rate described in
Section 2.5(b)
.
"
Defaulting Lender
": any Lender whose act or failure to act, whether directly or indirectly,
causes it to meet any part of the definition of "Lender Default."
-19-
US-DOCS\148017393.28
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"
Defaulting Lender Rate
": (a) for the first three days from and after the date the relevant payment
is due, the Base Rate, and (b) thereafter, the interest rate then applicable
to Revolving Credit Loans that are Base Rate Loans (inclusive of the
Applicable Margin for Base Rate Loans applicable thereto).
"
Disposition
": with respect to any Property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof (excluding
Liens); and the terms "
Dispose
" and "
Disposed of
" shall have correlative meanings.
"
Disqualified Capital Stock
": any Capital Stock that, by its terms (or by the terms of any security or
other Capital Stock 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 (i) solely for Qualified Capital Stock
and cash in lieu of fractional shares or (ii) solely at the discretion of the
issuer), pursuant to a sinking fund obligation or otherwise (except as a
result of a change of control, asset sale or similar event so long as any
rights of the holders thereof upon the occurrence of a change of control,
asset sale or similar event shall be subject to the prior repayment in full of
the Loans and all other Obligations that are accrued and payable and the
termination of the Revolving Credit Commitments), (b) is redeemable at the
option of the holder thereof (other than (i) solely for Qualified Capital
Stock and cash in lieu of fractional shares or (ii) as a result of a change of
control, asset sale or similar event so long as any rights of the holders
thereof upon the occurrence of a change of control, asset sale or similar
event shall be subject to the prior repayment in full of the Loans and all
other Obligations that are accrued and payable and the termination of the
Revolving Credit Commitments), 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 Capital Stock that would
constitute Disqualified Capital Stock, in each case, prior to the date that is
91 days after the Latest Maturity Date at the time of issuance of such Capital
Stock;
provided
that if such Capital Stock is issued pursuant to a plan for the benefit of
employees of the Borrower or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Capital Stock solely because such
Capital Stock may be required to be repurchased by the Borrower in order to
satisfy applicable statutory or regulatory obligations or as a result of such
employee's termination, death or disability.
"
Disqualified Lender
": (a) those financial institutions, lenders and other Persons previously
specified in writing by the Borrower by notice to the Administrative Agent
prior to the date hereof, (b)
bona fide
competitors of the Borrower as identified by the Borrower by written notice to
the Administrative Agent from time to time and (c) in the case of
clause (b)
, Affiliates thereof (other than any
bona fide
debt funds) that are clearly identifiable on the basis of such Affiliates'
names (the list of which may be updated from time to time by written notice to
the Administrative Agent to identify additional Affiliates); it being
understood and agreed that the identification of any Person as a Disqualified
Lender after the Closing Date shall not apply to retroactively disqualify any
Person that has previously acquired an assignment or participation interest in
any Loan or Revolving Credit Commitment so long as such Person was not a
Disqualified Lender at the time of such assignment or participation. The list
of Disqualified Lenders shall be posted to the Platform, it being understood
that the Borrower may update such list from time to time with respect to
Disqualified Lenders to the extent provided for above, and the Administrative
Agent shall post such updated schedule to the Platform promptly following its
receipt thereof, with such updates effective one Business Day after delivery
to the Administrative Agent (or, if posted to the Platform sooner, upon
posting to the Platform).
"
Distressed Person
": as defined in the definition of "Lender-Related Distress Event."
"
Dominion Period
": (a) each period beginning on the occurrence of an Event of Default until
such Event of Default has been cured or waived; (b) each period during which a
Dominion Period Availability Condition exists; or (c) upon the termination of
either Purchase Agreement prior to the satisfaction in full in cash of all
Obligations.
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US-DOCS\148017393.28
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"
Dominion Period Availability Condition
" means:
(a) each period:
beginning
on the date that the Aggregate Excess Availability shall have been less than
the greater of (x) 50% of the Aggregate Line Cap (without giving effect to any
increase thereof during an Extraordinary Advance Period) and (y) $118,750,000
for five consecutive Business Days, and
ending
on the date that Aggregate Excess Availability shall have been at least the
greater of (x) 50% of the Aggregate Line Cap (without giving effect to any
increase thereof during an Extraordinary Advance Period) and (y) $118,750,000
for 20 consecutive calendar days (and neither the Collateral Agent nor the
Co-Collateral Agent shall have delivered an effective notice of the
commencement of a Dominion Period under
clause (b)
of this definition); or
(b) each period:
beginning
on the date that (x) the Aggregate Excess Availability shall have been at
least the greater of (A) 50% of the Aggregate Line Cap (without giving effect
to any increase thereof during an Extraordinary Advance Period) and (B)
$118,750,000 for five consecutive Business Days and (y) either the Collateral
Agent or the Co-Collateral Agent shall have delivered written notice to the
Borrower determining to commence a Dominion Period and the effective date of
such notice shall have occurred in accordance with the following paragraph, and
ending on the date that (1) Aggregate Excess Availability shall have been at
least $175,000,000 on any Business Day or (2) the Collateral Agent or the
Co-Collateral Agent, as applicable, shall have revoked its notice to commence
a Dominion Period;
provided
, that no Dominion Period Availability Condition may be deemed to have
occurred or be continuing at any time when (1) the Total Revolving Credit
Exposure is $0, or (2) the Aggregate Excess Availability is at least
$175,000,000 (and any then-existing Dominion Period Availability Condition
shall be deemed to cease and be of no further effect immediately upon the
occurrence of either (1) or (2)).
Any of the Collateral Agent or the Co-Collateral Agent may deliver a notice to
commence a Dominion Period under
paragraph (b)(y)
above in its Permitted Discretion. Each such notice shall become effective and
the related Dominion Period shall be deemed to commence at the end of the
third (3
rd
) Business Day following delivery thereof. During the three (3) Business Day
notice period, the Collateral Agent or the Co-Collateral Agent, as applicable,
shall, if requested, discuss its determination to commence a Dominion Period
with the Borrower, and the Collateral Agent or the Co-Collateral Agent, as
applicable, in its sole discretion, may at any time revoke its notice of a
Dominion Period.
"
EDGAR
": the SEC Electronic Data Gathering, Analysis and Retrieval system (EDGAR),
or any successor system thereto.
"
EEA Financial Institution
": (a) any credit institution or investment firm established in any EEA Member
Country which is subject to the supervision of an EEA Resolution Authority,
(b) any entity established in an EEA Member Country which is a parent of an
institution described in
clause (a)
of this definition or (c) any financial institution established in an EEA
Member Country which is a subsidiary of
-21-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
an institution described in
clause (a)
or
(b)
of this definition and is subject to consolidated supervision with its parent.
"
EEA Member Country
": any of the member states of the European Union, Iceland, Liechtenstein and
Norway.
"
EEA Resolution Authority
": any public administrative authority or any Person entrusted with public
administrative authority of any EEA Member Country (including any delegee)
having responsibility for the resolution of any EEA Financial Institution.
"
Effective Date
": the date on which the conditions precedent set forth in
Section 4.2
shall have been satisfied or waived in accordance with
Section 9.2
, and the date of the initial Credit Extension under this Agreement.
"
Electronically
": as defined in
Section 9.1(a)
.
"
Eligible Assignee
": (i) any Lender, any Affiliate or branch of a Lender and any Approved Fund
and (ii) any commercial bank, insurance company, investment or mutual fund or
other entity that is an "accredited investor" (as defined in Regulation D
under the Securities Act) and which extends revolving credit or buys revolving
loans in the ordinary course;
provided
that "Eligible Assignee" shall not include (v) any Disqualified Lender, (w)
any Lender that is, as of the date of the applicable assignment, a Defaulting
Lender, (x) any natural person, (y) any Person that the Borrower has
previously declined to provide its consent to an assignment to under
Section 9.4
or (z) the Borrower or any Affiliate of the Borrower.
"
Eligible Non-Residential Accounts
": all of the Non-Residential Accounts owned by the Borrower, except any
Non-Residential Accounts as to which any of the Exclusionary Criteria applies;
provided
that the face amount of a Non-Residential Account (and Eligible Non-Residential
Account) shall be reduced by, without duplication, to the extent not reflected
in such face amount, (i) the amount of all discounts, claims, credits or
credits pending (including deposits), promotional program allowances, rebates,
price adjustments, finance and service charges or other allowances (including
any amount that the Borrower or the Originators may be obligated to rebate to
a customer pursuant to the terms of any agreement or understanding), and (ii)
the amount of Taxes and other fees and payments required by Law to be
collected by the Originators from customers on behalf of any Governmental
Authority or a third party, including, without limitation, public benefit
funds and green infrastructure fees.
"
Eligible Reserves
": Reserves established or modified in the Permitted Discretion of the
Collateral Agent or the Co-Collateral Agent subject to the following: (a) the
amount of any Eligible Reserves shall have a reasonable relationship to the
event, condition or other matter that is the basis for the establishment of
such Reserve or such modification thereto, (b) except as otherwise expressly
provided in the definitions of "Eligible Non-Residential Account" or "Eligible
Residential Account", no Reserves shall be established or modified to the
extent they are duplicative of Reserves or modifications already accounted for
through eligibility or other criteria (including collection/advance rates),
(c) other than with respect to
clause (vi)
of the definition of "Reserves", no Reserve may be taken after the Closing
Date based on circumstances, conditions, events or contingencies known to the
Collateral Agent and the Co-Collateral Agent as of the Closing Date (other
than any such circumstances, conditions, events or contingencies disclosed in
the first field examination and appraisal delivered to the Collateral Agent
and the Co-Collateral Agent after the Closing Date that were not identified in
the field examination and appraisal delivered to the Collateral Agent and the
Co-Collateral Agent on or prior to the Closing Date) for which no Reserve was
imposed on the Closing Date, and no Reserve taken on the Closing Date may be
increased, unless, in each case, such circumstances, conditions, events or
contingencies shall have changed in any material adverse respect since the
Closing Date, (d) the amount of any Reserve so established or the effect of
any adjustment or imposition
-22-
US-DOCS\148017393.28
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of exclusionary criteria shall be a reasonable quantification of changes in
the ability of the Collateral Agent to realize upon the Collateral included in
the applicable Borrowing Base and (e) any Reserve taken with respect to any
Cash Management Obligation (i) shall be in an amount no greater than the
maximum amount of the Cash Management Obligations which shall be notified to
the Administrative Agent in writing by the Qualified Counterparty and the
Borrower from time to time, and (ii) may only be taken or increased if, on a
pro forma
basis for such new or increased Reserve, the Aggregate Excess Availability
shall be no less than $30,000,000.
Subject to the limitations above, the Collateral Agent and the Co-Collateral
Agent shall each have the right, upon at least three Business Days' prior
written notice to the Borrower (which notice shall include a reasonably
detailed description of such Reserve being established, modified or
eliminated), to establish, modify or eliminate Reserves against the applicable
Borrowing Base, but without duplication, from time to time in their respective
Permitted Discretion;
provided
that no such prior written notice shall be required (x) after the occurrence
and during the continuance of an Event of Default or (y) for changes to any
Eligible Reserves resulting solely by virtue of mathematical calculations of
the amount of the Eligible Reserves in accordance with the methodology of
calculation previously utilized (such as, but not limited to, tax rates).
During such notice period, the Collateral Agent or the Co-Collateral Agent, as
applicable, shall, if requested, discuss any such Reserve or change with the
Borrower, and the Borrower may take such action as may be required so that the
event, condition or matter that is the basis for such Reserve or change no
longer exists or exists in a manner that would result in the establishment of
a lower Reserve or result in a lesser change, in each case, in a manner and to
the extent reasonably satisfactory to the Collateral Agent or the
Co-Collateral Agent, as applicable;
provided
,
further
,
that during such three Business Day period, no Borrowings are permitted that
would cause the Revolving Credit Exposure to exceed the applicable Line Cap
after giving pro forma effect to the application of such Reserve.
Reserves shall be deemed taken on a ratable basis among Tranches, unless the
Collateral Agent and the Co-Collateral Agent determine that Reserves shall be
applied in a different proportion or manner. Any determination of the
establishment of Reserves may be made by either the Collateral Agent or the
Co-Collateral Agent, or both. In the event of any disagreement in respect
thereto, the more restrictive position (as it relates to the Borrower) shall
be dispositive.
"
Eligible Residential Accounts
": all of the Residential Accounts owned by the Borrower, except any
Residential Accounts as to which any of the Exclusionary Criteria applies;
provided
that the face amount of a Residential Account (and Eligible Residential
Account) shall be reduced by, without duplication, to the extent not reflected
in such face amount, (i) the amount of all discounts, claims, credits or
credits pending (including deposits), promotional program allowances, rebates,
price adjustments, finance and service charges or other allowances (including
any amount that the Borrower or the Originators may be obligated to rebate to
a customer pursuant to the terms of any agreement or understanding), and (ii)
the amount of Taxes and other fees and payments required by Law to be
collected by the Originators from customers on behalf of any Governmental
Authority or a third party, including, without limitation, public benefit
funds and green infrastructure fees.
"
Enforcement Qualifications
": shall have the meaning set forth in
Section 3.6
.
"
Environment
": air, surface water, groundwater, drinking water, land surface, subsurface
strata, and natural resources such as wetlands, flora and fauna.
"
Environmental Laws
": any applicable Law relating in any way to the environment, pollution,
preservation or protection of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters
concerning Hazardous Materials.
-23-
US-DOCS\148017393.28
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"
Environmental Liability
": any liability, contingent or otherwise (including any liability for
damages, costs of investigation and remediation, fines, penalties or
indemnities), of the Borrower resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation,
storage or treatment of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the Release or threatened Release of any Hazardous Materials or
(e) any legally binding contract, agreement or other consensual arrangement to
the extent liability is assumed or imposed with respect to any of the
foregoing.
"
ERISA
": the Employee Retirement Income Security Act of 1974, as amended from time
to time.
"
ERISA Affiliate
": any trade or business (whether or not incorporated) that, together with the
Borrower or any Subsidiary, is treated with the Borrower as a single employer
under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated with the Borrower as a single employer under Section 414(b), (c), (m)
or (o) of the Code.
"
ERISA Event
": (a) any "reportable event", as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the failure with respect to any
Plan to pay the "minimum required contribution" (as defined in Section 430 of
the Code or Section 303 of ERISA), unless waived; (c) the incurrence by the
Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with
respect to the termination of any Plan; (d) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (e) the incurrence by the Borrower or any ERISA Affiliate
of any liability with respect to the withdrawal or partial withdrawal from any
Multiemployer Plan; or (f) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent, within the meaning of Title IV of ERISA.
"
EU Bail-In Legislation Schedule
": the EU Bail-In Legislation Schedule published by the Loan Market
Association (or any successor Person), as in effect from time to time.
"
Event of Default
": any of the events specified in
Section VII
;
provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"
Excluded Amounts
": as defined in the Borrower Purchase Agreement.
"
Excluded Participant
": any (i) Disqualified Lender, (ii) any natural person, (iii) any Defaulting
Lender or (iv) the Borrower or any of its Affiliates (other than a
bona fide
debt fund).
"
Excluded Receivables
": as defined in the Intermediate Purchase Agreement.
"
Excluded Taxes
": any of the following Taxes imposed on or with respect to any Agent, any
Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, or required to be withheld or
deducted from any payment to any such recipient: (a) Taxes imposed on (or
measured by) net income (however denominated), franchise Taxes (including the
Hawaii Franchise Tax pursuant to Haw. Rev. Stat. (s)241), 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 (ii) that are Other Connection Taxes, (b) in the case of a Lender,
US federal withholding Taxes that are imposed on amounts payable to or for the
account of such Lender with respect to an applicable interest in a Loan or
Revolving
-24-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
Credit Commitment pursuant to Laws in effect on the date on which (i) such
Lender acquires such interest in the applicable Revolving Credit Commitment
or, if such Lender did not fund the applicable Loan pursuant to a prior
Revolving Credit Commitment, on the date such Lender acquires the applicable
interest in such Loan (other than pursuant to an assignment request by the
Borrower under
Section 2.18
) or (ii) such Lender changes its lending office, except in each case to the
extent that, pursuant to
Section 2.16
, amounts with respect to such Taxes were payable either to such Lender's
assignor immediately before such Lender acquired the applicable interest in a
Loan or Revolving Credit Commitment or to such Lender immediately before it
changed its lending office, (c) Taxes attributable to such recipient's failure
to comply with
Section 2.16(e),
and (d) any withholding Taxes imposed under FATCA.
"
Exclusionary Criteria
": Eligible Non-Residential Accounts and Eligible Residential Accounts shall
not include any Account of the Borrower that:
(a) does not arise from the sale of goods or the performance of services by
the Originators in the ordinary course of their respective businesses;
(b) (i) upon which the Borrower's right to receive payment is not absolute
or is contingent upon the fulfillment of any condition whatsoever (other than
the preparation and delivery of an invoice or billing statement), (ii) as to
which the Borrower or any Originator is not able to bring suit or otherwise
enforce its remedies against the Account Debtor through judicial process or
(iii) represents a progress billing consisting of an invoice for goods sold or
used or services rendered pursuant to a contract under which the Account
Debtor's obligation to pay that invoice is subject to the Borrower's or any
other Person's completion of further performance under such contract;
(c) to the extent any Account Debtor has or has asserted a right of setoff,
or has asserted a defense, counterclaim or dispute as to such Account;
(d) is not a true and correct statement of
bona fide
indebtedness incurred in the amount of the Account for goods sold to or
services rendered and accepted by the applicable Account Debtor;
(e) with respect to which an invoice or billing statement has not been
issued or sent to the applicable Account Debtor within 31 days after the end
of the applicable monthly billing period;
provided
,
however
, that no more than $1,000,000 of Accounts with respect to which an invoice or
billing statement has been issued or sent to the applicable Account Debtor
within 61 days after the end of the applicable monthly billing period shall
not be subject to exclusion under this
clause (e)
;
(f) is the obligation of an Account Debtor that is a government or
governmental agency to the extent that all such obligations as of any date of
determination exceed the Government Receivables Basket, unless, in each case,
the Borrower has complied (and delivered to the Collateral Agent and the
Co-Collateral Agent reasonable evidence of such compliance) with respect to
such obligation with the Federal Assignment of Claims Act of 1940, Haw. Rev.
Stat. (s)40-58 and any similar applicable foreign, state, county or municipal
law restricting the assignment thereof or the granting of a Lien thereon with
respect to such obligation;
(g) is the obligation of an Account Debtor (including any government or
governmental agency) organized under the laws of, or having its principal
executive office located in, a jurisdiction other than the United States or
any state, province or territory thereof;
-25-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
(h) with respect to which an agreement has been made with the Account
Debtor for any payment plan or other discounts and adjustments;
(i) is an Account to the extent that such Account, together with all other
Accounts owing by such Account Debtor (and its Affiliates, to the extent known
by the Company, Intermediate SPV or the Borrower to be affiliated or
reasonably identifiable as an Affiliate of an Account Debtor solely on the
basis of its name), as of any date of determination, exceed 10% of all
Eligible Non-Residential Accounts or Eligible Residential Accounts, as
applicable; but, in each case, only to the extent of the obligations owing by
such Account Debtor in excess of such percentage;
provided
that this
clause (i)
shall not apply to obligations of an Account Debtor that is a government or
governmental agency;
(j) (i) is not paid within 81 days following its original invoice or
billing date, has been outstanding for more than 60 days or which has been
written off the books of the Borrower, the Servicer or any Originator or
otherwise designated as uncollectible by the Borrower, the Servicer or the
applicable Originator or (ii) for which service has been disconnected or
suspended as a result of nonpayment;
(k) is an Account in respect of which the Account Debtor obligated upon
such Account suspends business, makes a general assignment for the benefit of
creditors or fails to pay its debts generally as they come due;
provided
that the Collateral Agent and the Co-Collateral Agent may, in each of their
sole discretion, include Accounts from Account Debtors subject to such
proceedings if and to the extent that such Accounts are fully covered by
credit insurance, letters of credit or other sufficient third-party credit
support, or are otherwise deemed by the Collateral Agent and the Co-Collateral
Agent not to pose an unreasonable risk of non-collectability;
(l) a Bankruptcy Event occurs with respect to the Account Debtor obligated
upon such account;
provided
that so long as post-petition financing is being provided to such Account
Debtor, post-petition accounts of such Account Debtor may be deemed Eligible
Non-Residential Accounts by and to the extent approved by each of the
Collateral Agent and the Co-Collateral Agent, in their Permitted Discretion,
on a case-by-case basis;
(m) is an Account as to which the Collateral Agent's Lien thereon, on
behalf of itself and the Secured Parties, is not a first priority perfected
lien subject only to First Priority Priming Liens;
(n) is an Account with respect to which the representations or warranties
pertaining to such Accounts set forth in any Loan Document are untrue in any
material respect;
(o) is payable in any currency other than U.S. Dollars;
(p) is not owned by the Borrower free and clear of all Liens other than the
Collateral Agent's Lien and the First Priority Priming Liens;
(q) is the obligation of an Account Debtor if 50% or more of the dollar
amount of all Accounts owing by that Account Debtor are ineligible under the
criteria listed in
clause (j)
of this definition;
(r) is evidenced by a judgment, instrument or chattel paper;
-26-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
(s) is an Account as to which any check, draft or other items of payment
has previously been received which has been returned unpaid or otherwise
dishonored;
(t) consists of finance charges as compared to obligations to the Borrower
for goods sold or services rendered;
(u) is an Account with respect to which the Account Debtor is subject to
any Sanctions, including a person named on the list of "Specially Designated
Nationals and Blocked Persons" maintained by OFAC or which is a designated
person named on any similar applicable list;
(v) is an Account arising out of a sale made or services rendered by the
Borrower or an Originator to an Affiliate (other than American Savings Bank
FSB and any employees, officers, directors or stockholders that are natural
persons), a supplier or a creditor of the Borrower or an Originator;
(w) is an Account that was not paid in full, and the Borrower created a new
receivable for the unpaid portion of the Account (it being understood that this
clause (w)
shall only apply with respect to, and to the extent of, such unpaid portion);
(x) has not been originated in accordance with the Credit and Collection
Policy;
(y) where the Account Debtor has not been instructed to remit all payments
with respect to their related Accounts (other than any Excluded Receivables)
to an Intermediate Account; or
(z) constitutes an Excluded Receivable or a Non-Commodity Related
Receivable (in each case, as defined in the Intermediate Purchase Agreement).
"
Expiration Date
": August 13, 2024;
provided
that, if, as of such date, all conditions precedent in
Section 4.2
have been met or satisfied, except for the condition in
clause (f)
thereof, the Expiration Date shall be automatically extended to November 13,
2024.
"
Extended Class
": as defined in
Section 2.22(a)
.
"
Extended Revolving Credit Commitment
": as defined in
Section 2.22(a)(i)
.
"
Extension
": as defined in
Section 2.22(a)
.
"
Extension Amendment
": as defined in
Section 2.22(c)
.
"
Extension Offer
": as defined in
Section 2.22(a)
.
"
Extraordinary Advance Period
": the period during which Extraordinary Advances are made by the Funding
Agent, as provided in
Section 2.2(c)
.
"
FATCA
": Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), any current or future regulations
thereunder or official interpretations thereof, any agreements entered into
pursuant to current Section 1471(b)(1) of the Code and any fiscal or
regulatory legislation, rules or
-27-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
practices adopted pursuant to any intergovernmental agreement, treaty or
convention among Governmental Authorities and implementing such Sections of
the Code.
"
Federal Funds Rate
": for any period, a fluctuating interest rate per annum equal to, for each
day during such period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Funding Agent from three Federal funds brokers of recognized standing selected
by it (and, if any such rate is below zero, then the rate determined pursuant
to this definition shall be deemed to be zero).
"
Federal Reserve Board
": the Board of Governors of the Federal Reserve System of the United States.
"
Financial Covenant
": the covenant set forth in
Section 6.1
.
"
First Priority Priming Liens
": any Liens applicable to such Collateral which as a matter of law have
priority over the respective Liens on such Collateral created in favor of the
Collateral Agent for the benefit of the Secured Parties pursuant to the
relevant Security Document.
"
Fiscal Month
": any fiscal month of any Fiscal Year, in accordance with the fiscal
accounting calendar of the Company.
"
Fiscal Quarter
": any fiscal quarter of any Fiscal Year, in accordance with the fiscal
accounting calendar of the Company.
"
Fiscal Year
": any fiscal year of the Borrower, in accordance with the fiscal accounting
calendar of the Company.
"
Fitch
": Fitch Ratings, Ltd., a division of Fitch, Inc. or any successor by merger
or consolidation to its business.
"
Floor
": 0.00%.
"
Foreign Lender
": any Lender that is not a U.S. Person.
"
Funding Agent
": as defined in the preamble hereto.
"
Funding Agent's Account
": the deposit account of the Funding Agent identified on
Schedule A-1
to this Agreement (or such other deposit account of the Funding Agent that has
been designated as such, in writing, by the Funding Agent to the Borrower and
the Lenders).
"
Funding Date
": the date on which a Borrowing occurs.
"
Funding Losses
": as defined in
Section 2.10(b)(ii)
.
"
GAAP
": generally accepted accounting principles in effect from time to time in the
United States of America, applied on a consistent basis, subject to the
provisions of
Section 1.4
.
"
Government Receivables Basket
": (a) $50,000,000, at all times when (i) no Liquidity Condition then exists,
and (ii) Aggregate Excess Availability is equal to or greater than
$50,000,000; and (b) $0.00 at all other times.
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US-DOCS\148017393.28
-------------------------------------------------------------------------------
"
Governmental Authority
": any nation or government, any state or other political subdivision thereof,
any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including supra-national bodies such as the European
Union or the European Central Bank).
"
Guarantee Obligation
": with respect to any Person (the "
guaranteeing person
"), any obligation of the guaranteeing person guaranteeing or having the
economic effect of guaranteeing any Indebtedness (the "
primary obligations
") of any other third Person (the "
primary obligor
") in any manner, whether directly or indirectly, including any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect security
for such primary obligation, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, in each case, so as to enable
the primary obligor to pay such primary obligation, (iii) to purchase
Property, 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 owner of any such primary obligation against loss in respect
thereof;
provided
,
however
,
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or
customary indemnity obligations in effect on the Closing Date or entered into
in connection with any acquisition or Disposition permitted under this
Agreement (other than such obligations with respect to Indebtedness). The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation (or portion thereof) in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount
for which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"
Hazardous Materials
": all materials, pollutants, contaminants, chemicals, compounds,
constituents, substances or wastes, in any form, including petroleum or
petroleum distillates, asbestos or asbestos-containing materials, per- or
polyfluoroalkyl substances, polychlorinated biphenyls, radon gas, or toxic
mold, that are regulated pursuant to, or which could give rise to liability
under, applicable Environmental Law based on their dangerous or deleterious
properties.
"
HEI
": as defined in the recitals hereto.
"
Historical Average Utilization
": for the purposes of the definition of "Commitment Fee Rate", in the case of
each Adjustment Date, an amount equal to (x) the sum of each day's utilization
of the Total Revolving Credit Commitments, as determined by the amount of the
Total Revolving Credit Exposure at such time, during the most recently ended
Fiscal Quarter
divided by
(y) the number of days in such Fiscal Quarter, expressed as a percentage of
the Total Revolving Credit Commitments.
"
Historical Excess Availability
": for the purposes of the definition of "Applicable Margin", in the case of
each Adjustment Date, an amount equal to (x) the sum of each day's Aggregate
Excess Availability during the most recently ended Fiscal Quarter
divided by
(y) the number of days in such Fiscal Quarter.
"
IFRS
": as defined in
Section 1.4
.
"
Incremental Amendment
": as specified in
Section 2.23(e)
.
-29-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
"
Incremental Amount
": the greater of (i) $100,000,000 and (ii) the excess of the Aggregate
Borrowing Base then in effect at the time over the aggregate amount of
Revolving Credit Commitments then in effect at the time of the effectiveness
of such Incremental Amendment.
"
Incremental Facility
": as specified in
Section 2.23(a)
.
"
Incremental Loans
": as specified in
Section 2.23(a)
.
"
Incremental Revolving Facilities
": as specified in
Section 2.23(a)
.
"
Indebtedness
": as to any Person at a particular time, without duplication, all of the
following:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b) the maximum amount (after giving effect to any prior drawings or
reductions which may have been reimbursed and any cash collateralization) of
all outstanding letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds, performance bonds and similar
instruments issued or created by or for the account of such Person;
(c) net obligations of such Person under any Swap Obligation;
(d) all obligations of such Person to pay the deferred purchase price of
property or services;
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements and
mortgage, industrial revenue bond, industrial development bond and similar
financings), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified Capital Stock
if and to the extent that the foregoing would constitute indebtedness or a
liability in accordance with GAAP; and
(h) to the extent not otherwise included above, all Guarantee Obligations
of such Person in respect of Indebtedness described in
clauses (a)
through
(g)
in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall exclude (i)
trade accounts and accrued expenses payable in the ordinary course of
business, (ii) any earn-out obligation until such obligation is not paid after
becoming due and payable, (iii) accruals for payroll and other liabilities
accrued in the ordinary course of business and (iv) purchase price holdbacks
in respect of a portion of the purchase price of an asset to satisfy warranty
or other unperformed obligations of the respective seller. The amount of any
net obligation under any Swap Obligation on any date shall be deemed to be the
Swap Termination Value thereof as of such date. The amount of Indebtedness of
any Person for purposes of
clause (e)
shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount
of such Indebtedness and (y) the fair market value of the property encumbered
thereby as determined by such Person in good faith.
-30-
US-DOCS\148017393.28
-------------------------------------------------------------------------------
"
Indemnified Taxes
": (a) Taxes, other than Excluded Taxes, imposed on or with respect to any
payment made by or on account of any obligation of the Borrower under any Loan
Document and (b) to the extent not otherwise defined in
clause (a)
, Other Taxes.
"
Indemnitee
": as defined in
Section 9.3(b)
.
"
Independent Manager
" as defined in
Section 5.14(c)
.
"
Independent Parties
": as defined in
Section 5.14(c)
.
"
Information
": as defined in
Section 9.12(a)
.
"
Interest Payment Date
":
(a) with respect to any Base Rate Loan, the last Business Day of each
March, June, September and December; and
(b) with respect to any SOFR Loan, the first Business Day following the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a SOFR Loan with an Interest Period of more than
three months' duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months' duration after the first day of such
Interest Period.
"
Interest Period
": with respect to any SOFR Loan, a period commencing on the date of the
making of such SOFR Loan (or the continuation of a SOFR Loan or the conversion
of a Base Rate Loan to a SOFR Loan) and ending one, three or six months
thereafter;
provided
, that (a) interest shall accrue at the applicable rate based upon Term SOFR
from and including the first day of each Interest Period to, but excluding,
the day on which any Interest Period expires, (b) any Interest Period that
would end on a day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Business Day, (c) with respect to an Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period), the Interest Period shall end on the last Business Day of
the calendar month that is one, three or six months after the date on which
the Interest Period began, as applicable, (d) Borrowers may not elect an
Interest Period which will end after the Latest Maturity Date or, with respect
to Short-Term Borrowings, after the Short-Term Borrowing Repayment Date and
(e) no tenor that has been removed from this definition pursuant to
Section 2.10(d)(iii)(D)
shall be available for specification in any Borrowing Request or conversion or
continuation notice.
"
Intermediate Accounts
": the deposit accounts of Intermediate SPV (or which will be transferred to
Intermediate SPV pursuant to
Section 4.2(i)
) listed on
Schedule V
of the Intermediate Purchase Agreement, which constitute all deposit accounts
into which payments with respect to any Pool Receivables shall be made by
Account Debtors.
"
Intermediate Collateral Agreement
": the certain Collateral Agreement, dated as of the date hereof, among
Intermediate SPV and the Collateral Agent, substantially in the form of
Exhibit A-2
.
"
Intermediate Pledge Agreement
": the certain Pledge Agreement, dated as of the date hereof, among
Intermediate SPV and the Collateral Agent, and acknowledged by the Borrower,
substantially in the form of
Exhibit A-3
.
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US-DOCS\148017393.28
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"
Intermediate Purchase Agreement
": as defined in the recitals hereto.
"
Intermediate SPV
": as defined in the recitals hereto.
"
Investment Grade Rating
": a rating equal to or higher than Baa3 (or the equivalent) by Moody's or
BBB- (or the equivalent) by S&P, or an equivalent rating by any other
nationally recognized statistical rating agency selected by the Borrower. For
the avoidance of doubt, a Person shall be deemed to have an Investment Grade
Rating to the extent it maintains a rating in accordance with the preceding
sentence from one or more nationally recognized statistical rating agencies.
"
Investments
": as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Capital
Stock or debt or other securities of another Person, (b) a loan, advance or
capital contribution to, guarantee or assumption of Indebtedness of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture
interest in such other Person or (c) the purchase or other acquisition (in one
transaction or a series of transactions, including by way of merger) of all or
substantially all of the property and assets or business of another Person or
assets constituting a business unit, line of business or division of such
Person.
"
IRS
": United States Internal Revenue Service.
"
Latest Maturity Date
": as of any date of determination, the latest Maturity Date applicable to any
Loan or Revolving Credit Commitment hereunder as of such date, including the
latest maturity date of any Extended Revolving Credit Commitments, as extended
in accordance with this Agreement from time to time. If no Extension has been
consummated pursuant to
Section 2.22
of this Agreement, the Latest Maturity Date is the Maturity Date.
"
Laws
": collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority.
"
Lender Default
": (i) the refusal or failure of any Lender to make available its portion of
any incurrence of Loans (unless such Lender notifies the Funding Agent in
writing that such failure is the result of such Lender's good faith
determination that a condition precedent to funding expressly set forth in
Section IV
(specifically identified and including the particular default, if any) has not
been satisfied), which refusal or failure is not cured within one Business Day
after the date of such refusal or failure; (ii) the failure of any Lender to
pay over to the Funding Agent or any Agent or Lender any other amount required
to be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute; (iii) the notification by a Lender
to the Borrower or the Funding Agent that such Lender does not intend or
expect to comply with any of its funding obligations hereunder or a public
statement by a Lender to that effect with respect to such Lender's funding
obligations hereunder (unless such notification or public statement indicates
that such position is based on such Lender's good faith determination that a
condition precedent to funding expressly set forth in
Section IV
(specifically identified and including the particular default, if any) has not
been satisfied); (iv) the failure by a Lender to confirm in a manner
reasonably satisfactory to the Funding Agent that such Lender will comply with
such Lender's obligations hereunder (
provided
that such Lender shall cease being subject to a Lender Default pursuant to this
clause (iv)
upon receipt of such certifications); (v) the admission in writing by a
Distressed Person that it is insolvent; or (vi) such Distressed Person
becoming subject to a Lender-Related Distress Event.
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US-DOCS\148017393.28
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"
Lender Group Expenses
": all (a) costs or expenses (including taxes and insurance premiums) required
to be paid by the Borrower under any of the Loan Documents that are paid,
advanced, or incurred by any Agent or any Lender (for purposes of this
definition, the "
Lender Group
"), (b) documented out-of-pocket fees or charges paid or incurred by any Agent
in connection with the Lender Group's transactions with the Borrower under any
of the Loan Documents, including, photocopying, notarization, couriers and
messengers, telecommunication, public record searches, filing fees, recording
fees, publication, real estate surveys, real estate title policies and
endorsements, and environmental audits, (c) the Agents' customary fees and
charges imposed or incurred in connection with any background checks or
OFAC/PEP searches related to the Borrower, (d) the Agents' customary fees and
charges (as adjusted from time to time) with respect to the disbursement of
funds (or the receipt of funds) to or for the account of the Borrower (whether
by wire transfer or otherwise), together with any out-of-pocket costs and
expenses incurred in connection therewith, (e) customary charges imposed or
incurred by any Agent resulting from the dishonor of checks payable by or to
the Borrower, (f) reasonable, documented out-of-pocket costs and expenses paid
or incurred by the Lender Group to correct any default or enforce any
provision of the Loan Documents, or during the continuance of an Event of
Default, in gaining possession of, maintaining, handling, preserving, storing,
shipping, selling, preparing for sale, or advertising to sell the Collateral,
or any portion thereof, irrespective of whether a sale is consummated, (g)
field examination, appraisal, and valuation fees and expenses of the
Collateral Agent or the Co-Collateral Agent related to any field examinations,
appraisals, or valuation to the extent of the fees and charges (and up to the
amount of any limitation) provided in
Section 5.6
of this Agreement, (h) subject to any applicable limitations in
Sections 9.3(a)
and
(b)
, any Agent's and any Lender's reasonable and documented out-of-pocket costs
and expenses (including reasonable and documented external attorneys' fees and
expenses) relative to third party claims or any other lawsuit or adverse
proceeding paid or incurred, whether in enforcing or defending the Loan
Documents or otherwise in connection with the transactions contemplated by the
Loan Documents, the Collateral Agent's Liens in and to the Collateral, or the
Lender Group's relationship with the Borrower, (i) subject to any applicable
limitations in
Section 9.3(a)
, any Agent's reasonable and documented out-of-pocket costs and expenses
(including reasonable and documented external attorneys' fees) incurred in
advising, structuring, drafting, reviewing, administering (including travel,
meals, and lodging), syndicating (including reasonable costs and expenses
relative to the rating of the Revolving Credit Loans, CUSIP, DXSyndicate",
SyndTrak or other communication costs incurred in connection with a
syndication of the loan facilities), or amending, waiving, or modifying the
Loan Documents, and (j) subject to any applicable limitations in
Sections 9.3(a)
and
(b)
, each Agent's and each Lender's reasonable and documented out-of-pocket costs
and expenses (including reasonable and documented external attorneys,
accountants, consultants, and other advisors fees and expenses) incurred in
terminating, enforcing (including external attorneys, accountants,
consultants, and other advisors fees and expenses incurred in connection with
a "workout," a "restructuring," or an Bankruptcy Event concerning the Borrower
or in exercising rights or remedies under the Loan Documents), or defending
the Loan Documents, irrespective of whether a lawsuit or other adverse
proceeding is brought, or in taking any enforcement action or any remedial
action with respect to the Collateral.
"
Lender Parties
": as defined in
Section 9.16
.
"
Lender-Related Distress Event
": with respect to any Lender, that such Lender or any Person that directly or
indirectly controls such Lender (each, a "
Distressed Person
"), as the case may be, is or becomes subject to a voluntary or involuntary
case with respect to such Distressed Person under any debt relief law, or a
custodian, conservator, receiver, or similar official is appointed for such
Distressed Person or any substantial part of such Distressed Person's assets,
or such Distressed Person, or any Person that directly or indirectly controls
such Distressed Person is subject to a forced liquidation or such Distressed
Person makes a general assignment for the benefit of creditors or is otherwise
adjudicated as, or determined by any Governmental Authority having regulatory
authority over such Distressed Person or its assets to be, insolvent or
bankrupt or such Distressed Person becomes the subject of a Bail-In Action;
provided
that a
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US-DOCS\148017393.28
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Lender-Related Distress Event shall not be deemed to have occurred solely by
virtue of the ownership or acquisition of any Capital Stock in any Lender or
any Person that directly or indirectly controls such Lender by a Governmental
Authority or an instrumentality thereof, so long as such ownership or
acquisition does not result in or provide such Person with immunity from the
jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or
disaffirm any contracts or agreements made by such Person.
"
Lenders
": the Revolving Lenders.
"
Lien
": any mortgage, pledge, hypothecation, collateral assignment, security
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to Real Property, and any
Capitalized Lease having substantially the same economic effect as any of the
foregoing). For the avoidance of doubt, "Lien" shall not be deemed to include
any license or other contractual obligation relating to any intellectual
property rights.
"
Line Cap
": the Aggregate Line Cap, the Non-Residential Line Cap and/or the Residential
Line Cap, as context may require.
"
Liquidity
": the sum of (i) Aggregate Excess Availability,
plus
(ii) Unrestricted Cash.
"
Liquidity Condition
":
(a) each period beginning on the date that the Aggregate Excess Availability
shall have been less than the greater of (x) 15% of the Aggregate Line Cap
(without giving effect to any increase thereof during an Extraordinary Advance
Period) and (y) $31,250,000 for five consecutive Business Days and ending on
the date that the Aggregate Excess Availability shall have been at least the
greater of (x) 15% of the Aggregate Line Cap (without giving effect to any
increase thereof during an Extraordinary Advance Period) and (y) $31,250,000
for 20 consecutive calendar days;
(b) each period beginning on the date that the Non-Residential Excess
Availability shall have been less than the greater of (x) 15% of the
Non-Residential Line Cap (without giving effect to any increase thereof during
an Extraordinary Advance Period) and (y) $23,125,000 for five consecutive
Business Days and ending on the date that the Non-Residential Excess
Availability shall have been at least the greater of (x) 15% of the
Non-Residential Line Cap (without giving effect to any increase thereof during
an Extraordinary Advance Period) and (y) $23,125,000 for 20 consecutive
calendar days; or
(c) each period beginning on the date that the Residential Excess Availability
shall have been less than the greater of (x) 15% of the Residential Line Cap
(without giving effect to any increase thereof during an Extraordinary Advance
Period) and (y) $8,125,000 for five consecutive Business Days and ending on
the date that the Residential Excess Availability shall have been at least the
greater of (x) 15% of the Residential Line Cap (without giving effect to any
increase thereof during an Extraordinary Advance Period) and (y) $8,125,000
for 20 consecutive calendar days. For the avoidance of doubt, any Liquidity
Condition described above shall apply to the Revolving Credit Loans of all
Classes, unless waived by the Required Lenders in accordance with
Section 9.2
hereof
"
Loan
": any Revolving Credit Loan made by any Lender pursuant to this Agreement.
"
Loan Account
": as defined in
Section 2.8
.
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US-DOCS\148017393.28
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"
Loan Documents
": this Agreement, the Security Documents, any Notes, any Extension Amendment,
the Administrative Agent Fee Letter, t
he Co-Collateral Agent Fee Letter,
the Purchase Agreements and any other document executed and delivered in
conjunction with this Agreement or the Purchase Agreements from time to time
and designated as a "Loan Document."
"
Long-Term Borrowing
": a Borrowing that is not a Short-Term Borrowing.
"
Margin Stock
": shall have the meaning assigned to such term in Regulation U of the Board
of Governors of the United States Federal Reserve System, or any successor
thereto.
"
Material Adverse Effect
": any event, change or condition that, individually or in the aggregate, has
had, or would reasonably be expected to have a material adverse effect on (i)
the business, financial condition or results of operations of the Borrower,
(ii) the ability of the Borrower to perform its payment obligations under any
Loan Document to which the Borrower is a party; or (iii) the material rights
and remedies of the Agents and the Lenders under the Loan Documents, including
the legality, validity, binding effect or enforceability of the Loan Documents.
"
Material Adverse Judgments
": one or more judgments or decrees for the payment of money against the
Servicer or any Originator involving a financial liability of $75,000,000 or
more (after giving effect to any applicable insurance coverage, as to which
the relevant insurance company has not denied coverage in writing).
"
Material Debt
": any Indebtedness (other than Indebtedness constituting Obligations) of the
Borrower or the Company and its Subsidiaries in an aggregate principal amount
exceeding $50,000,000.
"
Maturity Date
": (i) the earlier of (x) the Scheduled Maturity Date, and (y) the date that
is 91 days prior to the stated maturity date (such date, the "
Springing Test Date
") of any Material Debt in the form of term loans or debt securities of the
Company or any of its Subsidiaries, unless on the Springing Test Date and each
day thereafter until the relevant Material Debt is paid in full in cash,
either (A) the Company and its Subsidiaries (other than the Borrower)
collectively hold Unrestricted Cash in an amount sufficient to pay all
principal, interest, fees and other amounts outstanding relating to such
Material Debt (which amounts shall be and remain reserved and segregated until
applied to the repayment of such Material Debt) or (B) sufficient Aggregate
Excess Availability exists to (I) take Eligible Reserves (and such Eligible
Reserves have been taken) against the Aggregate Borrowing Base in an amount
equal to all principal, interest, fees and other amounts outstanding relating
to such Material Debt, and (II) maintain
pro forma
Aggregate Excess Availability after giving effect to
clause (I)
equal to or greater than $50,000,000; and (ii) with respect to any Extended
Revolving Credit Commitments created pursuant to
Section 2.22
, the date specified in the applicable Extension Amendment.
"
Moody's
": Moody's Investor Services, Inc., or any successor by merger or
consolidation to its business.
"
Multiemployer Plan
": a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"
Net Income
": with respect to any person, the net income (loss) of such person,
determined in accordance with Applicable Accounting Principles and before any
reduction in respect of preferred stock dividends.
"
Non-Affected Tranche
": as defined in
Section 2.1(d)
.
"
Non-Consenting Lender
": as defined
Section 2.18(a)
.
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US-DOCS\148017393.28
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"
Non-Defaulting Lender
": a Lender that is not a Defaulting Lender.
"
Non-Financed Capital Expenditures
": Capital Expenditures that (a) are not financed with the proceeds of any
Indebtedness, the proceeds of any sale or issuance of equity interests of, or
equity contributions to, the Company or the Borrower, the proceeds of any
Disposition (including any substantially contemporaneous trade-in of assets)
and (b) are not reimbursed by a third person (excluding the Company or any of
its Subsidiaries).
"
Non-Residential Account
": any Account other than a Residential Account.
"
Non-Residential Borrowing Base
": at any time, an amount equal to (a) with respect to Billed Eligible
Non-Residential Accounts (i) 90% of the outstanding balance of such Billed
Eligible Non-Residential Accounts as of such time that are owed by Account
Debtors that have an Investment Grade Rating, and (ii) 85% of the outstanding
balance of such Billed Eligible Non-Residential Accounts as of such time that
are owed by Account Debtors that do not have an Investment Grade Rating,
plus
(b) with respect to Eligible Non-Residential Accounts that are not Billed
Eligible Non-Residential Accounts, 80% of the outstanding balance of such
Eligible Non-Residential Accounts as of such time (
provided
,
however
,
that Eligible Non-Residential Accounts under this
clause (b)
shall not exceed, at any time, 50% of the Non-Residential Borrowing Base)
minus
(c) the amount of all Eligible Reserves in respect of the Non-Residential
Borrowing Base in effect as of such date of determination, as the same may at
any time and from time to time be established. The Non-Residential Borrowing
Base at any time shall be determined by reference to the most recent Borrowing
Base Certificate delivered to the Administrative Agent pursuant to
Section 5.1(c).
"
Non-Residential Excess Availability
": as of any date of determination, the amount by which (a) the Non-Residential
Line Cap (without giving effect to any increase thereof during an
Extraordinary Advance Period) as of such date exceeds (b) the Total Tranche B
Revolving Credit Exposure as of such date.
"
Non-Residential Line Cap
": at any time, the lesser of (i) 100% (or, during an Extraordinary Advance
Period, 105%) of the Non-Residential Borrowing Base at such time and (ii) the
Total Tranche B Revolving Credit Commitments in effect at such time.
"
Note
": any promissory note evidencing any Loan substantially in the form of
Exhibit E
.
"
Obligations
": the unpaid principal of and interest on (including interest accruing after
the maturity of the Loans (including Extraordinary Advances) and interest
accruing after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed or allowable in such proceeding) the Loans and all other obligations
and liabilities of the Borrower or Intermediate SPV to any Agent or to any
Lender or any Qualified Counterparty, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement or any other
Loan Document, whether on account of principal, interest, reimbursement
obligations, fees, Lender Group Expenses (including all fees, charges and
disbursements of counsel to any Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto and all fees, costs or expenses accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition fees, costs or
expenses are allowed or allowable in such proceedings) and any Cash Management
Obligations;
provided
that (i) obligations of the Borrower under any Cash Management Obligations
shall be secured and guaranteed pursuant to the Security Documents only to the
extent that, and for so long as, the other Obligations are so secured and
guaranteed (except as otherwise contemplated by
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US-DOCS\148017393.28
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Section 6.4 of the Borrower Collateral Agreement) and (ii) any release of
Collateral effected in the manner permitted by this Agreement or any Security
Document shall not require the consent of holders of any Cash Management
Obligations.
"
OFAC
": the Office of Foreign Assets Control of the U.S. Department of Treasury.
"
Organization Documents
": (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive
documents with respect to any non-U.S. jurisdiction); (b) with respect to any
limited liability company, the certificate or articles of formation or
organization and operating agreement; and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the applicable Governmental
Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such
entity.
"
Original Revolving Credit Facility
": the Total Tranche A Revolving Commitments and the Loans made thereunder,
together with the Total Tranche B Revolving Commitments and the Loans made
thereunder.
"
Originating Class
": as defined in
Section 2.22(a)
.
"
Originator
" or "
Originators
": as defined in the recitals hereto.
"
Other Connection Taxes
": with respect to any Agent or any Lender, Taxes imposed as a result of a
present or former connection between such recipient and the jurisdiction
imposing such Tax (other than a connection 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
": all present or future stamp, court or documentary, intangible, recording,
filing or similar Taxes arising from any payment made under any Loan Document
or from the execution, delivery, performance, enforcement or registration of,
from the receipt or perfection of a security interest under, or otherwise with
respect to this Agreement or any other Loan Document, except any such Taxes
that are Other Connection Taxes imposed with respect to an assignment (other
than an assignment made pursuant to
Section 2.18
).
"
Overadvance
" means, as of any date of determination, that the Aggregate Excess
Availability is less than any of the limitations set forth in
Section 2.2
of this Agreement.
"
Participant
": as defined in
Section 9.4(c)
.
"
Participant Register
": as defined in
Section 9.4(c)
.
"
PATRIOT Act
": Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001).
"
Payment
": as defined in
Section 8.10(a)
.
"
Payment Conditions
": with respect to any transaction:
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US-DOCS\148017393.28
-------------------------------------------------------------------------------
(a) no Event of Default has occurred and is continuing;
(b) Specified Non-Residential Excess Availability for each day in the 30
consecutive calendar days immediately preceding such transaction, and on the
date of such proposed transaction, would be equal to or greater than the
greater of (x) 15% of the Non-Residential Line Cap then in effect, and (y)
$23,125,000, on a
pro forma
basis;
(c) Specified Residential Excess Availability for each day in the 30
consecutive calendar days immediately preceding such transaction, and on the
date of such proposed transaction, would be equal to or greater than the
greater of (x) 15% of the Residential Line Cap then in effect, and (y)
$8,125,000, on a
pro forma
basis; and
(d) the Consolidated Fixed Charge Coverage Ratio (calculated on a
pro forma
basis) is greater than or equal to 1.00:1.00 as of the last day of the most
recent Test Period;
provided
,
however
, that the condition set forth in this
clause (d)
shall not be applicable if (i) Specified Non-Residential Excess Availability
for each day in the 30 consecutive calendar days immediately preceding such
transaction, and on the date of such proposed transaction, would be equal to
or greater than the greater of (x) 25% of the Non-Residential Line Cap then in
effect, and (y) $37,000,000, on a
pro forma
basis, and (ii) Specified Residential Excess Availability for each day in the
30 consecutive calendar days immediately preceding such transaction, and on
the date of such proposed transaction, would be equal to or greater than the
greater of (x) 25% of the Residential Line Cap then in effect, and (y)
$13,000,000, on a
pro forma
basis.
"
Payment Notice
": as defined in
Section 8.10(b)
.
"
Payment Recipient
": as defined in
Section 8.10(a)
.
"
PBGC
": the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
"
Pension Plan
": 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 the Borrower or any ERISA Affiliate
or to which the Borrower 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
during the immediately preceding five plan years.
"
Periodic Term SOFR Determination Day
": as defined in the definition of "Term SOFR."
"
Permitted Discretion
": reasonable (from the perspective of a secured asset-based lender) credit
judgment exercised in good faith in accordance with customary business
practices of the Collateral Agent and the Co-Collateral Agent for comparable
asset-based lending transactions.
"
Permitted Liens
": the collective reference to Liens permitted by
Section 6.3
.
"
Permitted Payment
": as defined in
Section 6.6(a)
.
"
Permitted Tax Distributions
": with respect to each taxable year (or portion thereof) ending after the
Closing Date, the payment of distributions by the Borrower to the Intermediate
SPV or the Company to fund the income Tax liability of the Company, in an
aggregate amount not to exceed the product of (i) the
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US-DOCS\148017393.28
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net taxable income of the Company attributable to the Accounts, and (ii) the
highest maximum combined marginal U.S. federal, state and local corporate
income tax rate applicable to the Company (taking into account the character
of the taxable income in question (long-term capital gain, qualified dividend
income, etc.), the deductibility of state and local income taxes for U.S.
federal income tax purposes (and any applicable limitation thereon), and any
loss carryovers)).
"
Person
": any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
"
Plan
": any "employee benefit plan" as defined in Section 3(3) of ERISA, other than
a Multiemployer Plan, that is subject to ERISA and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4062 or Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"
Platform
": Debt Domain, Intralinks, SyndTrak, DebtX or a substantially similar
electronic transmission system.
"
Pool Assets
": (i) all Pool Receivables, (ii) all Related Security with respect to such
Pool Receivables, (iii) all Collections with respect to such Pool Receivables,
(iv) the Intermediate Accounts, the Borrower Accounts and all amounts on
deposit in the Borrower Accounts and the Intermediate Accounts (other than
Excluded Amounts), and all certificates and instruments, if any, from time to
time evidencing such Intermediate Accounts and Borrower Accounts, and amounts
on deposit therein, (v) all rights (but none of the obligations) of
Intermediate SPV under the Intermediate Purchase Agreement, and the Borrower
under the Borrower Purchase Agreement, (vi) all proceeds of, and all amounts
received or receivable under any or all of, the foregoing and (vii) all of the
Borrower's other property.
"
Pool Receivables
": as defined in the Borrower Purchase Agreement.
"
Pro Rata Share
": 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 relevant Revolving Credit Commitment and the denominator of
which is the amount of the Total Tranche A Revolving Credit Commitments, Total
Tranche B Revolving Credit Commitments or Extended Revolving Credit
Commitment, as applicable, at such time;
provided
that, if such Revolving Credit Commitments have been terminated, then the Pro
Rata Share of each Lender shall be determined based on the Pro Rata Share of
such Lender immediately prior to such termination and after giving effect to
any subsequent assignments made pursuant to the terms hereof.
"
Property
": any right or interest in or to property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible, including Capital
Stock.
"
Protective Advances
": as defined in
Section 2.2(c)(i)
.
"
PTE
": a prohibited transaction class exemption issued by the U.S. Department of
Labor, as any such exemption may be amended from time to time.
"
PUC
": the Hawaii Public Utilities Commission.
"
PUC Final Order
": the final and non-provisional order issued by the PUC and satisfactory to
the Company in its sole but nonarbitrary discretion, substantially consistent
with the PUC Initial Order and approving the extension of the Scheduled
Maturity Date as set forth in
clause (ii)
of the definition thereof.
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US-DOCS\148017393.28
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"
PUC Initial Order
": the final and non-provisional order issued by the PUC and satisfactory to
the Company in its sole but nonarbitrary discretion, approving: (i) the
incorporation of Intermediate SPV and the Borrower, (ii) the sale of customer
accounts receivable by the Originators to Intermediate SPV pursuant to the
Intermediate Purchase Agreement, and by Intermediate SPV to the Borrower
pursuant to the Borrower Purchase Agreement, (iii) the transfer from the
Originators to Intermediate SPV of all deposit accounts where the collection
of customer Accounts has been historically received, and the subsequent
transfer of amounts received in such Intermediate Accounts to the Borrower
Accounts, (iv) the execution of this Agreement and the other Loan Documents
and the security interests created thereby, (v) any necessary cost recovery
requested by the Company, and (vi) all such other related and associated
requests in the Company's application.
"
Purchase Agreements
": as defined in the recitals hereto.
"
QFC Credit Support
": as defined in
Section 9.19
.
"
Qualified Capital Stock
": Capital Stock that is not Disqualified Capital Stock.
"
Qualified Counterparty
": with respect to any Cash Management Obligations, any counterparty thereto
that, at the time such Cash Management Obligations were entered into or, in
the case of Cash Management Obligations existing on the Closing Date, on the
Closing Date, was an Agent, a Lender or an Affiliate of any of the foregoing,
regardless of whether any such Person shall thereafter cease to be an Agent, a
Lender or an Affiliate of any of the foregoing.
"
Ratings Condition A
": the Company shall have either a (a) public corporate family credit rating
(or the equivalent), or (b) facility credit ratings specific for the Original
Revolving Credit Facility, in either case equal to or higher than (i) Ba3
(stable) (or the equivalent) or (ii) BB- (stable) (or the equivalent), by any
two of S&P, Fitch and Moody's.
"
Ratings Condition B
": the Company shall have either a (a) public corporate family credit rating
(or the equivalent), or (b) facility credit ratings specific for the Original
Revolving Credit Facility, in either case equal to or higher than (i) Ba1
(stable) (or the equivalent) or (ii) BB+ (stable) (or the equivalent), by any
two of S&P, Fitch and Moody's.
"
Real Property
": collectively, all right, title and interest (including any leasehold,
mineral or other estate) in and to any and all parcels of or interests in real
property owned or leased by any Person, whether by lease, license or other
means, together with, in each case, all easements, hereditaments and
appurtenances relating thereto, and all improvements and appurtenant fixtures
thereto.
"
Reallocation
": as defined in
Section 2.12(a)
.
"
Reallocation Consent
": as defined in
Section 2.12(b)
.
"
Reallocation Date
": as defined in
Section 2.12(a)
.
"
Register
": as defined in
Section 9.4(b)(iv)
.
"
Related Parties
": with respect to any specified Person, such Person's Affiliates and the
respective directors, officers, employees, partners, members, trustees,
managers, controlling persons, agents, advisors and other representatives of
such Person and such Person's Affiliates and the respective successors and
permitted assigns of each of the foregoing.
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"
Related Rights
": as defined in the Purchase Agreements.
"
Related Security
": as defined in the Purchase Agreements.
"
Release
": any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing or migrating in, into, onto
or through the Environment or from or through any facility, property or
equipment to the Environment.
"
Relevant Governmental Body
": the Federal Reserve Board or the Federal Reserve Bank of New York, or a
committee officially endorsed or convened by the Federal Reserve Board or the
Federal Reserve Bank of New York, or any successor thereto.
"
Replacement Lender
": as defined in
Section 2.11(b)
.
"
Required Lenders
": at any time, the holders of more than 50.0% of the Total Revolving Credit
Commitments then in effect;
provided
that the Revolving Credit Exposure and Revolving Credit Commitment of any
Defaulting Lender shall be disregarded in making any determination under this
definition.
"
Reserves
": reserves, if any, established against the applicable Borrowing Base
including (but without duplication), (i) potential dilution related to
Accounts;
provided
that no Reserves shall be imposed on the first (x) in the case of Accounts
with an Investment Grade Rating, 2.5% and (y) in the case of all other
Accounts, 5%, in each case, of dilution of Accounts and thereafter no dilution
Reserve shall exceed 1% for each incremental whole percentage in dilution over
2.5% or 5%, as applicable, (ii) sums that the Borrower are or will be required
to pay (such as Taxes, assessments and insurance premiums) and have not yet
paid, (iii) amounts owing by the Borrower to any Person to the extent secured
by a Lien on, or trust over, any Collateral, (iv) the full amount of any
liabilities or amounts which rank or are capable of ranking in priority to the
Collateral Agent's Liens and/or for amounts which may represent costs relating
to the enforcement of such Liens including, (a) the expenses and liabilities
incurred by any administrator (or other insolvency officer) and any
remuneration of such administrator (or other insolvency officer) and (b)
amounts subject to First Priority Priming Liens, (v) royalties owed by the
Borrower, (vi) customer deposits and advances, (vii) with respect to Cash
Management Obligations, (viii) with respect to Servicing Fees and Servicing
Expenses (each, as defined under the Purchase Agreements), and (ix) such other
events, conditions or contingencies as to which the Collateral Agent and the
Co-Collateral Agent, in their Permitted Discretion, determine reserves should
be established (without duplication of any reserves established pursuant to
foregoing
clauses (i)
through
(viii)
) from time to time hereunder.
"
Residential Account
": any Account arising from residential electricity consumption.
"
Residential Borrowing Base
": at any time, an amount equal to (a) with respect to Billed Eligible
Residential Accounts, 85% of their outstanding balance,
plus
(b) with respect to Eligible Residential Accounts that are not Billed Eligible
Residential Accounts, 80% of the outstanding balance of such Eligible
Residential Accounts as of such time (
provided
,
however
,
that Eligible Residential Accounts under this
clause (b)
shall not exceed, at any time, 50% of the Residential Borrowing Base)
minus
(c) the amount of all Eligible Reserves in respect of the Residential
Borrowing Base in effect as of such date of determination, as the same may at
any time and from time to time be established. The Residential Borrowing Base
at any time shall be determined by reference to the most recent Borrowing Base
Certificate delivered to the Administrative Agent pursuant to
Section 5.1(c).
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US-DOCS\148017393.28
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"
Residential Excess Availability
": as of any date of determination, the amount by which (a) the Residential
Line Cap (without giving effect to any increase thereof during an
Extraordinary Advance Period) as of such date exceeds (b) the Total Tranche A
Revolving Credit Exposure as of such date.
"
Residential Line Cap
": at any time, the lesser of (i) 100% (or, during an Extraordinary Advance
Period, 105%) of the Residential Borrowing Base at such time and (ii) the
Total Tranche A Revolving Credit Commitments in effect at such time.
"
Resolution Authority
": an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK Resolution Authority.
"
Responsible Officer
": the chief executive officer, president, vice president, chief financial
officer, chief administrative officer, secretary or assistant secretary,
treasurer or assistant treasurer, controller or other similar officer of any
Person or any other Responsible Officer or employee of such Person designated
in or pursuant to an agreement between such Person and the Administrative
Agent. Any document delivered hereunder that is signed by a Responsible
Officer of the Borrower shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of the
Borrower and such Responsible Officer shall be conclusively presumed to have
acted on behalf of the Borrower.
"
Restricted Cash
": Cash and Cash Equivalents held by the Borrower that are contractually
restricted from being distributed to Intermediate SPV or the Company, other
than pursuant to any Loan Document.
"
Restricted Payments
": any dividend or other distribution (whether in cash, securities or other
property) with respect to any Capital Stock of any Person, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such Capital
Stock, or on account of any return of capital to such Person's stockholders,
partners or members (or the equivalent Persons thereof).
"
Revolving Credit Borrowing
": a Borrowing comprised of Revolving Credit Loans.
"
Revolving Credit Commitment
": a Tranche A Revolving Credit Commitment, a Tranche B Revolving Credit
Commitment or an Extended Revolving Credit Commitment.
"
Revolving Credit Exposure
": as of any date of determination, shall be the sum of such Lender's
Revolving Credit Loans as of such date.
"
Revolving Credit Facility
": the collective reference to (i) the Tranche A Revolving Credit Commitments
and the extensions of credit made thereunder, (ii) the Tranche B Revolving
Credit Commitments and the extensions of credit made thereunder and (iii) any
Extended Revolving Credit Commitments.
"
Revolving Credit Loan
": a Tranche A Loan, a Tranche B Loan, an Extraordinary Advance and/or any
Loan made pursuant to an Extended Revolving Credit Commitment, as context may
require. Each Revolving Credit Loan shall be a SOFR Loan or a Base Rate Loan.
"
Revolving Lender
": at any time, any Person that holds (a) a Revolving Credit Commitment
(including any Tranche A Revolving Credit Commitment, any Tranche B Revolving
Credit Commitment and any Extended Revolving Credit Commitment) or (b) a
Revolving Credit Loan and any other Person that shall have become a party
hereto as a Revolving Lender pursuant to an Assignment and Assumption, other
than any such Person that ceases to be a party hereto as a Revolving Lender
pursuant to an Assignment and Assumption.
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US-DOCS\148017393.28
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"
S&P
": Standard & Poor's Financial Services LLC, a subsidiary of S&P Global Inc.,
or any successor by merger or consolidation to its business.
"
Sanctioned Country
": at any time, a country, region or territory which is itself, or whose
government is, the target of any country-wide or territory-wide Sanctions (as
of the Closing Date, the so-called Donetsk People's Republic, the so-called
Luhansk People's Republic, the Crimea Region of Ukraine, Cuba, Iran, North
Korea and Syria).
"
Sanctioned Person
": at any time, (a) any Person listed in any Sanctions-related list of
designated Persons maintained by the United States, including OFAC, and the
U.S. Department of State, the United Nations Security Council, the European
Union, any Member State of the European Union, or the United Kingdom or any
other Sanctions-related list maintained by any Governmental Authority, (b) any
Person operating, organized or resident in a Sanctioned Country, (c) the
government of a Sanctioned Country or the Government of Venezuela, (d) any
Person 50% or more owned or controlled by any such Person or Persons described
in the foregoing
clauses (a)
,
(b)
or
(c)
, or
(e)
any Person with which the Company is prohibited under Sanctions from dealing
or engaging in transactions.
"
Sanctions
": economic or financial sanctions or trade embargoes imposed, administered or
enforced from time to time by (a) the U.S. government, including those
administered by OFAC, the U.S. Department of State, the U.S. Department of
Commerce, or through any existing executive order or (b) the United Nations
Security Council, the European Union, any Member State of the European Union,
or the United Kingdom.
"
Scheduled Maturity Date
": (i) the date that is 364 days after the Effective Date or (ii) if the PUC
Final Order is issued on or prior to the date in
clause (i)
hereof, the date that is the third anniversary of the Effective Date.
"
Secured Parties
": as defined in the Borrower Collateral Agreement.
"
Securities Act
": the Securities Act of 1933, as amended.
"
Security Documents
": the collective reference to (a) the Borrower Collateral Agreement, (b) any
Cash Management Control Agreements, (c) the Intermediate Collateral Agreement,
(d) the Intermediate Pledge Agreement and (e) all other security documents
entered into pursuant to this Agreement or any other Loan Document governed by
the laws of the United States or any state or other political sub-division
thereof hereafter delivered to the Collateral Agent granting (or purporting to
grant) a Lien on any Property of the Borrower or Intermediate SPV to secure
any Obligations.
"
Servicer
": as defined in the recitals hereto.
"
Settlement
": as defined in
Section 2.2(d)(i)
.
"
Settlement Date
": as defined in
Section 2.2(d)(i)
.
"
Short-Term Borrowing
": each Borrowing designated as a Short-Term Borrowing by the Borrower in the
applicable Borrowing Request.
"
Short-Term Borrowing Repayment Date
": with respect to any Short-Term Borrowing, the earlier of (i) the date that
is 364 days after the Funding Date thereof, or (ii) the Maturity Date.
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US-DOCS\148017393.28
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"
SOFR
": a rate equal to the secured overnight financing rate as administered by the
SOFR Administrator.
"
SOFR Administrator
": the Federal Reserve Bank of New York (or a successor administrator of the
secured overnight financing rate).
"
SOFR Deadline
": as defined in
Section 2.10(b)(i)
.
"
SOFR Loan
": a Loan that bears interest at a rate based on Term SOFR, other than, in
each case, pursuant to
clause (c)
of the definition of "Base Rate".
"
SOFR Notice
": a written notice in the form of
Exhibit D
to this Agreement.
"
SOFR Option
": as defined in
Section 2.10
.
"
Solvent
" and "
Solvency
": with respect to a Person, after giving effect to the transactions hereunder
and under the Purchase Agreements and the incurrence of the indebtedness and
obligations being incurred in connection therewith, that on such date (i) the
sum of the debt (including contingent liabilities) of such Person and its
Subsidiaries, taken as a whole, does not exceed the present fair saleable
value (on a going concern basis) of the assets of such Person and its
Subsidiaries, taken as a whole; (ii) the capital of such Person and its
Subsidiaries, taken as a whole, is not unreasonably small in relation to the
business of such Person and its Subsidiaries, taken as a whole; and (iii) such
Person and its Subsidiaries, taken as a whole, do not intend to incur, or
believe that they will incur, debts including current obligations beyond their
ability to pay such debt as they mature in the ordinary course of business.
For the purposes hereof, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability (irrespective of whether
such contingent liabilities meet the criteria for accrual under Statement of
Financial Accounting Standard No. 5).
"
Specified Non-Residential Excess Availability
": the sum of (a) Non-Residential Excess Availability at such time
plus
(b) Suppressed Non-Residential Availability (which shall not be less than
zero) at such time.
"
Specified Residential Excess Availability
": the sum of (a) Residential Excess Availability at such time
plus
(b) Suppressed Residential Availability (which shall not be less than zero) at
such time.
"
Springing Test Date
": as defined in the definition of "Maturity Date."
"
Subsidiary
": of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity (excluding, for the avoidance of
doubt, any charitable organizations, and any other Person that meets the
requirements of Section 501(c)(3) of the Code) of which (i) a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, (ii) more than half of the issued share
capital is at the time beneficially owned or (iii) the management of which is
otherwise controlled, directly or indirectly, through one or more
intermediaries, or both, by such Person.
"
Supermajority Required Lenders
": at any time, with respect to any Tranche, the holders of more than 66.67%
of the Total Tranche A Revolving Credit Commitments then in effect or Total
Tranche B Revolving Credit Commitments then in effect, as applicable, or, if
the Tranche A Revolving Credit Commitments or the Tranche B Revolving Credit
Commitments have been terminated, the Total Tranche
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US-DOCS\148017393.28
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A Revolving Credit Exposure or the Total Tranche B Revolving Credit Exposure,
as applicable;
provided
that (i) in the event that there are less than three (3) unaffiliated Lenders
of a Class, the Supermajority Required Lenders shall be all Lenders of such
Class, and (ii) the Revolving Credit Exposure and Revolving Credit Commitment
of any Defaulting Lender shall be disregarded in making any determination
under this definition.
"
Supported QFC
": as defined in
Section 9.19
.
"
Suppressed Non-Residential Availability
": an amount, if positive, by which the Non-Residential Borrowing Base exceeds
the Total Tranche B Revolving Credit Commitments;
provided
that, for purposes of calculating Specified Non-Residential Excess
Availability, Suppressed Non-Residential Availability shall not exceed 5% of
the Non-Residential Line Cap.
"
Suppressed Residential Availability
": an amount, if positive, by which the Residential Borrowing Base exceeds the
Total Tranche A Revolving Credit Commitments;
provided
that, for purposes of calculating Specified Residential Excess Availability,
Suppressed Residential Availability shall not exceed 5% of the Residential
Line Cap.
"
Swap Obligation
": with respect to the Borrower, any obligation to pay or perform under any
agreement, contract or transaction that constitutes a "swap" within the
meaning of section 1a(47) of the Commodity Exchange Act.
"
Swap Termination Value
": in respect of any one or more Swap Obligations, after taking into account
the effect of any legally enforceable netting agreement relating to such Swap
Obligations, (a) for any date on or after the date such Swap Obligations 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
Obligations, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Obligations (which may include a Lender or any Affiliate of a Lender).
"
Tax Lender
": as defined
Section 2.18(a)
.
"
Taxes
": all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholdings), assessments, fees or other
charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
"
Term SOFR
":
(a) for any calculation with respect to a SOFR Loan, the Term SOFR
Reference Rate for a tenor comparable to the applicable Interest Period on the
day (such day, the "
Periodic Term SOFR Determination Day
") that is two U.S. Government Securities Business Days prior to the first day
of such Interest Period, as such rate is published by the Term SOFR
Administrator,
plus
the Applicable SOFR Adjustment;
provided
,
however
,
that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR
Determination Day the Term SOFR Reference Rate for the applicable tenor has
not been published by the Term SOFR Administrator and a Benchmark Replacement
Date with respect to the Term SOFR Reference Rate has not occurred, then Term
SOFR will be the Term SOFR Reference Rate for such tenor as published by the
Term SOFR Administrator on the first preceding U.S. Government Securities
Business Day for which such Term SOFR Reference Rate for such tenor was
published by the Term SOFR Administrator so long as such first preceding U.S.
Government Securities Business Day is not more than three U.S. Government
Securities Business Days prior to such Periodic Term SOFR Determination Day,
and
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US-DOCS\148017393.28
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(b) for any calculation with respect to a Base Rate Loan on any day, the
Term SOFR Reference Rate for a tenor of one month on the day (such day, the "
Base Rate Term SOFR Determination Day
") that is two U.S. Government Securities Business Days prior to such day, as
such rate is published by the Term SOFR Administrator,
plus
the Applicable SOFR Adjustment;
provided
,
however
,
that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR
Determination Day the Term SOFR Reference Rate for the applicable tenor has
not been published by the Term SOFR Administrator and a Benchmark Replacement
Date with respect to the Term SOFR Reference Rate has not occurred, then Term
SOFR will be the Term SOFR Reference Rate for such tenor as published by the
Term SOFR Administrator on the first preceding U.S. Government Securities
Business Day for which such Term SOFR Reference Rate for such tenor was
published by the Term SOFR Administrator so long as such first preceding U.S.
Government Securities Business Day is not more than three U.S. Government
Securities Business Days prior to such Base Rate Term SOFR Determination Day;
provided
,
further
,
that if Term SOFR determined as provided above (including pursuant to the
proviso under
clause (a)
or
clause (b)
above) shall ever be less than the Floor, then Term SOFR shall be deemed to be
the Floor.
"
Term SOFR Administrator
": the CME Group Benchmark Administration Limited (CBA) (or a successor
administrator of the Term SOFR Reference Rate selected by the Funding Agent in
consultation with the Administrative Agent).
"
Term SOFR Reference Rate
": the rate
per annum
determined by the Funding Agent as the forward-looking term rate based on SOFR.
"
Test Period
": on any date of determination, the period of four consecutive Fiscal
Quarters (or, during the continuance of a Covenant Trigger Event, 12
consecutive Fiscal Months) of the Company then most recently ended for which
financial statements have been delivered, taken as one accounting period.
"
Ticking Fee
": fees payable on the Revolving Credit Commitments pursuant to
Section 2.9(d)
.
"
Ticking Fee Rate
": 0.500%
per annum
.
"
Total Revolving Credit Commitments
": as of any date of determination, the sum of the Total Tranche A Revolving
Credit Commitments, the Tranche B Revolving Credit Commitments and any
Extended Revolving Credit Commitments.
"
Total Revolving Credit Exposure
": as of any date of determination, the sum of the Total Tranche A Revolving
Credit Exposure, the Total Tranche B Revolving Credit Exposure and any
Revolving Credit Exposure in respect of Extended Revolving Credit Commitments.
"
Total Tranche A Revolving Credit Commitment
": as of any date of determination, the aggregate amount of the Tranche A
Revolving Credit Commitments then in effect. As of the Closing Date, Total
Tranche A Revolving Credit Commitments equal $65,000,000.
"
Total Tranche A Revolving Credit Exposure
": as of any date of determination, the aggregate amount of the Tranche A
Revolving Credit Exposure of all Tranche A Lenders outstanding as of such date.
"
Total Tranche B Revolving Credit Commitment
": as of any date of determination, the aggregate amount of the Tranche B
Revolving Credit Commitments then in effect. As of the Closing Date, Total
Tranche B Revolving Credit Commitments equal $185,000,000.
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US-DOCS\148017393.28
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"
Total Tranche B Revolving Credit Exposure
": as of any date of determination, the aggregate amount of the Tranche B
Revolving Credit Exposure of all Tranche B Lenders outstanding as of such date.
"
Trading with the Enemy Act
": the Trading with the Enemy Act of the United States, codified at 12 U.S.C.
(s)(s) 95a-95b and 50 U.S.C. App. (s)(s) 1-44.
"
Tranche
": either the Tranche A Revolving Credit Commitments, or the Tranche B
Revolving Credit Commitments, in each case together with any Extended Classes
that arise from such Tranche as the Originating Class.
"
Tranche A Lender
": at any time, any Person that holds (a) a Tranche A Revolving Credit
Commitment (including any Extended Revolving Credit Commitment in respect of
Tranche A Revolving Credit Commitment) or (b) a Tranche A Loan and any other
Person that shall have become a party hereto as a Tranche A Lender pursuant to
an Assignment and Assumption, other than any such Person that ceases to be a
party hereto as a Tranche A Lender pursuant to an Assignment and Assumption.
The Tranche A Lenders on the Closing Date shall be set forth on Part A of
Schedule 2.1
.
"
Tranche A Loan
": a Loan made by a Lender pursuant to
Section 2.1(a)(i)
. Each Tranche A Loan shall be a SOFR Loan or a Base Rate Loan.
"
Tranche A Revolving Credit Commitment
": as to any Tranche A Lender, the obligation of such Lender, if any, to make
Tranche A Loans pursuant to
Section 2.1(a)(i)
, expressed as an amount representing the maximum aggregate permitted amount
of such Lender's Tranche A Revolving Credit Exposure hereunder, in an
aggregate principal and/or face amount not to exceed the amount set forth
under the heading "Tranche A Revolving Credit Commitment" opposite such
Lender's name on
Schedule 2.1
or, as the case may be, in the Assignment and Assumption pursuant to which
such Lender became a party hereto, in each case as the same may be changed
from time to time pursuant to the terms hereof.
"
Tranche A Revolving Credit Exposure
": as to each Tranche A Lender, as of any date of determination, the sum of
such Tranche A Lender's Tranche A Loans as of such date.
"
Tranche B Lender
": at any time, any Person that holds (a) a Tranche B Revolving Credit
Commitment (including any Extended Revolving Credit Commitment in respect of
Tranche B Revolving Credit Commitment) in respect of Tranche B Loans or (b) a
Tranche B Loan and any other Person that shall have become a party hereto as a
Tranche B Lender pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto as a Tranche B Lender pursuant to an
Assignment and Assumption. The Tranche B Lenders on the Closing Date shall be
set forth on Part B of
Schedule 2.1
.
"
Tranche B Loan
": a Loan made by a Lender pursuant to
Section 2.1(a)(ii)
. Each Tranche B Loan shall be a SOFR Loan or a Base Rate Loan.
"
Tranche B Revolving Credit Commitment
": as to any Tranche B Lender, the obligation of such Lender, if any, to make
Tranche B Loans pursuant to
Section 2.1(a)(ii)
, expressed as an amount representing the maximum aggregate permitted amount
of such Lender's Tranche B Revolving Credit Exposure hereunder, in an
aggregate principal and/or face amount not to exceed the amount set forth
under the heading "Tranche B Revolving Credit Commitment" opposite such
Lender's name on
Schedule 2.1
or, as the case may be, in the Assignment and Assumption pursuant to which
such Lender became a party hereto, in each case as the same may be changed
from time to time pursuant to the terms hereof.
"
Tranche B Revolving Credit Exposure
": as to each Tranche B Lender, as of any date of determination, the sum of
such Tranche B Lender's Tranche B Loans as of such date.
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"
Tranche Deficit
": as defined in
Section 2.1(d)
.
"
Type
": when used in reference to any Loan or Borrowing, refers to whether the rate
of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to Term SOFR or Base Rate.
"
UCC
" or "
Uniform Commercial Code
": 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 United States jurisdiction, to the extent it may be
required to apply to any item or items of Collateral.
"
UK Financial Institution
": any BRRD Undertaking (as such term is defined under the PRA Rulebook (as
amended from time to time) promulgated by the United Kingdom Prudential
Regulation Authority) or any person falling within IFPRU 11.6 of the FCA
Handbook (as amended from time to time) promulgated by the United Kingdom
Financial Conduct Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit institutions or
investment firms.
"
UK Resolution Authority
": the Bank of England or any other public administrative authority having
responsibility for the resolution of any UK Financial Institution.
"
Unadjusted Benchmark Replacement
": the applicable Benchmark Replacement excluding the related Benchmark
Replacement Adjustment.
"
United States
" and "
US
": the United States of America.
"
Unrestricted Cash
": Cash and Cash Equivalents that do not constitute Restricted Cash.
"
U.S. Dollars
" and "
$
": lawful currency of the United States.
"
U.S. Government Securities Business Day
": any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which
the Securities Industry and Financial Markets Association, or any successor
thereto, recommends that the fixed income departments of its members be closed
for the entire day for purposes of trading in United States government
securities;
provided
that, for purposes of notice requirements in
Section 2.2(a)
,
2.2(b)
and
2.10(b)
, in each case, such day is also a Business Day.
"
U.S. Person
": any Person that is a "United States person" as defined in Section
7701(a)(30) of the Code.
"
U.S. Special Resolution Regimes
": as defined in
Section 9.19
.
"
U.S. Tax Compliance Certificate
": as defined in
Section 2.16(e)(ii)(B)(3)
.
"
Volcker Rule
": as defined in
Section 3.9(c)
.
"
Wholly Owned Subsidiary
": of any person shall mean a subsidiary of such person, all of the Capital
Stock of which (other than directors' qualifying shares or nominee or other
similar shares required pursuant to applicable law) are owned by such person
or another Wholly Owned Subsidiary of such person. Unless the context
otherwise requires, "Wholly Owned Subsidiary" shall mean a Subsidiary of the
Company that is a Wholly Owned Subsidiary of the Company.
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"
Withdrawal Liability
": liability to 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.
"
Write-Down and Conversion Powers
": (a) with respect to any EEA Resolution Authority, the write-down and
conversion powers of such EEA Resolution Authority from time to time under the
Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule,
and (b) with respect to the United Kingdom, any powers of the applicable
Resolution Authority under the Bail-In Legislation to cancel, reduce, modify
or change the form of a liability of any UK Financial Institution or any
contract or instrument under which that liability arises, to convert all or
part of that liability into shares, securities or obligations of that person
or any other person, to provide that any such contract or instrument is to
have effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under that
Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.2
Other Definitional Provisions
(a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, unless otherwise
specified herein or in such other Loan Document:
(i) the words "hereof," "herein" 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 of thereof;
(ii) Section, Schedule and Exhibit references refer to (A) the appropriate
Section, Schedule or Exhibit in this Agreement or (B) to the extent such
references are not present in this Agreement, to the Loan Document in which
such reference appears;
(iii) the words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(iv) the word "will" shall be construed to have the same meaning and effect
as the word "shall";
(v) the word "incur" shall be construed to mean incur, create, issue,
assume or become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings);
(vi) unless the context requires otherwise, the word "or" shall be
construed to mean "and/or";
(vii) unless the context requires otherwise, (A) any reference to any
Person shall be construed to include such Person's legal successors and
permitted assigns, (B) any reference to any law or regulation shall refer to
such law or regulation as amended, modified or supplemented from time to time,
and any successor law or regulation, (C) the words "asset" and "property"
shall be construed to have the same meaning and effect and (D) references to
agreements (including this Agreement) or other Contractual Obligations shall
be deemed to refer to such agreements or
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Contractual Obligations as amended, restated, amended and restated,
supplemented, refinanced or otherwise modified from time to time (in each
case, to the extent not otherwise prohibited hereunder); and
(viii) capitalized terms not otherwise defined herein and that are defined
in the UCC, shall have the meanings therein described.
(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) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(e) The expressions "payment in full," "paid in full" and any other similar
terms or phrases when used herein with respect to the Obligations shall mean
the payment in full, in immediately available funds, of all of the Obligations
(excluding Obligations in respect of any Cash Management Obligations and
contingent reimbursement and indemnification obligations, in each case, that
are not then due and payable).
(f) The expression "refinancing" and any other similar terms or phrases
when used herein shall include any exchange, refunding, renewal, replacement,
defeasance, discharge or extension.
(g) Unless otherwise specified, all times specified in this Agreement or
any other Loan Document shall be New York City time.
Section 1.3
Classification of Loans and Borrowings
For purposes of this Agreement, Loans and Borrowings may be classified and
referred to by Type (
e.g.
, a "SOFR Loan") and/or Class (e.g. a "Tranche A Loan" or a "Tranche B Loan").
Section 1.4
Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time;
provided
that, if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Closing Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies
the Company that the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith. At
any time after the Closing Date, the Company may elect (by written notice to
the Administrative Agent) to change its financial reporting (both hereunder
and for its audited financial statements generally) from GAAP to International
Financial Reporting Standards (as issued by the International Accounting
Standards Board and the International Financial Reporting Standards
Interpretations Committee and/or adopted by the European Union ("
IFRS
")), as in effect from time to time, in which case all references herein to
GAAP (except for historical financial statements theretofore prepared in
accordance with GAAP) shall instead be deemed references to the IFRS and the
related accounting standards as shown in the first set of audited financial
statements prepared in accordance therewith and delivered pursuant to this
Agreement;
provided
that, if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring
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as a result of the adoption of IFRS or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Company that the Administrative Agent or the Required Lenders request an
amendment to any provision hereof for such purpose), then such provision shall
be interpreted on the basis of GAAP as otherwise required above (and without
regard to this sentence) until such notice shall have been withdrawn or such
provision amended in accordance herewith. Notwithstanding any other provision
contained herein, all terms of an accounting or financial nature used herein
shall be construed, and all computations of amounts and ratios referred to
herein shall be made (i) without giving effect to any election under
Accounting Standards Codification 825-10-25 (or any other Accounting Standards
Codification or Financial Accounting Standard having a similar result or
effect) to value any Indebtedness or other liabilities of the Company or any
Subsidiary at "fair value," as defined therein and (ii) without giving effect
to any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting
Standards Codification or Financial Accounting Standard having a similar
result or effect) to value any such Indebtedness in a reduced or bifurcated
manner as described therein, and such Indebtedness shall at all times be
valued at the full stated principal amount thereof.
Section 1.5
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 1.6
Certifications
All certifications to be made hereunder by an officer or representative of the
Borrower shall be made by such person in his or her capacity solely as an
officer or a representative of the Borrower, on the Borrower's behalf and not
in such Person's individual capacity.
Section 1.7
Rates
Neither Agent warrants or accepts any responsibility for, and shall not have
any liability with respect to, (a) the continuation of, administration of,
submission of, calculation of or any other matter related to Base Rate, the
Term SOFR Reference Rate or Term SOFR, or any component definition thereof or
rates referred to in the definition thereof, or any alternative, successor or
replacement rate thereto (including any Benchmark Replacement), including
whether the composition or characteristics of any such alternative, successor
or replacement rate (including any Benchmark Replacement) will be similar to,
or produce the same value or economic equivalence of, or have the same volume
or liquidity as, Base Rate, the Term SOFR Reference Rate, Term SOFR or any
other Benchmark prior to its discontinuance or unavailability, or (b) the
effect, implementation or composition of any Conforming Changes. Each Agent
and its affiliates or other related entities may engage in transactions that
affect the calculation of Base Rate, the Term SOFR Reference Rate, Term SOFR,
any alternative, successor or replacement rate (including any Benchmark
Replacement) or any relevant adjustments thereto, in each case, in a manner
adverse to the Borrower. Each Agent may select information sources or services
in its reasonable discretion to ascertain the Base Rate, the Term SOFR
Reference Rate, Term SOFR or any other Benchmark, or any component definition
thereof or rates referred to in the definition thereof, in each case pursuant
to the terms of this Agreement, and shall have no liability to the Borrower,
any Lender or any other person or entity for damages of any kind, including
direct or indirect, special, punitive, incidental or consequential damages,
costs, losses or expenses (whether in tort, contract or otherwise and whether
at law or in equity), for any error or calculation of any such rate (or
component thereof) provided by any such information source or service.
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SECTION II AMOUNT AND TERMS OF COMMITMENTS
Section 2.1
Revolving Credit Commitments
(a) Subject to the terms and conditions of this Agreement, from time to
time during the Availability Period:
(i) each Tranche A Lender severally agrees to make revolving credit loans
to the Borrower in U.S. Dollars (each such loan, a "
Tranche A Loan
") in an aggregate principal amount at any one time outstanding that will
not
result in:
(A) the sum of such Lender's Tranche A Revolving Credit Exposure exceeding
such Lender's Tranche A Revolving Credit Commitment, or
(B) the Total Tranche A Revolving Credit Exposure exceeding the Total
Tranche A Revolving Credit Commitments, or
(C) the Total Tranche A Revolving Credit Exposure exceeding the Residential
Line Cap at such time, or
(D) the Total Revolving Credit Exposure exceeding the Aggregate Line Cap at
such time; and
(ii) each Tranche B Lender severally agrees to make revolving credit loans
to the Borrower in U.S. Dollars (each such loan, a "
Tranche B Loan
") in an aggregate principal amount at any one time outstanding that will
not
result in
(A) the sum of such Lender's Tranche B Revolving Credit Exposure exceeding
such Lender's Tranche B Revolving Credit Commitment, or
(B) the Total Tranche B Revolving Credit Exposure exceeding the Total
Tranche B Revolving Credit Commitments, or
(C) the Total Tranche B Revolving Credit Exposure exceeding the
Non-Residential Line Cap at such time, or
(D) the Total Revolving Credit Exposure exceeding the Aggregate Line Cap at
such time.
(b) Amounts borrowed pursuant to this
Section 2.1
may be repaid and, subject to the terms and conditions of this Agreement,
reborrowed at any time during the Availability Period. The outstanding
principal amount of the Revolving Credit Loans, together with interest accrued
and unpaid thereon, shall constitute Obligations and shall be due and payable
(i) with respect to any Short-Term Borrowing, on the relevant Short-Term
Borrowing Repayment Date or, if earlier, on the date on which they otherwise
become due and payable pursuant to the terms of this Agreement, or (ii)
otherwise, on the Latest Maturity Date or, if earlier, on the date on which
they otherwise become due and payable pursuant to the terms of this Agreement.
(c) Anything to the contrary in this
Section 2.1
notwithstanding, each of the Collateral Agent and the Co-Collateral Agent
shall have the right (but not the obligation) at any time, in the exercise of
their
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respective Permitted Discretion, to establish and increase or decrease
Eligible Reserves against the Non-Residential Borrowing Base and/or the
Residential Borrowing Base.
(d) Anything to the contrary in this
Section 2.1
notwithstanding, each Loan made hereunder (including any Extraordinary
Advance) shall (i) consist of a Borrowing of both Tranche A Loans and Tranche
B Loans, and (ii) be deemed apportioned (and registered) into a Tranche A Loan
and a Tranche B Loan, in each case, on a ratable basis among the Tranche A
Revolving Credit Commitments and the Tranche B Revolving Credit Commitments,
to the extent that
, as a result of such Borrowing, on a pro forma basis, the conditions of
Section 2.1(a)
are met. If the full amount of Loans to be drawn pursuant to
clause (ii)
of the preceding sentence cannot be drawn without violating the conditions set
forth therein with respect to a Tranche (the "
Affected Tranche
"), the maximum amount available shall be drawn under the Affected Tranche and
the remainder (the "
Tranche Deficit
") shall be drawn under the other Tranche (the "
Non-Affected Tranche
")
to the extent that,
as a result of the Borrowing of such Tranche Deficit, on a pro forma basis,
the conditions of
Section 2.1(a)
are met.
(e) Within each Borrowing of Tranche A Loans or Tranche B Loans, such
Borrowing shall be allocated pro rata among the Lenders holding Revolving
Credit Commitments under the initial Class of Revolving Credit Commitments
under such Tranche and any Extended Classes of Revolving Credit Commitments
extended therefrom.
Section 2.2
Borrowing Procedures and Settlements
(a)
Procedure for Borrowing Revolving Credit Loans
. Each Borrowing shall be made by delivery of a Borrowing Request executed by
a Responsible Officer to the Funding Agent (which may be delivered through the
Funding Agent's electronic platform or portal), which shall be received by the
Funding Agent no later than (i) 3:00 p.m. (New York City time) on the Business
Day that is one Business Day prior to the requested Funding Date in the case
of a request for a Base Rate Loan, and (ii) 3:00 p.m. (New York City time) on
the U.S. Government Securities Business Day that is three U.S. Government
Securities Business Days prior to the requested Funding Date in the case of a
request for a SOFR Loan. Each Borrowing Request shall specify (A) the amount
of such Borrowing, (B) the requested Funding Date (which shall be a Business
Day), and (C) whether such Borrowing shall be a Short-Term Borrowing or a
Long-Term Borrowing. Subject to satisfaction of the conditions set forth in
Section 4.3,
Short-Term Borrowings can be drawn to repay other Short-Term Borrowings. All
Borrowing Requests which are not made on-line via the Funding Agent's
electronic platform or portal shall be subject to (and unless the Funding
Agent elects otherwise in the exercise of its sole discretion, such Borrowings
shall not be made until the completion of) the Funding Agent's authentication
process (with results satisfactory to the Funding Agent) prior to the funding
of any such requested Revolving Credit Loan.
(b)
Making of Revolving Credit Loans
.
(i) After receipt of a Borrowing Request pursuant to
Section 2.2(a)
, the Funding Agent shall notify the Lenders by telecopy, telephone, email, or
other electronic form of transmission, of the requested Borrowing; such
notification to be sent on the Business Day or U.S. Government Securities
Business Day, as applicable, that is (A) in the case of a Base Rate Loan,
prior to 5:00 p.m. (New York City time) at least one Business Day prior to the
requested Funding Date, or (B) in the case of a SOFR Loan, prior to 5:00 p.m.
(New York City time) at least three U.S. Government Securities Business Days
prior to the requested Funding Date. If the Funding Agent has notified the
Lenders of a requested Borrowing on the Business Day that is one Business Day
prior to the Funding Date, then each Lender shall make the amount of such
Lender's Pro Rata Share of the requested Borrowing available to the Funding
Agent in immediately available funds, to the Funding Agent's Account, not
later than 3:00 p.m. (New York City time) on the Business
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Day that is the requested Funding Date. After the Funding Agent's receipt of
the proceeds of such Revolving Credit Loans from the Lenders, the Funding
Agent shall make the proceeds thereof available to the Borrower on the
applicable Funding Date by transferring immediately available funds equal to
such proceeds received by the Funding Agent to the Borrower Account designated
by the Borrower for such purpose;
provided
, that subject to the provisions of
Section 2.2(c)(ii)
, no Lender shall have an obligation to make any Revolving Credit Loan, if (1)
one or more of the applicable conditions precedent set forth in
Section IV
will not be satisfied on the requested Funding Date for the applicable
Borrowing unless such condition has been waived, or (2) the requested
Borrowing would cause (i) the Total Tranche A Revolving Credit Exposure to
exceed the Residential Line Cap at such time, or (ii) the Total Tranche B
Revolving Credit Exposure to exceed the Non-Residential Line Cap at such time,
as applicable.
(ii) Unless the Funding Agent receives notice from a Lender prior to 12:00
p.m. (New York City time) on the Business Day that is the requested Funding
Date relative to a requested Borrowing as to which the Funding Agent has
notified the Lenders of a requested Borrowing that such Lender will not make
available as and when required hereunder to the Funding Agent for the account
of the Borrower the amount of that Lender's Pro Rata Share of the Borrowing,
the Funding Agent may assume that each Lender has made or will make such
amount available to the Funding Agent in immediately available funds on the
Funding Date and the Funding Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If, on the requested Funding Date, any Lender shall not have remitted
the full amount that it is required to make available to the Funding Agent in
immediately available funds and if the Funding Agent has made available to the
Borrower such amount on the requested Funding Date, then such Lender shall
make the amount of such Lender's Pro Rata Share of the requested Borrowing
available to the Funding Agent in immediately available funds, to the Funding
Agent's Account, no later than 10:00 a.m. on the Business Day that is the
first Business Day after the requested Funding Date (in which case, the
interest accrued on such Lender's portion of such Borrowing for the Funding
Date shall be for the Funding Agent's separate account). If any Lender shall
not remit the full amount that it is required to make available to the Funding
Agent in immediately available funds as and when required hereby and if the
Funding Agent has made available to the Borrower such amount, then that Lender
shall be obligated to immediately remit such amount to the Funding Agent,
together with interest at the Defaulting Lender Rate for each day until the
date on which such amount is so remitted. A notice submitted by the Funding
Agent to any Lender with respect to amounts owing under this
Section 2.2(b)(ii)
shall be conclusive, absent manifest error. If the amount that a Lender is
required to remit is made available to the Funding Agent, then such payment to
the Funding Agent shall constitute such Lender's Revolving Credit Loan for all
purposes of this Agreement. If such amount is not made available to the
Funding Agent on the Business Day following the Funding Date, the Funding
Agent will notify the Borrower of such failure to fund and, upon demand by the
Funding Agent, the Borrower shall pay such amount to the Funding Agent for the
Funding Agent's account, together with interest thereon for each day elapsed
since the date of such Borrowing, at a rate per annum equal to the interest
rate applicable at the time to the Revolving Credit Loans composing such
Borrowing.
(c)
Protective Advances
.
(i) Any contrary provision of this Agreement or any other Loan Document
notwithstanding (but subject to
Section 2.2(c)(iii)
), at any time (A) after the occurrence and during the continuance of a
Default or an Event of Default, or (B) that any of the other applicable
conditions precedent set forth in
Section IV
are not satisfied, each of the Collateral Agent and the Co-Collateral Agent
are hereby authorized by the Borrower and the Lenders, from time to time, in
their sole discretion, to instruct the Funding Agent to make Revolving Credit
Loans to, or for the
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benefit of, the Borrower, on behalf of the Revolving Lenders, that each of the
Collateral Agent and the Co-Collateral Agent, in their respective Permitted
Discretion, deem necessary or desirable (1) to preserve or protect the
Collateral, or any portion thereof, (2) to enhance the likelihood of repayment
of the Obligations (other than the Cash Management Obligations) or (3) to pay
any other amount chargeable to the Borrower pursuant to the terms of this
Agreement, including, expenses and fees (the Revolving Credit Loans described
in this
Section 2.2(c)(i)
shall be referred to as "
Protective Advances
");
provided
that the Funding Agent shall not make any Protective Advance to the extent
that at the time of the making of such Protective Advance, (A) the amount of
such Protective Advance (I) when added to the aggregate outstanding amount of
all other Protective Advances made to the Borrower at such time, would exceed
5.0% of the Aggregate Borrowing Base at such time or (II) when added to the
Total Revolving Credit Exposure then in effect (immediately prior to the
incurrence of such Protective Advance), would exceed the Total Revolving
Credit Commitments at such time; (B)(I) with respect to Protective Advances
that are Tranche B Loans, the amount of such Protective Advance (I) when added
to the aggregate outstanding amount of all other Protective Advances that are
Tranche B Loans at such time, would exceed 5.0% of the Non-Residential
Borrowing Base at such time or (II) when added to the Total Tranche B
Revolving Credit Exposure then in effect (immediately prior to the incurrence
of such Protective Advance), would exceed the Total Tranche B Revolving Credit
Exposure at such time; or (C) with respect to Protective Advances that are
Tranche A Loans, the amount of such Protective Advance (I) when added to the
aggregate outstanding amount of all other Protective Advances that are Tranche
A Loans at such time, would exceed 5.0% of the Residential Borrowing Base at
such time or (II) when added to the Total Tranche A Revolving Credit Exposure
then in effect (immediately prior to the incurrence of such Protective
Advance), would exceed the Total Tranche A Revolving Credit Exposure at such
time. If there is a disagreement among the Collateral Agent and the
Co-Collateral Agent as to the size of any Protective Advance, the most
restrictive (with respect to the Borrower) position shall control.
(ii) Each Protective Advance (each, an "
Extraordinary Advance
") shall be deemed to be a Revolving Credit Loan hereunder, except that no
Extraordinary Advance shall be eligible to be a SOFR Loan. Prior to Settlement
of any Extraordinary Advance, all payments with respect thereto, including
interest thereon, shall be payable to the Funding Agent solely for its own
account. Subject to
Section 2.1(d)
hereof, each Revolving Lender shall be obligated to settle with the Funding
Agent as provided in
Section 2.2(d)
for the amount of such Lender's Pro Rata Share of any Extraordinary Advance.
The Extraordinary Advances shall be repayable on demand by the Administrative
Agent or the Funding Agent, secured by the Collateral Agent's Liens,
constitute Obligations hereunder, and bear interest at the rate applicable
from time to time to Revolving Credit Loans that are Base Rate Loans. The
provisions of this
Section 2.2(c)
are for the exclusive benefit of the Funding Agent and the Lenders and are not
intended to benefit the Borrower (or any other party) in any way.
(iii) Notwithstanding anything contained in this Agreement or any other
Loan Document to the contrary, no Extraordinary Advance may be made by the
Funding Agent if (A) such Extraordinary Advance would cause the Aggregate
Exposure to exceed the Aggregate Line Cap, (B) with respect to any
Extraordinary Advance that is a Tranche B Loan, such Extraordinary Advance
would cause the Total Tranche B Revolving Credit Exposure to exceed the Total
Tranche B Revolving Commitment, and (C) with respect to any Extraordinary
Advance that is a Tranche A Loan, such Extraordinary Advance would cause the
Total Tranche A Revolving Credit Exposure to exceed the Total Tranche A
Revolving Commitment.
(d)
Settlement
. It is agreed that each Lender's funded portion of the Revolving Credit Loans
is intended by the Lenders to equal, at all times, such Lender's Pro Rata
Share of the outstanding Revolving
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Credit Loans. Such agreement notwithstanding, the Funding Agent and the
Lenders agree (which agreement shall not be for the benefit of the Borrower)
that in order to facilitate the administration of this Agreement and the other
Loan Documents, settlement among the Lenders as to the Revolving Credit Loans
(including Extraordinary Advances) shall take place on a periodic basis in
accordance with the following provisions:
(i) The Funding Agent shall request settlement ("
Settlement
") with the Lenders on a weekly basis, or on a more frequent basis if so
determined by the Funding Agent in its sole discretion (1) for itself, with
respect to the outstanding Extraordinary Advances, and (2) with respect to the
Borrower's payments or other amounts received, as to each by notifying the
Lenders by telecopy, telephone, or other similar form of transmission, of such
requested Settlement, no later than 2:00 p.m. (New York City time) on the
Business Day immediately prior to the date of such requested Settlement (the
date of such requested Settlement being the "
Settlement Date
"). Such notice of a Settlement Date shall include a summary statement of the
amount of outstanding Revolving Credit Loans (including Extraordinary
Advances) for the period since the prior Settlement Date. Subject to the terms
and conditions contained herein (including
Section 2.2(f)
): (y) if the amount of the Revolving Credit Loans (including Extraordinary
Advances) made by a Lender that is not a Defaulting Lender exceeds such
Lender's Pro Rata Share of the Revolving Credit Loans (including Extraordinary
Advances) as of a Settlement Date, then the Funding Agent shall, by no later
than 12:00 p.m. (New York City time) on the Settlement Date, transfer in
immediately available funds to a deposit account of such Lender (as such
Lender may designate), an amount such that each such Lender shall, upon
receipt of such amount, have as of the Settlement Date, its Pro Rata Share of
the Revolving Credit Loans (including Extraordinary Advances), and (z) if the
amount of the Revolving Credit Loans (including Extraordinary Advances) made
by a Lender is less than such Lender's Pro Rata Share of the Revolving Credit
Loans (including Extraordinary Advances) as of a Settlement Date, such Lender
shall no later than 12:00 p.m. (New York City time) on the Settlement Date
transfer in immediately available funds to the Funding Agent's Account, an
amount such that each such Lender shall, upon transfer of such amount, have as
of the Settlement Date, its Pro Rata Share of the Revolving Credit Loans
(including Extraordinary Advances). Such amounts made available to the Funding
Agent under
clause (z)
of the immediately preceding sentence shall be applied against the amounts of
the applicable Extraordinary Advances and shall constitute Revolving Credit
Loans of such Lenders. If any such amount is not made available to the Funding
Agent by any Lender on the Settlement Date applicable thereto to the extent
required by the terms hereof, the Funding Agent shall be entitled to recover
for its account such amount on demand from such Lender together with interest
thereon at the Defaulting Lender Rate.
(ii) In determining whether a Lender's balance of the Revolving Credit
Loans (including Extraordinary Advances) is less than, equal to, or greater
than such Lender's Pro Rata Share of the Revolving Credit Loans (including
Extraordinary Advances) as of a Settlement Date, the Funding Agent shall, as
part of the relevant Settlement, apply to such balance the portion of payments
actually received in good funds by the Funding Agent with respect to
principal, interest, fees payable by the Borrower and allocable to the Lenders
hereunder, and proceeds of Collateral.
(iii) Between Settlement Dates, the Funding Agent, to the extent
Extraordinary Advances are outstanding, may pay over to the Funding Agent any
payments or other amounts received by the Funding Agent, that in accordance
with the terms of this Agreement would be applied to the reduction of the
Revolving Credit Loans, for application to the Extraordinary Advances. During
the period between Settlement Dates, the Funding Agent with respect to
Extraordinary Advances, and each Lender with respect to the Revolving Credit
Loans other than Extraordinary Advances, shall be entitled to interest at the
applicable rate or rates payable under
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this Agreement on the daily amount of funds employed the Funding Agent or the
Lenders, as applicable.
(iv) Anything in this
Section 2.2(d)
to the contrary notwithstanding, in the event that a Lender is a Defaulting
Lender, the Funding Agent shall be entitled to refrain from remitting
settlement amounts to the Defaulting Lender and, instead, shall be entitled to
elect to implement the provisions set forth in
Section 2.2(f)
.
(v)
Notation
. Consistent with
Section 9.4(b)(iv)
, the Funding Agent, as a non-fiduciary agent for the Borrower, shall maintain
a register showing the principal amount and stated interest of the Revolving
Credit Loans, owing to each Lender, and Extraordinary Advances owing to the
Funding Agent, and the interests therein of each Lender, from time to time and
such register shall, absent manifest error, conclusively be presumed to be
correct and accurate.
(e)
Defaulting Lenders
. Notwithstanding the provisions of
Section 2.3(b)(iii)
, the Funding Agent shall not be obligated to transfer to a Defaulting Lender
any payments made by the Borrower to the Funding Agent for the Defaulting
Lender's benefit or any proceeds of Collateral that would otherwise be
remitted hereunder to the Defaulting Lender, and, in the absence of such
transfer to the Defaulting Lender, the Funding Agent shall transfer any such
payments (A)
first
, to the Funding Agent to the extent of any Extraordinary Advances that were
made by the Funding Agent and that were required to be, but were not, paid by
Defaulting Lender, (B)
second
, to each Non-Defaulting Lender ratably in accordance with their Revolving
Credit Commitments (but, in each case, only to the extent that such Defaulting
Lender's portion of a Revolving Credit Loan (or other funding obligation) was
funded by such other Non-Defaulting Lender), (C)
third
, in the Funding Agent's sole discretion, to a suspense account maintained by
the Funding Agent, the proceeds of which shall be retained by the Funding
Agent and may be made available to be re-advanced to or for the benefit of the
Borrower (upon the request of the Borrower and subject to the conditions set
forth in
Section 4.3
) as if such Defaulting Lender had made its portion of Revolving Credit Loans
(or other funding obligations) hereunder, and (D)
fourth
, from and after the date on which all other Obligations have been paid in
full, to such Defaulting Lender in accordance with tier (L) of
Section 2.3(b)(iii)
. Subject to the foregoing, the Funding Agent may hold and, in its discretion,
re-lend to the Borrower for the account of such Defaulting Lender the amount
of all such payments received and retained by the Funding Agent for the
account of such Defaulting Lender. Solely for the purposes of voting or
consenting to matters with respect to the Loan Documents (including the
calculation of Pro Rata Share in connection therewith) and for the purpose of
calculating the fee payable under
Section 2.9(a)
, such Defaulting Lender shall be deemed not to be a "Lender" and such
Lender's Revolving Credit Commitment shall be deemed to be zero;
provided
, that the foregoing shall not apply to any of the matters governed by
Section 9.4(b)(i)(1)
through
(3)
. The provisions of this
Section 2.2(e)
shall remain effective with respect to such Defaulting Lender until the
earlier of (y) the date on which all of the Non-Defaulting Lenders, the
Administrative Agent, and the Borrower shall have waived, in writing, the
application of this
Section 2.2(e)
to such Defaulting Lender, or (z) the date on which such Defaulting Lender
makes payment of all amounts that it was obligated to fund hereunder, pays to
the Funding Agent all amounts owing by Defaulting Lender in respect of the
amounts that it was obligated to fund hereunder, and, if requested by the
Administrative Agent, provides adequate assurance of its ability to perform
its future obligations hereunder (on which earlier date, so long as no Event
of Default has occurred and is continuing, any remaining cash collateral held
by the Funding Agent pursuant to
Section 2.3(b)(ii)
shall be released to the Borrower). The operation of this
Section 2.2(e)
shall not be construed to increase or otherwise affect the Revolving Credit
Commitment of any Lender, to relieve or excuse the performance by such
Defaulting Lender or any other Lender of its duties and obligations hereunder,
or to relieve or excuse the performance by the Borrower of its duties and
obligations hereunder to the Agents or to the Lenders other than such
Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it
was obligated to fund hereunder shall constitute a material breach by such
Defaulting Lender of this Agreement and shall entitle the Borrower, at its
option, upon written notice to the
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Administrative Agent, to arrange for a substitute Lender to assume the
Revolving Credit Commitment of such Defaulting Lender, such substitute Lender
to be reasonably acceptable to the Administrative Agent, to the extent that
consent by the Administrative Agent for an assignment would be required
pursuant to
Section 9.4
. In connection with the arrangement of such a substitute Lender, the
Defaulting Lender shall have no right to refuse to be replaced hereunder, and
agrees to execute and deliver a completed form of Assignment and Assumption in
favor of the substitute Lender (and agrees that it shall be deemed to have
executed and delivered such document if it fails to do so) subject only to
being paid its share of the outstanding Obligations (other than Cash
Management Obligations, but including all interest, fees, and other amounts
that may be due and payable in respect thereof);
provided
, that any such assumption of the Revolving Credit Commitment of such
Defaulting Lender shall not be deemed to constitute a waiver of any of the
Agent's, Lenders' or Borrower's rights or remedies against any such Defaulting
Lender arising out of or in relation to such failure to fund. In the event of
a direct conflict between the priority provisions of this
Section 2.2(e)
and any other provision contained in this Agreement or any other Loan
Document, it is the intention of the parties hereto that such provisions be
read together and construed, to the fullest extent possible, to be in concert
with each other. In the event of any actual, irreconcilable conflict that
cannot be resolved as aforesaid, the terms and provisions of this
Section 2.2(e)
shall control and govern.
(f)
Independent Obligations
. All Revolving Credit Loans (other than Extraordinary Advances) shall be made
by the Lenders contemporaneously and in accordance with their Pro Rata Shares.
It is understood that (i) no Lender shall be responsible for any failure by
any other Lender to perform its obligation to make any Revolving Credit Loan
(or other extension of credit) hereunder, nor shall any Revolving Credit
Commitment of any Lender be increased or decreased as a result of any failure
by any other Lender to perform its obligations hereunder, and (ii) no failure
by any Lender to perform its obligations hereunder shall excuse any other
Lender from its obligations hereunder.
Section 2.3
Payments; Reductions of Commitments; Prepayments
.
(a)
Payments by the Borrower
.
(i) Except as otherwise expressly provided herein, all payments by the
Borrower shall be made to the Funding Agent's Account for the account of the
Lenders and/or the Agents and shall be made in immediately available funds, no
later than 3:00 p.m. (New York City time) on the date specified herein. Any
payment received by the Funding Agent in immediately available funds in the
Funding Agent's Account later than 3:00 p.m. (New York City time) shall be
deemed to have been received (unless the Funding Agent, in its sole
discretion, elects to credit it on the date received) on the following
Business Day and any applicable interest or fee shall continue to accrue until
such following Business Day.
(ii) Unless the Funding Agent receives notice from the Borrower prior to
the date on which any payment is due to the Lenders that the Borrower will not
make such payment in full as and when required, the Funding Agent may assume
that the Borrower has made (or will make) such payment in full to the Funding
Agent on such date in immediately available funds and the Funding Agent may
(but shall not be so required), in reliance upon such assumption, distribute
to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent the Borrower does not make such payment in full
to the Funding Agent on the date when due, each Lender severally shall repay
to the Funding Agent on demand such amount distributed to such Lender,
together with interest thereon at the Defaulting Lender Rate for each day from
the date such amount is distributed to such Lender until the date repaid.
(b)
Apportionment and Application
.
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(i) So long as no Application Event has occurred and is continuing and
except as otherwise provided herein with respect to Defaulting Lenders, (A)
all principal and interest payments received by the Funding Agent shall be
apportioned (i) (x)
first
to any Non-Affected Tranche to the extent of any Tranche Deficit then
outstanding following the application of
Section 2.1(d)
, then (y) ratably among the Lenders holding Revolving Credit Loans of
different Tranches (to the extent of Revolving Credit Loans of each Tranche
outstanding), (ii) ratably among each Tranche and any Extended Classes arising
from such Tranche as the Originating Class, and (iii) in each case, within
each Class, ratably among the Lenders holding Revolving Credit Loans of such
Class (according to the unpaid principal balance of the Revolving Credit Loans
to which such payments relate held by each Lender) and (B) all payments of
fees and expenses received by the Funding Agent (other than fees or expenses
that are for the Funding Agent's separate account) shall be apportioned
ratably among the Lenders having a Pro Rata Share of the Class of Revolving
Credit Commitments or Obligations to which a particular fee or expense relates.
(ii) Subject to
Section 2.3(b)(v)
and
Section 2.3(e)
, all payments to be made hereunder by the Borrower shall be remitted to the
Funding Agent and all such payments, and all proceeds of Collateral received
by any Agent, shall be applied, so long as no Application Event has occurred
and is continuing and except as otherwise provided herein with respect to
Defaulting Lenders, to reduce the balance of the Revolving Credit Loans
outstanding and, thereafter, to the Borrower (to be wired to the Borrower
Account designated for such purpose) or such other Person entitled thereto
under applicable law.
(iii) At any time that an Application Event has occurred and is continuing
and except as otherwise provided herein with respect to Defaulting Lenders,
all payments remitted to the Funding Agent and all proceeds of Collateral
received by the Funding Agent shall be applied as follows:
(A)
first
, to pay any Lender Group Expenses (including cost or expense reimbursements)
or indemnities then due to any Agent under the Loan Documents, until paid in
full,
(B)
second
, to pay any fees or premiums then due to any Agent under the Loan Documents,
until paid in full,
(C)
third
,
(1) payments, collections and proceeds from Residential Accounts shall be
applied to pay interest due in respect of Protective Advances that are Tranche
A Loans, until paid in full,
(2) payments, collections and proceeds from Non-Residential Accounts shall
be applied to pay interest due in respect of Protective Advances that are
Tranche B Loans, until paid in full,
(D)
fourth
,
(1) payments, collections and proceeds from Residential Accounts shall be
applied to pay the principal of Protective Advances that are Tranche A Loans,
until paid in full,
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(2) payments, collections and proceeds from Non-Residential Accounts shall
be applied to pay the principal of Protective Advances that are Tranche B
Loans, until paid in full
(E)
fifth
, to pay to the Servicer any accrued and unpaid Servicing Fees and Servicing
Expenses (each, as defined under the Purchase Agreements), to the extent
Reserves for such amounts have been taken,
(F)
sixth
, ratably, to pay any Lender Group Expenses (including cost or expense
reimbursements) or indemnities then due to any of the Lenders under the Loan
Documents, until paid in full,
(G)
seventh
, ratably, to pay any fees or premiums then due to any of the Lenders under
the Loan Documents, until paid in full,
(H)
eighth
,
(1) payments, collections and proceeds from Residential Accounts shall be
applied to pay interest accrued in respect of the Tranche A Loans (other than
Protective Advances), until paid in full,
(2) payments, collections and proceeds from Non-Residential Accounts shall
be applied to pay interest accrued in respect of the Tranche B Loans (other
than Protective Advances), until paid in full,
(I)
ninth,
(1) payments, collections and proceeds from Residential Accounts shall be
applied to pay the principal of Tranche A Loans (other than Protective
Advances), until paid in full,
(2) payments, collections and proceeds from Non-Residential Accounts shall
be applied to pay the principal of Tranche B Loans (other than Protective
Advances), until paid in full,
(J)
tenth
, to the extent of any deficit after application of the payments described in
tiers
(C)
,
(D)
,
(H)
or
(I)
above, to pay, in the following order (i) interest due in respect of
Protective Advances, (ii) principal of Protective Advances, (iii) interest
accrued in respect of Revolving Credit Loans, and (iv) the principal of
Revolving Credit Loans,
(K)
eleventh
, to pay any other Obligations other than Obligations owed to Defaulting
Lenders (including being paid, ratably, to the Qualified Counterparties on
account of all amounts then due and payable in respect of Cash Management
Obligations, with any balance to be paid to the Funding Agent, to be held by
the Funding Agent, for the ratable benefit of the Qualified Counterparties, as
cash collateral (which cash collateral may be released by the Funding Agent to
the applicable Qualified Counterparty and applied by such Qualified
Counterparty to the payment or reimbursement of any amounts due and payable
with respect to Cash Management Obligations owed to the applicable Qualified
Counterparty as and when such amounts first become due and payable and, if and
at such time as all such Cash Management Obligations are paid or otherwise
satisfied in full, the
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cash collateral held by the Funding Agent in respect of such Cash Management
Obligations shall be reapplied pursuant to this
Section 2.3(b)(iii)
, beginning with tier
(A)
hereof)),
(L)
twelfth
, ratably to pay any Obligations owed to Defaulting Lenders, and
(M)
thirteenth
, to the Borrower or such other Person entitled thereto under applicable law.
(iv) The Funding Agent promptly shall distribute to each Lender, pursuant
to the applicable wire instructions received from each Lender in writing, such
funds as it may be entitled to receive, subject to a Settlement delay as
provided in
Section 2.2(d)
.
(v) In each instance, so long as no Application Event has occurred and is
continuing,
Section 2.3(b)(ii)
shall not apply to any payment made by the Borrower to the Funding Agent and
specified by the Borrower to be for the payment of specific Obligations then
due and payable (or prepayable) under any provision of this Agreement or any
other Loan Document.
(vi) For purposes of
Section 2.3(b)(iii)
, "paid in full" of a type of Obligation means payment in cash or immediately
available funds of all amounts owing on account of such type of Obligation,
including interest accrued after the commencement of any Bankruptcy Event,
default interest, interest on interest, and expense reimbursements,
irrespective of whether any of the foregoing would be or is allowed or
disallowed in whole or in part in any Bankruptcy Event.
(vii) In the event of a direct conflict between the priority provisions of
this
Section 2.3(b)
and any other provision contained in this Agreement or any other Loan
Document, it it's the intention of the parties hereto that such provisions be
read together and construed, to the fullest extent possible, to be in concert
with each other. In the event of any actual, irreconcilable conflict that
cannot be resolved as aforesaid, if the conflict relates to the provisions of
Section 2.2(f)
and this
Section 2.3(b)
, then the provisions of
Section 2.2(f)
shall control and govern, and if otherwise, then the terms and provisions of
this
Section 2.3(b)
shall control and govern.
(c)
Reduction of Commitments
. The Tranche A Revolving Credit Commitments and the Tranche B Revolving
Credit Commitments shall terminate on the Maturity Date applicable thereto or
earlier termination thereof pursuant to the terms of this Agreement. The
Borrower may reduce the Tranche A Revolving Credit Commitments or the Tranche
B Revolving Credit Commitments (on a pro rata basis together with any Extended
Classes arising from such Tranche as the Originating Class) to an amount
(which may be zero) not less than the sum of (A) the Tranche A Revolving
Credit Exposure or the Tranche B Revolving Credit Exposure, as applicable, as
of such date,
plus
(B) the principal amount of all Tranche A Loans or Tranche B Loans, as
applicable, not yet made as to which a request has been given by the Borrower
under
Section 2.2(a)
. Each such reduction shall be in an amount which is not less than $500,000
(unless the relevant Revolving Credit Commitments of a particular Class are
being reduced to zero and the amount of the relevant Revolving Credit
Commitments in effect immediately prior to such reduction are less than
$500,000), shall be made by providing not less than ten Business Days prior
written notice to the Administrative Agent, and shall be irrevocable. The
Revolving Credit Commitments, once reduced, may not be increased. Each such
reduction of the Tranche A Revolving Credit Commitments or the Tranche B
Revolving Credit Commitments shall reduce the Tranche A Revolving Credit
Commitments or the Tranche B Revolving Credit Commitments of each Tranche A
Lender or Tranche B Lender, as applicable, proportionately in accordance with
its ratable share thereof. In connection with any reduction in the Revolving
Credit Commitments prior to the Latest Maturity Date, if the Borrower owns any
Margin Stock, the Borrower shall deliver to the Administrative Agent an
updated Form U-1 (with sufficient additional originals thereof for each
Lender), duly executed and delivered by the Borrower, together with such other
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documentation as the Administrative Agent shall reasonably request, in order
to enable the Agents and the Lenders to comply with any of the requirements
under Regulations T, U or X of the Board of Governors.
(d)
Optional Prepayments
. The Borrower may, upon at least three Business Days prior written notice to
the Funding Agent, prepay the principal of any Revolving Credit Loan at any
time in whole or in part, without premium or penalty.
(e)
Mandatory Prepayments
. If, at any time, (i) Total Revolving Credit Exposure exceeds the Line Cap,
(ii) the Total Tranche A Revolving Credit Exposure exceeds the Residential
Line Cap, or (iii) the Total Tranche B Revolving Credit Exposure exceeds the
Non-Residential Line Cap, then the Borrower shall promptly, but in any event,
within one Business Day prepay the Obligations of the affected Tranche(s) in
an aggregate amount equal to the amount of such excess;
provided
that, if a prepayment of Tranche B Loans is required as a result of the
Aggregate Excess Availability condition for the applicability of the
Government Receivables Basket not being met, the amount of Tranche B Loans to
be prepaid shall be determined so that after giving pro forma effect to such
prepayment, such condition is satisfied.
(f)
Application of Payments
. Each prepayment pursuant to
Section 2.3(e)
shall, (1) so long as no Application Event shall have occurred and be
continuing, be applied to the outstanding principal amount of the applicable
Revolving Credit Loans until paid in full, and (2) if an Application Event
shall have occurred and be continuing, be applied in the manner set forth in
Section 2.3(b)(iii)
. Subject to Section 2.1(d), all payments shall be deemed apportioned on a
ratable basis among Tranches.
Section 2.4
Promise to Pay; Notes
.
(a) The Borrower agrees to pay the Lender Group Expenses not later than the
applicable date required by
Section 9.3(d)
. The Borrower promises to pay all of the Obligations (including principal,
interest, premiums, if any, fees, costs, and expenses (including Lender Group
Expenses)) in full on the Maturity Date applicable thereto or, if earlier, on
the date on which the Obligations (other than the Cash Management Obligations)
become due and payable pursuant to the terms of this Agreement. The Borrower
agrees that its obligations contained in the first sentence of this
Section 2.4(a)
shall survive payment or satisfaction in full of all other Obligations.
(b) Any Lender may request that any portion of its Revolving Credit
Commitments or the Revolving Credit Loans made by it be evidenced by one or
more Notes. In such event, the Borrower shall execute and deliver to such
Lender the requested Notes payable to the order of such Lender in the form of
Exhibit E
hereof. Thereafter, the portion of the Revolving Credit Commitments and
Revolving Credit Loans evidenced by such promissory notes and interest thereon
shall at all times be represented by one or more promissory notes in such form
payable to the order of the payee named therein.
Section 2.5
Interest Rates: Rates, Payments, and Calculations
(a)
Interest Rates
. Subject to
Section 9.17
, each Base Rate Loan shall bear interest at a rate
per annum
equal to the Base Rate
plus
the Applicable Margin for Base Rate Loans; each SOFR Loan shall bear interest
at a rate
per annum
equal to Term SOFR
plus
the Applicable Margin for SOFR Loans.
(b)
Default Rate
. If all or a portion of (i) the principal amount of any Revolving Credit
Loan, or (ii) any interest payable thereon or any other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall automatically bear
interest at a rate per annum
that is (A) in the case of overdue principal of any Revolving Credit Loan, the
rate that would otherwise be applicable thereto
plus
2.00%
per annum
, (B) in the case of any other overdue amount, including overdue interest, the
highest rate described in
Section 2.5(a)
plus
2.00%
per annum
, in
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each case,
from the date of such non-payment to the date on which such amount is paid in
full (after as well as before judgment).
(c)
Payment
. Except to the extent provided to the contrary in
Section 2.9
, (i) all interest and all other fees payable hereunder or under any of the
other Loan Documents shall be due and payable, in arrears, on each Interest
Payment Date, and (ii) all costs and expenses payable hereunder or under any
of the other Loan Documents, and all other Lender Group Expenses shall be due
and payable on (x) with respect to Lender Group Expenses outstanding as of the
Closing Date, the Closing Date, (y) with respect to Lender Group Expenses
outstanding as of the Effective Date, the Effective Date, and (z) otherwise,
on the date the payment of the applicable costs, expenses or Lender Group
Expenses is required pursuant to
Section 9.3(d)
. The Borrower hereby authorizes the Funding Agent, from time to time without
prior notice to the Borrower, to charge to the Loan Account (A) on each
Interest Payment Date, all interest accrued during the prior Interest Period
on the Revolving Credit Loans hereunder, and (B) as and when incurred or
accrued, all fees and costs provided for in
Section 2.9(b)
or
(d)
, (C) on the fifth (5
th
) day of each January, April, July and October of each year, and on the date
on which the Revolving Credit Commitments terminate, commencing on the last
Business Day of the first full Fiscal Quarter ending after the Effective Date,
the Commitment Fee accrued during the prior Fiscal Quarter pursuant to
Section 2.9(a)
, (D) as and when due and payable, all other fees payable hereunder or under
any of the other Loan Documents, (E) on the Closing Date and thereafter as and
when due and payable pursuant to
Section 9.3(d)
, all other Lender Group Expenses, and (F) as and when due and payable, all
other payment obligations payable under any Loan Document or any agreement
documenting Cash Management Obligations due and payable to Qualified
Counterparties. Unless timely paid in accordance herewith (including any
applicable cure period under
Section 7.1
), all amounts (including interest, fees, costs, expenses, Lender Group
Expenses, or other amounts payable hereunder or under any other Loan Document
or under any agreement documenting Cash Management Obligations) charged to the
Loan Account shall thereupon constitute Revolving Credit Loans hereunder,
shall constitute Obligations hereunder, and shall initially accrue interest at
the rate then applicable to Revolving Credit Loans that are Base Rate Loans
(unless and until converted into SOFR Loans in accordance with the terms of
this Agreement).
(d)
Computation
. All interest and fees chargeable under the Loan Documents shall be computed
on the basis of a 360 day year, in each case, for the actual number of days
elapsed in the period during which the interest or fees accrue. In the event
the Base Rate is changed from time to time hereafter, the rates of interest
hereunder based upon the Base Rate automatically and immediately shall be
increased or decreased by an amount equal to such change in the Base Rate.
(e)
Intent to Limit Charges to Maximum Lawful Rate
. In no event shall the interest rate or rates payable under this Agreement,
plus
any other amounts paid in connection herewith, exceed the highest rate
permissible under any law that a court of competent jurisdiction shall, in a
final determination, deem applicable. The Borrower and the Credit Parties, in
executing and delivering this Agreement, intend legally to agree upon the rate
or rates of interest and manner of payment stated within it;
provided
, that anything contained herein to the contrary notwithstanding, if such rate
or rates of interest or manner of payment exceeds the maximum allowable under
applicable law, then,
ipso facto
, as of the date of this Agreement, the Borrower is and shall be liable only
for the payment of such maximum amount as is allowed by law, and payment
received from the Borrower in excess of such legal maximum, whenever received,
shall be applied to reduce the principal balance of the Obligations to the
extent of such excess.
(f)
Term SOFR Conforming Changes
. In connection with the use or administration of Term SOFR, the Funding Agent
(in consultation with the Administrative Agent) will have the right to make
Conforming Changes from time to time and, notwithstanding anything to the
contrary herein or in any other Loan Document, any amendments implementing
such Conforming Changes will become effective without any further action or
consent of any other party to this Agreement or any other Loan Document. The
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Funding Agent will promptly notify the Administrative Agent, the Borrower and
the Lenders of the effectiveness of any Conforming Changes in connection with
the use or administration of Term SOFR.
Section 2.6
Crediting Payments
. The receipt of any payment item by the Funding Agent shall not be required
to be considered a payment on account unless such payment item is a wire
transfer of immediately available funds made to the Funding Agent's Account or
unless and until such payment item is honored when presented for payment.
Should any payment item not be honored when presented for payment, then the
Borrower shall be deemed not to have made such payment. Anything to the
contrary contained herein notwithstanding, any payment item shall be deemed
received by the Funding Agent only if it is received into the Funding Agent's
Account on a Business Day on or before 3:00 p.m. (New York City time). If any
payment item is received into the Funding Agent's Account on a non-Business
Day or after 3:00 p.m. (New York City time) on a Business Day (unless the
Funding Agent, in its sole discretion, elects to credit it on the date
received), it shall be deemed to have been received by the Funding Agent as of
the opening of business on the immediately following Business Day.
Section 2.7
Designated Account
. The Funding Agent is authorized to make the Revolving Credit Loans based
upon telephonic or other instructions received from anyone purporting to be a
Responsible Officer or, without instructions, if pursuant to
Section 2.5(c)
. The Borrower agrees to establish and maintain a Controlled Account
designated for the purpose of receiving the proceeds of the Revolving Credit
Loans requested by the Borrower and made by the Funding Agent or the Lenders
hereunder. Unless otherwise agreed by the Funding Agent and the Borrower, any
Revolving Credit Loan requested by the Borrower and made by the Funding Agent
or the Lenders hereunder shall be made to such designated account.
Section 2.8
Maintenance of Loan Account; Statements of Obligations
. The Funding Agent shall maintain an account on its books in the name of the
Borrower (the "
Loan Account
") on which the Borrower will be charged with all Revolving Credit Loans
(including Extraordinary Advances) made by the Funding Agent or the Lenders to
the Borrower or for the Borrower's account, and with all other payment
Obligations hereunder or under the other Loan Documents, including, accrued
interest, fees and expenses, and Lender Group Expenses. In accordance with
Section 2.6
, the Loan Account will be credited with all payments received by the Funding
Agent from Borrower or for the Borrower's account. The Funding Agent shall
make available to the Borrower monthly statements regarding the Loan Account,
including the principal amount of the Revolving Credit Loans, interest accrued
hereunder, fees accrued or charged hereunder or under the other Loan
Documents, and a summary itemization of all charges and expenses constituting
Lender Group Expenses accrued hereunder or under the other Loan Documents, and
each such statement, absent manifest error, shall be conclusively presumed to
be correct and accurate and constitute an account stated between the Borrower
and the Lender Group unless, within 30 days after the Funding Agent first
makes such a statement available to the Borrower, the Borrower shall deliver
to the Funding Agent written objection thereto describing the error or errors
contained in such statement.
Section 2.9
Fees
(a)
Commitment Fees
. The Borrower shall pay to the Funding Agent for the account of each Lender
(other than any Defaulting Lenders) in accordance with its Pro Rata Share of
the Total Revolving Credit Commitments, a commitment fee for the period from
the Effective Date to but excluding the Maturity Date (or such earlier date on
which the Revolving Credit Commitments shall have expired or terminated) equal
to the Commitment Fee Rate
divided by
360 days and
multiplied by
the number of days in the Fiscal Quarter and then
multiplied by
the amount, if any, by which the Average Facility Balance for such Fiscal
Quarter (or portion thereof that the Revolving Credit Commitments are in
effect) is less than the aggregate amount of the Revolving Credit Commitments;
provided
that if the Revolving Credit Commitments are terminated on a day other than
the first day of a Fiscal Quarter, then any such fee payable for the Fiscal
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Quarter in which termination shall occur shall be paid on the effective date
of such termination and shall be based upon the number of days that have
elapsed during such period. All Commitment Fees shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(b)
Administrative Agent Fees
. The Borrower agrees to pay to the Administrative Agent for its own account,
the Administrative Agent fees with respect to the Revolving Credit Facility
described in the Fee Letter.
(c)
Co-Collateral Agent Fees
. The Borrower agrees to pay to the Co-Collateral Agent for its own account,
the fees with respect to the Revolving Credit Facility described in the
Co-Collateral Agent Fee Letter.
(d)
Ticking Fees
. The Borrower shall pay to the Funding Agent, for the account of each Lender
in accordance with its Pro Rata Share of the Total Revolving Credit
Commitments, a ticking fee for the period from July 9, 2024 to but excluding
the earlier of the date that the Revolving Credit Commitments are terminated
and the Effective Date, equal to the Ticking Fee Rate
divided by
360 days and
multiplied by
the number of days in such period. Accrued Ticking Fees shall be payable on
the earlier of (i) the date on which the Revolving Credit Commitments are
terminated, or (ii) the Effective Date.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Funding Agent for distribution, in the
case of Commitment Fees and Ticking Fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances (except as otherwise
expressly agreed).
Section 2.10
SOFR Option
.
(a)
Interest and Interest Payment Dates
. In lieu of having interest charged at the rate based upon the Base Rate, the
Borrower shall have the option, subject to
Section 2.11(b)
below (the "
SOFR Option
") to have interest on all or a portion of the Revolving Credit Loans be
charged (whether at the time when made (unless otherwise provided herein),
upon conversion from a Base Rate Loan to a SOFR Loan, or upon continuation of
a SOFR Loan as a SOFR Loan) at a rate of interest based upon Term SOFR.
Interest on SOFR Loans shall be payable on (i) each Interest Payment Date,
(ii) the date on which all or any portion of the Obligations are accelerated
pursuant to the terms hereof, or (iii) the date on which this Agreement is
terminated pursuant to the terms hereof. On each Interest Payment Date, unless
the Borrower have properly exercised the SOFR Option with respect thereto, the
interest rate applicable to such SOFR Loan automatically shall convert to the
rate of interest then applicable to Base Rate Loans of the same type
hereunder. At any time that an Event of Default has occurred and is
continuing, the Borrower no longer shall have the option to request that
Revolving Credit Loans bear interest at a rate based upon Term SOFR.
(b)
SOFR Election
.
(i) The Borrower may, at any time and from time to time, so long as no
Event of Default has occurred and is continuing, elect to exercise the SOFR
Option by notifying the Funding Agent prior to 3:00 p.m. (New York City time)
at least three U.S. Government Securities Business Days prior to the
commencement of the proposed Interest Period (the "
SOFR Deadline
"). Notice of the Borrower's election of the SOFR Option for a permitted
portion of the Revolving Credit Loans and an Interest Period pursuant to this
Section shall be made by delivery to the Funding Agent of a SOFR Notice
received by the Funding Agent before the SOFR Deadline. Promptly upon its
receipt of each such SOFR Notice, the Funding Agent shall provide a notice
thereof to each of the affected Lenders.
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(ii) Each SOFR Notice shall be irrevocable and binding on the Borrower. In
connection with each SOFR Loan, the Borrower shall indemnify, defend, and hold
the Funding Agent and the Lenders harmless against any loss, cost, or expense
actually incurred by the Funding Agent or any Lender as a result of (A) the
payment or required assignment of any principal of any SOFR Loan other than on
the Interest Payment Date applicable thereto (including as a result of an
Event of Default), (B) the conversion of any SOFR Loan other than on an
Interest Payment Date, or (C) the failure to borrow, convert, continue or
prepay any SOFR Loan on the date specified in any SOFR Notice delivered
pursuant hereto (such losses, costs, or expenses, "
Funding Losses
").
(iii) A certificate of the Funding Agent or a Lender delivered to the
Borrower setting forth in reasonable detail any amount or amounts that the
Funding Agent or such Lender is entitled to receive pursuant to this
Section 2.10
shall be conclusive absent manifest error. The Borrower shall pay such amount
to the Funding Agent or the Lender, as applicable, within 30 days of the date
of its receipt of such certificate.
(iv) Unless the Funding Agent, in its sole discretion, agrees otherwise,
the Borrower shall have not more than ten SOFR Loans of each Tranche in effect
at any given time. The Borrower may only exercise the SOFR Option for proposed
SOFR Loans of at
least
$1,000,000.
(c)
Conversion; Prepayment
. The Borrower may convert SOFR Loans to Base Rate Loans or prepay SOFR Loans
at any time;
provided
, that in the event that SOFR Loans are converted or prepaid on any date that
is not an Interest Payment Date, including as a result of any prepayment
through the required application by the Funding Agent of any payments or
proceeds of Collateral in accordance with
Section 2.3(b)
or for any other reason, including early termination of the term of this
Agreement or acceleration of all or any portion of the Obligations pursuant to
the terms hereof, the Borrower shall indemnify, defend, and hold the Funding
Agent and the Lenders and their Participants harmless against any and all
Funding Losses in accordance with
Section 2.10(b)(ii)
.
(d)
Special Provisions Applicable to Term SOFR
.
(i) Term SOFR may be adjusted by the Funding Agent with respect to any
Lender on a prospective basis to take into account any additional or increased
costs (including any Taxes, other than (A) Indemnified Taxes, (B) Taxes
described in
clauses (b)
through
(d)
of the definition of "Excluded Taxes" and (C) Connection Income Taxes), in
each case, due to changes in applicable law occurring subsequent to the
commencement of the then applicable Interest Period, or pursuant to any Change
in Law or change in the reserve requirements imposed by the Federal Reserve
Board, which additional or increased costs would increase the cost of funding
or maintaining loans bearing interest at Term SOFR. In any such event, the
affected Lender shall give the Borrower and the Funding Agent notice of such a
determination and adjustment and the Funding Agent promptly shall transmit the
notice to each other Lender and, upon its receipt of the notice from the
affected Lender, the Borrower may, by notice to such affected Lender (A)
require such Lender to furnish to the Borrower a statement setting forth in
reasonable detail the basis for adjusting Term SOFR and the method for
determining the amount of such adjustment, or (B) repay the SOFR Loans or Base
Rate Loans determined with reference to Term SOFR, in each case, of such
Lender with respect to which such adjustment is made (together with any
amounts due under
Section 2.10(b)(ii)
).
(ii) Subject to the provisions set forth in
Section 2.10(d)(iii)
below, in the event that any change in market conditions or any Change in Law
shall at any time after the date hereof, in the reasonable opinion of any
Lender, make it unlawful or impractical for such Lender to fund or maintain
SOFR Loans (or Base Rate Loans determined with reference to Term SOFR) or to
continue such funding or maintaining, or to determine or charge interest rates
at the Term SOFR
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Reference Rate, Term SOFR or SOFR, such Lender shall give notice of such
changed circumstances to the Funding Agent and the Borrower, and the Funding
Agent promptly shall transmit the notice to each other Lender and (y)(i) in
the case of any SOFR Loans of such Lender that are outstanding, such SOFR
Loans of such Lender will be deemed to have been converted Base Rate Loans on
the last day of the Interest Period of such SOFR Loans, if such Lender may
lawfully continue to maintain such SOFR Loans, or immediately, if such Lender
may not lawfully continue to maintain such SOFR Loans, and thereafter interest
upon the SOFR Loans of such Lender thereafter shall accrue interest at the
rate then applicable to Base Rate Loans (and if applicable, without reference
to the Term SOFR component thereof) and (ii) in the case of any such Base Rate
Loans of such Lender that are outstanding and that are determined with
reference to Term SOFR, interest upon the Base Rate Loans of such Lender after
the date specified in such Lender's notice shall accrue interest at the rate
then applicable to Base Rate Loans without reference to the Term SOFR
component thereof and (z) the Borrower shall not be entitled to elect the SOFR
Option and Base Rate Loans shall not be determined with reference to the Term
SOFR component thereof, in each case, until such Lender determines that it
would no longer be unlawful or impractical to do so.
(iii)
Benchmark Replacement Setting
.
(A)
Benchmark Replacement
. Notwithstanding anything to the contrary herein or in any other Loan
Document, upon the occurrence of a Benchmark Transition Event, the Funding
Agent (in consultation with the Administrative Agent) and the Borrower may
amend this Agreement to replace the then-current Benchmark with a Benchmark
Replacement. Any such amendment with respect to a Benchmark Transition Event
will become effective at 5:00 p.m. (New York City time) on the fifth (5
th
) Business Day after the Administrative Agent has posted such proposed
amendment to all affected Lenders and the Borrower, so long as the
Administrative Agent has not received, by such time, written notice of
objection to such amendment from Lenders comprising the Required Lenders. No
replacement of a Benchmark with a Benchmark Replacement pursuant to this
Section 2.10(d)(iii)
will occur prior to the applicable Benchmark Transition Start Date.
(B)
Benchmark Replacement Conforming Changes
. In connection with the use, administration, adoption or implementation of a
Benchmark Replacement, the Funding Agent (in consultation with the
Administrative Agent) will have the right to make Conforming Changes from time
to time and, notwithstanding anything to the contrary herein or in any other
Loan Document, any amendments implementing such Conforming Changes will become
effective without any further action or consent of any other party to this
Agreement or any other Loan Document.
(C)
Notices; Standards for Decisions and Determinations
. The Administrative Agent will promptly notify the Borrower and the Lenders
of (1) the implementation of any Benchmark Replacement and (2) the
effectiveness of any Conforming Changes in connection with the use,
administration, adoption or implementation of a Benchmark Replacement. The
Funding Agent will notify the Borrower of (x) the removal or reinstatement of
any tenor of a Benchmark pursuant to
Section 2.10(d)(iii)(D)
and (y) the commencement of any Benchmark Unavailability Period. Any
determination, decision or election that may be made by the Funding Agent or,
if applicable, any Lender (or group of Lenders) pursuant to this
Section 2.10(d)(iii)
, including any determination with respect to a tenor, rate or adjustment or
of the occurrence or non-occurrence of an event, circumstance or date and any
decision to take or refrain from taking any action or any selection, will be
conclusive and binding absent manifest error and may be made in its or their
sole discretion
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and without consent from any other party to this Agreement or any other Loan
Document, except, in each case, as expressly required pursuant to this
Section 2.10(d)(iii)
.
(D)
Unavailability of Tenor of Benchmark
. Notwithstanding anything to the contrary herein or in any other Loan
Document, at any time (including in connection with the implementation of a
Benchmark Replacement), (1) if the then-current Benchmark is a term rate
(including the Term SOFR Reference Rate) and either (I) any tenor for such
Benchmark is not displayed on a screen or other information service that
publishes such rate from time to time as selected by the Funding Agent in its
reasonable discretion or (II) the regulatory supervisor for the administrator
of such Benchmark has provided a public statement or publication of
information announcing that any tenor for such Benchmark is not or will not be
representative, then the Funding Agent (in consultation with the Administrative
Agent) may modify the definition of "Interest Period" (or any similar or
analogous definition) for any Benchmark settings at or after such time to
remove such unavailable or non-representative tenor and (2) if a tenor that
was removed pursuant to
clause (1)
above either (I) is subsequently displayed on a screen or information service
for a Benchmark (including a Benchmark Replacement) or (II) is not, or is no
longer, subject to an announcement that it is not or will not be representative
for a Benchmark (including a Benchmark Replacement), then the Funding Agent
(in consultation with the Administrative Agent) may modify the definition of
"Interest Period" (or any similar or analogous definition) for all Benchmark
settings at or after such time to reinstate such previously removed tenor.
(E) Benchmark Unavailability Period. Upon Borrower's receipt of notice of
the commencement of a Benchmark Unavailability Period, (1) the Borrower may
revoke any pending request for a borrowing of, conversion to or continuation
of SOFR Loans to be made, converted or continued during any Benchmark
Unavailability Period and, failing that, the Borrower will be deemed to have
converted any such request into a request for a borrowing of or conversion to
Base Rate Loans and (2) any outstanding affected SOFR Loans will be deemed to
have been converted to Base Rate Loans at the end of the applicable Interest
Period. During any Benchmark Unavailability Period or at any time that a tenor
for the then-current Benchmark is not an Available Tenor, the component of the
Base Rate based upon the then-current Benchmark or such tenor for such
Benchmark, as applicable, will not be used in any determination of the Base
Rate.
(e)
No Requirement of Matched Funding
. Anything to the contrary contained herein notwithstanding, neither Agent,
nor any Lender, nor any of their Participants, is required actually to match
fund any Obligation as to which interest accrues at Term SOFR or the Term SOFR
Reference Rate.
Section 2.11
Capital Requirements
.
(a) If, after the date hereof, any Lender determines that (i) any Change in
Law regarding capital, liquidity or reserve requirements for banks or bank
holding companies, or (ii) compliance by such Lender, or its respective parent
bank holding company, with any guideline, request or directive of any
Governmental Authority regarding capital adequacy or liquidity requirements
(whether or not having the force of law), has the effect of reducing the
return on such Lender's, or its holding company's capital or liquidity as a
consequence of such Lender's commitments, Loans, participations or other
obligations hereunder to a level below that which such Lender, or such holding
company could have achieved but for such Change in Law or compliance (taking
into consideration such Lender's, or such holding company's then existing
policies with respect to capital adequacy or liquidity requirements and
assuming the full utilization of such entity's capital) by any amount deemed
by such Lender to be material, then such Lender
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may notify the Borrower and the Administrative Agent thereof. Following
receipt of such notice, the Borrower agrees to pay such Lender on demand the
amount of such reduction of return of capital as and when such reduction is
determined, payable within 30 days after presentation by such Lender of a
statement in the amount and setting forth in reasonable detail such Lender's
calculation thereof and the assumptions upon which such calculation was based
(which statement shall be deemed true and correct absent manifest error). In
determining such amount, such Lender may use any reasonable averaging and
attribution methods. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation;
provided
, that the Borrower shall not be required to compensate a Lender pursuant to
this Section for any reductions in return incurred more than 180 days prior to
the date that such Lender notifies the Borrower of such Change in Law giving
rise to such reductions and of such Lender's intention to claim compensation
therefor;
provided
further
, that if such claim arises by reason of the Change in Law that is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
(b) If any Lender requests additional or increased costs referred to in
Section 2.10(d)(i)
or amounts under
Section 2.11(a)
or sends a notice under
Section 2.10(d)(ii)
relative to changed circumstances (such Lender, an "
Affected Lender
"), then, at the request of the Borrower, such Affected Lender shall use
reasonable efforts to promptly designate a different one of its lending
offices or to assign its rights and obligations hereunder to another of its
offices or branches, if (i) in the reasonable judgment of such Affected
Lender, such designation or assignment would eliminate or reduce amounts
payable pursuant to
Section 2.10(d)(i)
or
Section 2.11(a)
, as applicable, or would eliminate the illegality or impracticality of
funding or maintaining SOFR Loans (or Base Rate Loans determined with
reference to Term SOFR), and (ii) in the reasonable judgment of such Affected
Lender, such designation or assignment would not subject it to any material
unreimbursed cost or expense and would not otherwise be materially
disadvantageous to it. The Borrower agrees to pay all reasonable out-of-pocket
costs and expenses incurred by such Affected Lender in connection with any
such designation or assignment. If, after such reasonable efforts, such
Affected Lender does not so designate a different one of its lending offices
or assign its rights to another of its offices or branches so as to eliminate
the Borrower's obligation to pay any future amounts to such Affected Lender
pursuant to
Section 2.10(d)(i)
or
Section 2.1(a)
, as applicable, or to enable the Borrower to obtain SOFR Loans (or Base Rate
Loans determined with reference to Term SOFR), then the Borrower (without
prejudice to any amounts then due to such Affected Lender under
Section 2.10(d)(i)
or
Section 2.11(a)
, as applicable) may, unless prior to the effective date of any such
assignment the Affected Lender withdraws its request for such additional
amounts under
Section 2.10(d)(i)
or
Section 2.11(a)
, as applicable, or indicates that it is no longer unlawful or impractical to
fund or maintain SOFR Loans (or Base Rate Loans determined with reference to
Term SOFR), may designate or substitute a Lender or prospective Lender, in
each case, reasonably acceptable to the Administrative Agent (to the extent
that consent by the Administrative Agent for an assignment would be required
pursuant to
Section 9.4
) to purchase the Obligations owed to such Affected Lender and such Affected
Lender's commitments hereunder (a "
Replacement Lender
"), and if such Replacement Lender agrees to such purchase, such Affected
Lender shall assign to the Replacement Lender its Obligations and commitments,
and upon such purchase by the Replacement Lender, which such Replacement
Lender shall be deemed to be a "Lender" (as the case may be) for purposes of
this Agreement and such Affected Lender shall cease to be a "Lender" (as the
case may be) for purposes of this Agreement.
(c) Notwithstanding anything herein to the contrary, the protection of
Sections 2.10(d)
and
2.11
shall be available to each Lender (as applicable) regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
judicial ruling, judgment, guideline, treaty or other change or condition
which shall have occurred or been imposed, so long as it shall be customary
for lenders affected thereby to comply therewith. Notwithstanding any other
provision herein, no Lender shall demand compensation pursuant to this
Section 2.11
if it shall not at the time be the general policy or practice of
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such Lender to demand such compensation in similar circumstances under
comparable provisions of other credit agreements, if any.
Section 2.12
Reallocation of Commitments.
(a)
Reallocation Mechanism
. Subject to the terms and conditions of this
Section 2.12
, the Borrower may request that certain Revolving Lenders (and such Revolving
Lenders in their individual sole discretion may agree to) change the then
current allocation of each such Revolving Lender's Revolving Credit
Commitments among the Tranches in order to effect an increase or decrease in
the Revolving Credit Commitments of a particular Tranche, with any such
increase or decrease in Revolving Credit Commitments for one Tranche to be
accompanied by a concurrent and equal decrease or increase, respectively, in
the Revolving Credit Commitments for the other Tranche (each, a "
Reallocation
"). In addition to the conditions set forth in
Section 2.12(b)
, any such Reallocation shall be subject to the following conditions: (i) the
Borrower shall have provided to the Administrative Agent and the Funding Agent
a written request (in reasonable detail) at least 15 Business Days prior to
the requested effective date therefor (which effective date must be a Business
Day) (the "
Reallocation Date
") setting forth the proposed Reallocation Date and the amounts of the
proposed Reallocation to be effected, (ii) any such Reallocation shall
increase or decrease, as the case may be, the applicable Revolving Credit
Commitments in an amount equal to $5,000,000 and in increments of $1,000,000
in excess thereof, (iii) the Administrative Agent and the Funding Agent shall
have received Reallocation Consents from Revolving Lenders having applicable
Revolving Credit Commitments sufficient to effectuate such requested
Reallocation, (iv) no more than one Reallocation may be requested in any
Fiscal Quarter, (v) no Default or Event of Default shall have occurred and be
continuing either as of the date of such request or on the Reallocation Date
(both immediately before and after giving effect to such Reallocation), (vi)
any increase in a Revolving Credit Commitment of one Tranche shall result in a
dollar-for-dollar decrease in the Revolving Credit Commitment of the other
Tranche, (vii) in no event shall the Revolving Credit Exposure exceed the
amount of the aggregate Revolving Credit Commitments then in effect, (viii)
after giving effect to such Reallocation, no Overadvance would exist or would
result therefrom and (ix) at least three Business Days prior to the proposed
Reallocation Date, a Responsible Officer of the Borrower shall have delivered
to the Administrative Agent and the Funding Agent a certificate certifying as
to compliance with preceding
clauses (v)
,
(vii)
and
(viii)
and demonstrating (in reasonable detail) the calculations required in
connection therewith, which certificate shall be deemed recertified on and as
of the Reallocation Date.
(b)
Reallocation Generally
. The Administrative Agent shall promptly inform the Funding Agent and the
Revolving Lenders in each of the Tranches of any request for a Reallocation.
Each Revolving Lender electing to participate in the Reallocation by
decreasing its Revolving Credit Commitments under one Tranche and increasing
its Revolving Credit Commitments in the other Tranche in an equal amount shall
notify the Administrative Agent and the Funding Agent within five (5) Business
Days after its receipt of such notice of its election and the maximum amount
of the respective Revolving Credit Commitment Reallocation to which it would
agree (each, a "
Reallocation Consent
"). Notwithstanding the foregoing, (i) no Revolving Lender shall be obligated
to agree to any such Reallocation of its Revolving Credit Commitment (and no
consent by any Revolving Lender to any Reallocation on one occasion shall be
deemed consent to any future Reallocation by such Revolving Lender), (ii)
other than the Revolving Lenders consenting to such Reallocation, no consent
of any other Revolving Lender (including, for the avoidance of doubt, the
consent of the Required Lenders) shall be required and (iii) the failure of
any Revolving Lender to affirmatively consent to participate in any such
Reallocation on or prior to the fifth Business Day after its receipt of notice
thereof shall be deemed to constitute an election by such Revolving Lender not
to participate in such Reallocation. If, at the end of such five Business Day
period, the Administrative Agent and the Funding Agent receive Reallocation
Consents from Revolving Lenders in an aggregate amount greater than or equal
to the required reallocation amounts, each such consenting Revolving Lender's
affected Revolving Credit Commitments for the applicable Tranche shall be
increased
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or decreased on a
pro rata
basis based on the affected Revolving Credit Commitments of the participating
Revolving Lenders. If the conditions set forth in
Section 2.12
, including, without limitation, the receipt of Reallocation Consents within
the time period set forth above, are not satisfied on the applicable
Reallocation Date (or, to the extent such conditions relate to an earlier
date, such earlier date), the Administrative Agent shall notify the Borrower
in writing that the requested Reallocation will not be effectuated;
provided
that (A) the Administrative Agent shall in all cases be entitled to rely
(without liability) on the certificate delivered by the Borrower pursuant to
Section 2.12(a)(ix)
in making its determination as to the satisfaction of the conditions set forth
in
Section 2.12(a)(v)
,
(vii)
and
(viii)
, and (B) if the proposed Reallocation cannot be effected because sufficient
Reallocation Consents were not received, then the Borrower may elect to
consummate such Reallocation in the lesser amount of the Reallocation Consents
that were received. On each Reallocation Date, the Administrative Agent shall
notify the Funding Agent, the Revolving Lenders of the affected Tranche and
the Borrower, on or before 3:00 p.m. (New York City time) by e-mail or other
electronic means, of the occurrence of the Reallocation to be effected on such
Reallocation Date, the amount of the Revolving Credit Loans held by each such
Revolving Lender as a result thereof and the amount of the affected Revolving
Credit Commitments of each such Revolving Lender as a result thereof. The
respective Pro Rata Share of each Revolving Lender shall thereafter, to the
extent applicable, be determined based on such reallocated amounts (subject to
any subsequent changes thereto and
clause (c)
of this
Section 2.12
), and the Agents and the affected Revolving Lenders shall make such
adjustments as the Agents shall deem necessary so that the outstanding
Revolving Credit Loans of each Revolving Lender equals its Pro Rata Share
thereof after giving effect to the Reallocation.
(c)
Reallocation of Outstanding Revolving Credit Loans
. Following a Reallocation of Revolving Credit Commitments, outstanding
Revolving Credit Loans shall be reallocated to align the
pro rata
nature of the Tranches as provided by, and to the extent of,
Section 2.1(d)
hereof.
(d)
Trigger Adjustments
. Following a Reallocation of Revolving Credit Commitments, the dollar amounts
in (i)
clauses (b)
,
(c)
and
(d)
of the definition of "Payment Conditions", (ii)
clauses (b)
and
(c)
of the definition of "Covenant Trigger Event", (iii)
clauses (b)
and
(c)
of the definition of "Liquidity Condition", and (iv)
clauses (ii)
and
(iii)
of
Section 5.1(d)
, shall be adjusted on a ratable basis with such Reallocation of Revolving
Credit Commitments among Tranches.
Section 2.13
[Reserved]
Section 2.14
[Reserved]
Section 2.15
[Reserved]
Section 2.16
Taxes
(a) All payments by or on account of any obligation of the Borrower
hereunder or under any other Loan Document shall be made free and clear of and
without deduction or withholding for any Taxes, except as required by
applicable Law. If any applicable withholding agent shall be required (as
determined by such applicable withholding agent in its good faith discretion)
by applicable Law to deduct or withhold any Taxes in respect of any such
payments, then (i) in the case of deduction or withholding for Indemnified
Taxes, the sum payable shall be increased by the Borrower as necessary so that
after making all such required deductions or withholdings (including such
deductions and withholdings applicable to additional sums payable under this
Section 2.16(a)
) each Lender (or, in the case of a payment made to any Agent for its own
account, the Agent) receives an amount equal to the sum it would have received
had no such deductions or withholdings been made, (ii) the applicable
withholding agent shall be entitled to make or cause to be made such
deductions or withholdings and (iii) the applicable withholding agent shall
pay or
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cause to be paid the full amount deducted to the relevant Governmental
Authority in accordance with applicable Law.
(b) In addition, the Borrower shall timely pay to the relevant Governmental
Authority in accordance with applicable Law, or at the option of any Agent
timely reimburse it for the payment of, any Other Taxes.
(c) The Borrower shall indemnify any Agent and each Lender, within 30 days
after written 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 2.16
) payable or paid by the Agent or such Lender or required to be withheld or
deducted from a payment to the Agent or Lender, as the case may be, and unless
caused by the gross negligence or willful misconduct of such Agent or Lender,
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 setting forth in reasonable
detail the basis for such claim and the calculation of the amount of any such
payment or liability including, if available, reasonably detailed supporting
information, shall be delivered to the Borrower by a Lender or Agent (with a
copy to the Funding Agent, as applicable) or by the Funding Agent on its own
behalf or on behalf of a Lender or Agent, and shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Taxes by the Borrower to a
Governmental Authority pursuant to this
Section 2.16
, the Borrower shall deliver to the Funding 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 Funding Agent.
(e)
(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 Funding Agent, at the time or times reasonably
requested by the Borrower or the Funding Agent, such properly completed and
executed documentation reasonably requested by the Borrower or the Funding
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 Funding Agent, shall deliver such other documentation
prescribed by applicable Law or reasonably requested by the Borrower or the
Funding Agent as will enable the Borrower or the Funding 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 2.16(e)(ii)(A)
,
(ii)(B)
and
(ii)(D)
below) shall not be required if in the Lender's reasonable judgment such
completion, execution or submission would subject such Lender to any material
unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Funding 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 Funding Agent), two executed copies of IRS Form
W-9 certifying that such Lender is exempt from US federal backup withholding
Tax;
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(B) any Foreign Lender shall, to the extent it is legally eligible to do
so, deliver to the Borrower and the Funding Agent 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 Funding
Agent), two of 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, executed copies of IRS Form
W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or
reduction of, US federal withholding Tax pursuant to 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
substantially in the form of
Exhibit F-1
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" related to the Borrower as described in Section
881(c)(3)(C) of the Code and that no payments under any Loan Documents are
effectively connected with such Lender's conduct of a US trade or business (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 (for
example, where the Lender is a partnership or a participating Lender),
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
substantially in the form of
Exhibit F-2
or
Exhibit F-3
, IRS Form W-9, and/or other certification documents from each beneficial
owner, as applicable;
provided
that if the Foreign Lender is a partnership and not a participating Lender,
and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide a
U.S. Tax Compliance Certificate substantially in the form of
Exhibit F-4
on behalf of such direct and indirect partner(s);
(C) any Foreign Lender shall, to the extent it is legally eligible to do
so, deliver to the Borrower and the Funding Agent 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 Funding
Agent), two executed copies of any other documentation prescribed by
applicable Law as a basis for claiming exemption from or a reduction in US
federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable Law to permit the Borrower or
the Funding Agent to determine the withholding or deduction, if any, required
to be made; and
(D) If a payment made to a Lender under any Loan Document would be subject
to US federal withholding Tax imposed pursuant to FATCA if such Lender were to
fail to comply with any 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 Funding Agent, at the time or times prescribed
by applicable Law and at such time or times
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reasonably requested by the Borrower or the Funding Agent, such documentation
prescribed by any 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 Funding Agent as may be necessary for the
Borrower and the Funding Agent to comply with their obligations under FATCA,
to determine whether such Lender has or has not complied with such Lender's
obligations under FATCA and to determine the amount (if any) to deduct and
withhold from such payment. Solely for purposes of this
Section 2.16(e)(ii)(D)
, "FATCA" shall include any amendments made to FATCA after the date of this
Agreement.
(iii) The Funding Agent and any successor thereto shall deliver to the
Borrower on or prior to the date on which it becomes the Funding Agent under
this Agreement (and from time to time thereafter upon reasonable request of
the Borrower) (i) if the Funding Agent (or such successor to the Funding
Agent) is a U.S. Person, one executed copy of IRS Form W-9 certifying that it
is exempt from US federal backup withholding, or (ii) if the Funding Agent (or
such successor to the Funding Agent) is not a U.S. Person, (A) one executed
copy of IRS Form W-8ECI with respect to any amounts payable under any Loan
Document to the Funding Agent for its own account, and (B) one executed copy
of IRS Form W-8IMY with respect to any amounts payable under any Loan Document
to the Funding Agent for the account of any Lender, certifying that it is a
"U.S. branch" and may be treated as a U.S. Person for purposes of applicable
U.S. federal withholding Tax or that it is a "qualified intermediary" and
assumes primary withholding responsibility under Chapters 3 and 4 of the Code
and primary IRS Form 1099 reporting and backup withholding responsibility for
payments it receives for the account of others.
(iv) Each Lender agrees that if any documentation it previously delivered
expires or becomes obsolete or inaccurate in any respect, it shall update such
documentation or promptly notify the Borrower and the Funding Agent in writing
of its legal ineligibility to do so.
(v) Each Lender hereby authorizes the Funding Agent to deliver to the
Borrower and to any successor Agent any documentation provided by such Lender
to the Funding Agent pursuant to this
Section 2.16(e)
.
(vi) Notwithstanding any other provision of this
Section 2.16(e)
, no Agent nor any Lender shall be required to deliver any documentation that
such Agent or Lender, as applicable, is not legally eligible to deliver.
(f) Parties hereto agree that the Loans constitute debt for U.S. federal
income tax purposes and intend to treat the Loans as not governed by the rules
set out in Treasury Regulations Section 1.1275-4.
(g) If any Agent or any Lender determines, in its sole discretion exercised
in good faith, that it has received a refund of any Taxes as to which it has
been indemnified by the Borrower pursuant to this
Section 2.16
or with respect to which the Borrower has paid additional amounts pursuant to
this
Section 2.16
, it shall promptly notify the Borrower of such refund and shall promptly upon
receipt pay over an amount equal to such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this
Section 2.16
with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including Taxes) of the Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund);
provided
that the Borrower, upon the request of the Agent or such Lender, shall
promptly repay the amount paid over to the Borrower pursuant to this
Section 2.16(g)
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Agent or such Lender in the event the Agent or
such Lender is required to repay such refund to such Governmental Authority.
Notwithstanding anything
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to the contrary in this
Section 2.16(g)
, in no event will any Agent or such Lender be required to pay any amount to
the Borrower pursuant to this
Section 2.16(g)
the payment of which would place the Agent or such Lender in a less favorable
net after-Tax position than the Agent or such Lender would have been in if the
Tax subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or
additional amounts with respect to such Tax had never been paid. This
Section 2.16(g)
shall not be construed to require any Agent or any Lender to make available
its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the Borrower or any other Person. Nothing contained in this
Section shall prohibit the Borrower from contesting or seeking a refund of any
Indemnified Taxes after payment thereof has been made in accordance with this
Section and each Credit Party shall use reasonable efforts to take such steps
as the Borrower shall reasonably request to assist the Borrower in contesting
or seeking a refund of any Indemnified Taxes so long as such efforts would
not, in the sole determination of the Credit Party, result in any additional
out-of-pocket costs or expenses not reimbursed by the Borrower or be otherwise
materially disadvantageous to the Credit Party.
(h) Each party's obligations under this
Section 2.16
shall survive the resignation or replacement of any Agent or any assignment of
rights by, or the replacement of, a Lender, the termination of the Revolving
Credit Commitments and the repayment, satisfaction or discharge of all
obligations under any Loan Document.
(i) For purposes of this
Section 2.16
, the term "applicable Law" includes FATCA.
Section 2.17
[Reserved]
Section 2.18
Replacement of Lenders
.
(a) If (i) any action to be taken by the Lenders or Agents hereunder
requires the consent, authorization, or agreement of all Lenders or all
Lenders affected thereby and if such action has received the consent,
authorization, or agreement of the Required Lenders but not of all Lenders or
all Lenders affected thereby, or (ii) any Lender makes a claim for
compensation under
Section 2.16
, then Borrowers or Agent, upon at least five Business Days prior irrevocable
notice, may permanently replace any Lender that failed to give its consent,
authorization, or agreement (a "
Non-Consenting Lender
") or any Lender that made a claim for compensation (a "
Tax Lender
") with one or more Replacement Lenders, and the Non-Consenting Lender or Tax
Lender, as applicable, shall have no right to refuse to be replaced hereunder;
provided that in the case of any such replacement resulting from a claim for
compensation under
Section 2.16
, such replacement will result in a reduction in such compensation. Such
notice to replace the Non-Consenting Lender or Tax Lender, as applicable,
shall specify an effective date for such replacement, which date shall not be
later than 15 Business Days after the date such notice is given.
(b) Prior to the effective date of such replacement, the Non-Consenting
Lender or Tax Lender, as applicable, and each Replacement Lender shall execute
and deliver an Assignment and Assumption, subject only to the Non-Consenting
Lender or Tax Lender, as applicable, being repaid in full its share of the
outstanding Obligations (without any premium or penalty of any kind
whatsoever, but including
(i) all interest, fees and other amounts that may be due in payable in respect
thereof, and (ii) Funding Losses). If the Non-Consenting Lender or Tax Lender,
as applicable, shall refuse or fail to execute and deliver any such Assignment
and Assumption prior to the effective date of such replacement, the
Administrative Agent may, but shall not be required to, execute and deliver
such Assignment and Assumption in the name or and on behalf of the
Non-Consenting Lender or Tax Lender, as applicable, and irrespective of
whether Agent executes and delivers such Assignment and Assumption, the
Non-Consenting Lender or Tax Lender, as applicable, shall be deemed to have
executed and delivered such Assignment and Assumption. The replacement of any
Non-Consenting Lender or Tax Lender, as applicable, shall be made
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in accordance with the terms of
Section 9.4
. Until such time as one or more Replacement Lenders shall have acquired all
of the Obligations, the Revolving Credit Commitments, and the other rights and
obligations of the Non-Consenting Lender or Tax Lender, as applicable,
hereunder and under the other Loan Documents, the Non-Consenting Lender or Tax
Lender, as applicable, shall remain obligated to make the Non-Consenting
Lender's or Tax Lender's, as applicable, Pro Rata Share of Revolving Credit
Loans.
Section 2.19
[Reserved]
Section 2.20
[Reserved]
Section 2.21
Cash Management
(a)
(i) Prior to the Effective Date (subject to any extension as may be agreed
by the Collateral Agent and the Co-Collateral Agent), (x) the Borrower shall
establish the Borrower Accounts in the Borrower's name with the Collection
Banks, and (y) the Borrower shall cause Intermediate SPV to establish
Intermediate Accounts in Intermediate SPV's name with the Collection Banks.
(ii) Prior to the Effective Date (subject to any extension as may be agreed
by the Collateral Agent and the Co-Collateral Agent), the Borrower, the
Collateral Agent and the applicable Collection Banks will enter into Cash
Management Control Agreements with respect to all Borrower Accounts then in
existence, and thereafter will maintain, separate Cash Management Control
Agreements with respect to all Borrower Accounts and any other deposit account
from time to time owned by the Borrower.
(iii) The Borrower shall, or shall cause Intermediate SPV and the
Originators to, instruct all Account Debtors to remit all payments with
respect to their related Accounts (other than any Excluded Receivables) to an
Intermediate Account. The Borrower shall instruct Intermediate SPV to remit,
deposit or sweep, promptly upon receipt, all payments received in Intermediate
Accounts (other than Excluded Amounts) to the Borrower Accounts. The Borrower
may close deposit accounts at any Collection Bank and/or open new deposit
accounts at any Collection Bank, subject (in the case of opening any new
deposit account) to the contemporaneous (or such longer period as the
Collateral Agent and the Co-Collateral Agent may reasonably agree) execution
and delivery to the Collateral Agent of a Cash Management Control Agreement
consistent with the provisions of this
Section 2.21
and otherwise reasonably satisfactory to the Collateral Agent and the
Co-Collateral Agent.
(b) So long as no Dominion Period then exists in respect of which the
Collateral Agent or the Co-Collateral Agent has delivered notice thereof, the
Borrower shall be permitted to withdraw Cash and Cash Equivalents from the
Borrower Accounts to be used for working capital and general corporate
purposes, including the making of Permitted Payments. If a Dominion Period
exists and the Collateral Agent or the Co-Collateral Agent has delivered
notice thereof, all collected amounts held in the Controlled Accounts (other
than, with respect to Intermediate Accounts, Excluded Amounts) shall be
applied as provided in
Section 2.21(c)
.
(c) Each Cash Management Control Agreement relating to a Controlled Account
shall include provisions that allow, during any Dominion Period, for all
collected amounts held in such Controlled Account (other than, with respect to
Intermediate Accounts, Excluded Amounts) from and after the date
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requested by the Collateral Agent or the Co-Collateral Agent to be sent by ACH
or wire transfer or similar electronic transfer no less frequently than once
per Business Day to one or more accounts maintained by the Collateral Agent at
the Funding Agent (each, an "
Collateral Agent Deposit Account
"). Subject to the terms of the respective Security Document, during any
Dominion Period, all amounts received in a Collateral Agent Deposit Account
(or, at the Collateral Agent and the Co-Collateral Agent' option, in any
Controlled Account) shall be applied (and allocated) by the Collateral Agent
on a daily basis in order set forth in
Section 2.3(b)(iii)
. Notwithstanding the foregoing, it is understood and agreed that (I) all
Controlled Accounts may be subject to Liens permitted by
Section 6.3(d)
and (II) (x) if any fees are expressly permitted to be charged by the
applicable bank or credit card or other merchant processor to the Borrower
pursuant to the terms of any applicable agreement in connection therewith or
(y) if any sales draft or sales transaction (or similar item) previously
credited to a Controlled Account are returned to the applicable bank or
processor, as applicable, such bank or processor may, in each case, to the
fullest extent permitted by the applicable agreement or law, withdraw funds
from such Controlled Account in the full amount of such fees or such returned
item.
(d) Subject to the terms and conditions of
Section 9.3
, all costs and expenses to effect the foregoing (including reasonable legal
fees and disbursements of counsel) shall be paid by the Borrower.
(e) The Collateral Agent agrees that immediately upon the termination of
the Dominion Period it shall stop transferring amounts from the Controlled
Accounts to accounts maintained with the Collateral Agent pursuant to this
Section 2.21
, and the Borrower shall be permitted to withdraw Cash and Cash Equivalents
from Controlled Accounts to be used for working capital and general corporate
purposes, including the making of Permitted Payments.
(f) If at any time payment is received into any Borrower Account or
Controlled Account pursuant to Section 3.4 of the Borrower Purchase Agreement,
the Collateral Agent may, in its sole discretion, apply all such funds to the
payment of any outstanding Obligations in accordance with
Section 2.21(c)
regardless of whether or not any Dominion Period then exists.
Section 2.22
Extensions of Revolving Credit Commitments
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to
one or more offers (but no more than three) (each, an "
Extension Offer
") made not earlier than 90 days and not later than 30 days prior to each
anniversary of the Effective Date, by the Borrower to all Lenders with
Revolving Credit Commitments of the same Class and with a like maturity date
on a
pro rata
basis (based on the aggregate outstanding principal amount of the Revolving
Credit Commitments under such Class with a like maturity date) and on the same
terms to each such Lender, the Borrower is hereby permitted to consummate from
time to time transactions with individual Lenders that accept the terms
contained in such Extension Offers to extend the maturity date of each such
Lender's Revolving Credit Commitments of such Class and otherwise modify the
terms of such Revolving Credit Commitments pursuant to the terms of the
relevant Extension Offer (including by increasing the interest rate or fees
payable in respect of such Revolving Credit Commitments (and related
outstandings)) (each, an "
Extension
,"; any Extended Revolving Credit Commitments shall constitute a separate
Class (each, an "
Extended Class
") of Revolving Credit Commitments from the Class of Revolving Credit
Commitments from which they were extended (the "
Originating Class
"), so long as the following terms are satisfied: (i) except as to pricing
(including interest rates, fees and funding discounts), conditions precedent
and maturity (which shall be set forth in the relevant Extension Offer), the
Revolving Credit Commitment of any Lender that agrees to an Extension with
respect to such Revolving Credit Commitment extended pursuant to an Extension
(an "
Extended Revolving Credit Commitment
"), and the related outstandings, shall be a Revolving Credit Commitment (or
related outstandings, as the case may be) with the same terms as the Revolving
Credit Commitments (and related outstandings) of such Originating Class (
provided
that (1) assignments and participations of Extended
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Revolving Credit Commitments and extended Revolving Credit Loans shall be
governed by the same assignment and participation provisions applicable to
Revolving Credit Commitments and Revolving Credit Loans of such Originating
Class and (2) at no time shall there be Revolving Credit Commitments hereunder
which have more than four different maturity dates), (ii) if the aggregate
principal amount of Revolving Credit Commitments in respect of which Lenders
shall have accepted the relevant Extension Offer shall exceed the maximum
aggregate principal amount of Revolving Credit Commitments offered to be
extended by the Borrower pursuant to such Extension Offer, then the Revolving
Credit Loans of such Lenders shall be extended ratably up to such maximum
amount based on the respective principal amounts (but not to exceed actual
holdings of record) with respect to which such Lenders have accepted such
Extension Offer and (iii) all documentation in respect of such Extension shall
be consistent with the foregoing. No more than three Extensions shall be
permitted during the life of this Agreement.
(b) With respect to all Extensions consummated by the Borrower pursuant to
this
Section 2.22
, (i) such Extensions shall not constitute voluntary or mandatory payments or
prepayments for purposes of this Agreement and (ii) each Extension Offer shall
specify the minimum amount of Revolving Credit Commitments of each Class to be
tendered. The transactions contemplated by this
Section 2.22
(including, for the avoidance of doubt, payment of any interest or fees in
respect of any Extended Revolving Credit Commitments on such terms as may be
set forth in the relevant Extension Offer) shall not require the consent of
any Lender or any other Person (other than as set forth in
clause (c)
below), and the requirements of any provision of this Agreement (including
Sections 2.3(b)
) or any other Loan Document that may otherwise prohibit any such Extension or
any other transaction contemplated by this
Section 2.22
shall not apply to any of the transactions effected pursuant to this
Section 2.22
.
(c) No consent of any Lender or any other Person shall be required to
effectuate any Extension, other than the consent of the Borrower and each
Lender agreeing to such Extension with respect to one or more of its Revolving
Credit Commitments (or a portion thereof), which consent shall not be
unreasonably withheld, conditioned or delayed. All Extended Revolving Credit
Commitments and all obligations in respect thereof shall be Obligations under
this Agreement and the other Loan Documents that are secured by the Collateral
on a
pari passu
basis with the applicable Revolving Credit Facility subject to such Extension
Amendment. The Lenders hereby irrevocably authorize the Administrative Agent
to enter into amendments to this Agreement and the other Loan Documents (an "
Extension Amendment
") with the Borrower as may be necessary in order to establish new tranches or
sub-tranches in respect of Revolving Credit Commitments of each Tranche so
extended and such technical amendments as may be necessary or appropriate in
the opinion of the Administrative Agent and the Borrower to effect the
provisions of this
Section 2.22
(including in connection with the establishment of such new tranches or
sub-tranches, or to provide for class voting provisions applicable to the
Additional Lenders on terms comparable to the provisions of
Section 9.2(b)
).
(d) In connection with any Extension, the Borrower shall provide the
Administrative Agent at least five Business Days (or such shorter period as
may be agreed by the Administrative Agent) prior written notice thereof, and
shall agree to such procedures (including regarding timing, rounding and other
adjustments and to ensure reasonable administrative management of the credit
facilities hereunder after such Extension), if any, as may be established by,
or acceptable to, the Administrative Agent, in each case acting reasonably, to
accomplish the purposes of this
Section 2.22
.
(e) Notwithstanding anything to the contrary above, at any time and from
time to time following the establishment of Extended Revolving Credit
Commitments, the Borrower may offer any Lender of a Class that had been
subject to an Extension Amendment (without being required to make the same
offer to any or all other Lenders) who had not elected to participate in such
Extension Amendment the right to convert all or any portion of its Revolving
Credit Commitments into such Extended Revolving Credit Commitments of such
Class;
provided
that (i) such offer and any related acceptance shall be in
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accordance with such procedures, if any, as may be reasonably requested by, or
acceptable to, the Administrative Agent; (ii) such additional Extended
Revolving Credit Commitments shall be on identical terms (including as to the
proposed interest rates and fees payable, but excluding any arrangement,
structuring or other fees payable in connection therewith that are not
generally shared with the relevant Lenders) with the existing Extended
Revolving Credit Commitments, (iii) any Lender which elects to participate in
an Extension pursuant to this
clause (e)
shall enter into a joinder agreement to the respective Extension Amendment, in
form and substance reasonably satisfactory to the Administrative Agent and
executed by such Lender, the Administrative Agent and the Borrower and (iv)
any such additional Extended Revolving Credit Commitments shall be in an
aggregate principal amount that is not less than $1,000,000, unless each of
the Borrower and the Administrative Agent otherwise consents.
Section 2.23
Increases in Revolving Credit Commitments
(a)
Notice
. At any time and from time to time, on one or more occasions, the Borrower
may (on behalf of itself), by notice to the Administrative Agent, increase the
aggregate principal amount of the Revolving Credit Commitments of any
then-existing Class with the then Latest Maturity Date (the "
Incremental Revolving Facilities
"; each such increase, an "
Incremental Facility
" and the loans or other extensions of credit made thereunder, the "
Incremental Loans
").
(b)
Ranking
. Incremental Facilities will rank
pari passu
in right of payment with the Revolving Credit Commitments and will be secured
by the Collateral by Liens on a
pari passu
basis to the Liens that secure the Revolving Credit Commitments.
(c)
Size and Currency
. The aggregate principal amount of Incremental Facilities on any date
commitments with respect thereto are first received, assuming such commitments
are fully drawn only on the date of receipt thereof, will not exceed, an
amount equal to, the Incremental Amount;
provided
that if the Incremental Amount is being determined on such date by reference to
clause (ii)
of the definition thereof, the Incremental Amount by which a specific Tranche
of Revolving Credit Commitments may be increased shall reference the Borrowing
Base applicable to that Tranche. Each Incremental Facility will be in an
integral multiple of $1,000,000 and in an aggregate principal amount that is
not less than $10,000,000 (or such lesser minimum amount approved by the
Administrative Agent in its reasonable discretion);
provided
that such amount may be less than such minimum amount or integral multiple
amount if such amount represents all the remaining availability under the
Incremental Amount at such time. Any Incremental Facility shall be denominated
in Dollars.
(d)
Incremental Lenders
. Incremental Facilities may be provided by any existing Lender (it being
understood that no existing Lender shall have an obligation to make, or
provide commitments with respect to, an Incremental Loan) or by any Additional
Lender. While existing Lenders may (but are not obligated to unless invited to
and so elect) participate in any syndication of an Incremental Facility and
may (but are not obligated to unless invited to and so elect) become lenders
with respect thereto, the existing Lenders will not have any right to
participate in any syndication of, and will not have any right of first
refusal or other right to provide all or any portion of, any Incremental
Facility or Incremental Loan except to the extent the Borrower and the
arrangers thereof, if any, in their discretion, choose to invite or include
any such existing Lender (which may or may not apply to all existing Lenders
and may or may not be
pro rata
among existing Lenders). Final allocations in respect of Incremental
Facilities will be made by the Borrower together with the arrangers thereof,
if any, in their discretion, on the terms permitted by this
Section 2.24
;
provided
that the lenders providing the Incremental Facilities will be reasonably
acceptable to (i) the Borrower and (ii) the Administrative Agent (except that,
in the case of
clause (ii)
, only to the extent such Person otherwise would have a consent right to an
assignment of such loans or commitments to such lender, such consent not to be
unreasonably withheld, conditioned or delayed).
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(e)
Incremental Facility Amendments; Use of Proceeds
. Each Incremental Facility will become effective pursuant to an amendment
(each, an "
Incremental Amendment
") to this Agreement and, as appropriate, the other Loan Documents, executed
by the Borrower and each Person providing such Incremental Facility and the
Administrative Agent. The Administrative Agent will promptly notify each
Lender as to the effectiveness of each Incremental Amendment. Incremental
Amendments may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Loan Documents as may be necessary,
advisable or appropriate, in the reasonable opinion of the Borrower in
consultation with the Administrative Agent, to effect the provisions of this
Section 2.24.
Each of the parties hereto hereby agrees that, upon the effectiveness of any
Incremental Amendment, this Agreement and the other Loan Documents, as
applicable, will be amended to the extent necessary to reflect the existence
and terms of the Incremental Facility and the Incremental Loans evidenced
thereby. This
Section 2.24
shall supersede any provisions in
Section 9.2
to the contrary. The Borrower may use the proceeds of the Incremental Loans
for any purpose not prohibited by this Agreement.
(f)
Conditions
. The effectiveness of Incremental Facilities under this Agreement will be
subject to the following conditions and any other conditions required by the
Lenders providing such Incremental Facility of any Class, and measured on the
date of the receipt of commitments under (assuming such commitments are fully
drawn only on the date of receipt) such Incremental Facility:
(i) no Event of Default (with respect to the Borrower and the Originators)
shall have occurred and be continuing or would result therefrom; and
(ii) the representations and warranties in the Loan Documents will be true
and correct in all material respects (except for representations and
warranties that are already qualified by materiality, which representations
and warranties will be true and correct in all respects) immediately prior to,
and after giving effect to, the receipt of commitments in respect of such
Incremental Facility.
(g)
Terms
. Each Incremental Amendment will set forth the amount and terms of the
relevant Incremental Facility. Each Incremental Facility will be documented as
an increase to the applicable Class and shall be on terms identical to those
applicable to such Class except with respect to any commitment, arrangement,
upfront or similar fees that may be agreed to among the Borrower and the
lenders providing such Incremental Facility.
(h)
Adjustments to Revolving Credit Loans
. On the effective date of each Incremental Facility, if there are Revolving
Credit Loans then outstanding, the Borrower shall prepay such Revolving Credit
Loans (and pay any additional amounts required pursuant to
Section 2.11
in connection therewith), and borrow Revolving Credit Loans from the Lender(s)
providing such Incremental Revolving Facility, as shall be necessary in order
that, after giving effect to such prepayments and borrowings, all Revolving
Credit Loans will be held ratably by the Revolving Lenders (including the
Lender(s) providing such Incremental Revolving Facility) in accordance with
their respective Revolving Credit Commitments after giving effect to the
applicable Incremental Revolving Facility.
SECTION III REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agents and the Lenders on the
Closing Date and at the time of each Credit Extension, that:
Section 3.1
No Material Adverse Effect
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Since the Closing Date, 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.
Section 3.2
Existence, Qualification and Power; Compliance with Laws
The Borrower (a) is a Person duly incorporated, organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation, organization or formation to the extent such concept exists in
such jurisdiction, (b) has all requisite organizational power and authority to
execute, deliver and perform its obligations under the Loan Documents to which
it is a party, (c) is duly qualified and in good standing (where relevant)
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, orders, writs and injunctions and (e) has all
requisite governmental licenses, authorizations, consents and approvals to
operate its business as currently conducted; except in each case referred to in
clauses (a)
,
(c)
,
(d)
or
(e)
, to the extent that failure to do so would not reasonably be expected to have
a Material Adverse Effect.
Section 3.3
Authorization; No Contravention
The execution, delivery and performance the Borrower of each Loan Document to
which the Borrower is a party, (a) have been duly authorized by all necessary
corporate or other organizational action, and (b) do not (i) contravene the
terms of any of the Borrower's Organization Documents, (ii) conflict with or
result in any breach or contravention of, or the creation of any Lien (other
than any Permitted Lien), or require any payment to be made under (x) any
Contractual Obligation to which such Person is a party or (y) 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 (iii)
violate any Law; except with respect to any violation, conflict, breach or
contravention or payment (but not creation of Liens) referred to in
clauses (ii)
and
(iii)
, to the extent that such violation, conflict, breach, contravention or
payment would not reasonably be expected to have a Material Adverse Effect.
Section 3.4
Governmental Authorization
No material approval, consent, exemption, authorization, or other action by,
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, the Borrower of this Agreement or any other Loan Document, the grant
by the Borrower of the Liens granted by it pursuant to the Security Documents,
the perfection (if and to the extent required by the Collateral Requirement)
or maintenance of the Liens created under the Security Documents (including
the priority thereof) or the exercise by any Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Security Documents, except for (i) approval, consent, exemption,
authorization, or other action by, or notice to, or filing necessary to
perfect the Liens on the Collateral granted by the Borrower in favor of the
Secured Parties (or release existing Liens) under applicable U.S. law, (ii)
the approvals, consents, exemptions, authorizations, actions, notices and
filings which have been duly obtained, taken, given or made and are in full
force and effect (except to the extent not required to be obtained, taken,
given or made or in be in full force and effect pursuant to the Collateral
Requirement), (iii) the PUC Initial Order and the PUC Final Order or (iv)
those approvals, consents, exemptions, authorizations or other actions,
notices or filings, the failure of which to obtain or make would not
reasonably be expected to have a Material Adverse Effect.
Section 3.5
Litigation
There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower, threatened in writing, at law, in equity, in
arbitration or before any Governmental Authority, by
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or against the Borrower or against any of its properties that have a
reasonable likelihood of adverse determination and such determination either
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
Section 3.6
Binding Effect
This Agreement and each other Loan Document to which it is a party has been
duly executed and delivered by the Borrower. This Agreement and each other
Loan Document to which it is a party constitutes, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance
with its terms, except as such enforceability may be limited by (i) Debtor
Relief Laws and by general principles of equity or (ii) the need for filings
and registrations necessary to create or perfect the Liens on the Collateral
granted by the Borrower in favor of the Secured Parties (
clauses (i)
and
(ii)
, the "
Enforcement Qualifications
").
Section 3.7
Taxes
Except as would not, either individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, each of the Borrower and the
Intermediate SPV has timely filed (or validly extended) all tax returns
required to have been filed, and has paid all Taxes levied or imposed upon it
or its properties, income, profits or assets, that are due and payable, in
each case including in its capacity as a withholding agent, except those which
are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP. Each of the
Borrower and the Intermediate SPV is (x) a wholly-owned direct subsidiary of a
US Person that is a corporation for US federal income tax purposes and (y) a
"disregarded entity" within the meaning of US Treasury Regulation (s)
301.7701-3 for US federal income tax purposes. Each of the Borrower and the
Intermediate SPV accounts for and treats the transactions contemplated by the
Purchase Agreements as the true sale, or absolute assignment, of all the
"Receivables" (as defined in the applicable Purchase Agreement) by the
Originators to the Intermediate SPV and by the Intermediate SPV to the
Borrower.
Section 3.8
ERISA Compliance
(a) No ERISA Event has occurred that, when taken together with all other
such ERISA Events for which liability is reasonably expected to occur, would
reasonably be expected to result in a Material Adverse Effect.
Section 3.9
Margin Regulations; Investment Company Act
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying Margin
Stock, 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 T, U or X of the Board of Governors of the United States
Federal Reserve System.
(b) The Borrower is not required to be registered as an "investment
company" under the Investment Company Act of 1940.
(c) The Borrower is not a "covered fund" under Section 13 of the U.S. Bank
Holding Company Act of 1956, as amended, and the applicable rules and
regulations thereunder (the "
Volcker Rule
"). In determining that the Borrower is not a "covered fund" under the Volcker
Rule, the Borrower is entitled to rely on the exemption from the definition of
"investment company" set forth in Section 3(c)(5)(A) or (B) of the Investment
Company Act.
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Section 3.10
Use of Proceeds
Except as otherwise provided in, and subject to the limitations set forth in,
Section 2.1
, the proceeds of the Revolving Credit Loans shall be used to purchase the
Accounts from Intermediate SPV pursuant to the Borrower Purchase Agreement and
for any other purpose not prohibited by this Agreement.
Section 3.11
Environmental Matters
Except with respect to any matters that, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect, the
Borrower (a) is and has been in compliance with Environmental Law, including
obtaining, maintaining and complying with any permit, license or other
approval required under any Environmental Law, (b) has not become subject to
any Environmental Liability, and (c) has not received notice of any pending or
threatened claim with respect to any actual or potential Environmental
Liability or related to any permit, license or other approval required under
Environmental Law.
Section 3.12
Disclosure
(a) No written report, financial statement, certificate or other written
information furnished by or on behalf of the Borrower concerning the Borrower
or Company and its Subsidiaries (other than projected financial information,
pro forma
financial information, budgets, estimates, other forward-looking statements
and information of a general economic or industry nature) to any 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 and as supplemented contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein (when taken as a whole), in the light of the circumstances under which
they were made, not materially misleading;
provided
, that the foregoing is hereby qualified to the extent of any projections or
other "forward-looking statements", which include statements that are
predictive in nature, depend upon or refer to future events or conditions, and
usually include words such as "expects," "anticipates," "intends," "plans,"
"believes," "predicts," "estimates" or similar expressions; and
provided
,
further
, that any statements concerning future financial performance, ongoing
business strategies or prospects or possible future actions are also
forward-looking statements; it being expressly understood and agreed that (i)
forward-looking statements are based on current expectations and projections
about future events and are subject to risks, uncertainties and the accuracy
of assumptions concerning the Borrower and its Subsidiaries or Affiliates, the
performance of the industries in which they do business and economic and
market factors, among other things, and (ii) such forward-looking statements
are not guarantees of future performance. With respect to written projected
financial information and
pro forma
financial information, the Borrower represents that such written information
was prepared in good faith based upon assumptions believed to be reasonable at
the time such information was furnished, it being understood that such
projected financial information and
pro forma
financial information are not to be viewed as facts or as a guarantee of
performance or achievement of any particular results, are subject to
significant uncertainties and contingencies, many of which are beyond the
control of the Borrower, and that actual results may vary from such forecasts
and that such variations may be material and that no assurance can be given
that the projected results will be realized.
(b) As of the Closing Date, the information included in the Beneficial
Ownership Certification is true and correct in all respects.
Section 3.13
Security Documents
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Except as otherwise contemplated hereby or under any other Loan Documents, the
provisions of the Security Documents, together with such filings and other
actions required to be taken hereby or by the applicable Security Documents,
are effective to create in favor of the Collateral Agent for the benefit of
the Secured Parties, a legal, valid, enforceable and perfected Lien on all
right, title and interest of the Borrower in the Collateral described therein
(to the extent that a Lien may be perfected by such filings and other actions)
subject to the Enforcement Qualifications. The provisions of
Section 2.21(a)(ii)
required to be effected prior to the Closing Date have been completed. The
assumptions in the legal opinions delivered to the Administrative Agent
pursuant to
Section 4.1(j)
and
Section 4.2(k)
are true and correct in all respects.
Section 3.14
Solvency
On the date hereof, and on the date of each Borrowing hereunder (after giving
effect to such Borrowing), the Borrower is Solvent.
Section 3.15
PATRIOT Act; Sanctions; Anti-Corruption
(a) To the extent applicable, each of the Company and its Subsidiaries, and
to the knowledge of the Company or such Subsidiary, their respective officers,
employees and directors , are in compliance with Anti-Corruption Laws,
Anti-Money Laundering Laws and Sanctions in all material respects.
(b) The Company has implemented and maintains in effect policies and
procedures designed to ensure compliance by the Company, its Subsidiaries and
their respective directors, officers and employees with Anti-Corruption Laws
and to ensure compliance by the Company and its Subsidiaries and the
respective officers and employees of the Company and its Subsidiaries with
Sanctions.
(c) None of the Company or its Subsidiaries, or to the knowledge of the
Company, any of their respective directors, officers or employees, in each
case, is owned or controlled by, or is acting or purporting to act on behalf
of, directly or indirectly, a Sanctioned Person.
(d) None of the Company, any Subsidiary, or to the knowledge of any the
Company or such Subsidiary, any of their respective directors, officers or
employees that will act in any capacity in connection with or benefit from the
credit facility established hereby, is a Sanctioned Person. No borrowing, use
of proceeds or other transaction contemplated by this agreement will violate
Anti-Corruption Laws or Sanctions. Neither the Company nor any of its
Subsidiaries will directly, or to the Company's or any such Subsidiary's
knowledge, indirectly, use the proceeds of the Loans, or lend, contribute or
otherwise make available such proceeds to any Subsidiary, joint venture
partner or other Person, (i) to fund any activities or business of or with any
Person, or in any country or territory, that, at the time of such funding, is
the target of Sanctions, or (ii) in any other manner that would result in a
violation of Sanctions by any Person (including any Person participating in
the Loans, whether as an Agent, Arranger, Lender, or otherwise).
For purposes of this Section 3.15, "knowledge" as to the Company and its
Subsidiaries means the actual knowledge of the President, CEO, any Executive
Vice President, General Counsel (or other chief legal officer) or Responsible
Officer of the Company, in each case, after due care and inquiry.
Section 3.16
Accounts
Without limiting the statements contained in any Borrowing Base Certificate,
the statements in each Borrowing Base Certificate are or will be (when such
Borrowing Base Certificate is delivered) true and correct in all material
respects. The Collateral Agent and the Co-Collateral Agent may rely, in
determining which Accounts are Eligible Non-Residential Accounts or Eligible
Residential Accounts, on all statements and representations made by the
Borrower with respect thereto. With respect to each Account
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at the time it is shown as an Eligible Non-Residential Account or an Eligible
Residential Account in a Borrowing Base Certificate:
(a) it is genuine and in all material respects what it purports to be, and
is not evidenced by a judgment;
(b) it arises out of a completed,
bona fide
sale and delivery of goods or rendition of service and substantially in
accordance with any purchase order, contract or other document relating
thereto; and
(c) it is for a sum certain, maturing as stated in the invoice covering
such sale or rendition.
Section 3.17
Borrowing Base Calculation
The calculation by the Borrower of each Borrowing Base in any Borrowing Base
Certificate delivered to the Administrative Agent and the valuation thereunder
is complete and accurate in all material respects as of the date of such
delivery.
Section 3.18
Deposit Accounts
Subject to
Section 2.21,
all deposit accounts owned by the Borrower are Controlled Accounts.
Section 3.19
Real Property / Labor Matters
The Borrower owns no Real Property.
The Borrower has no employees.
SECTION IV CONDITIONS PRECEDENT
Section 4.1
Conditions to Closing Date
The effectiveness of this Agreement and the agreement of each Lender to make
available to the Borrower its portion of the Revolving Credit Commitments (but
not the obligation to make Credit Extensions, which shall be subject to
Section 4.2
and
Section 4.3
hereof) is subject to the satisfaction (or waiver in accordance with
Section 9.2
) of the following conditions precedent:
(a) The Administrative Agent shall have received this Agreement, the
Borrower Collateral Agreement, the Intermediate Collateral Agreement, the
Intermediate Pledge Agreement and the other Security Documents required to be
executed on the Closing Date, in each case, executed and delivered by each of
the Borrower, Intermediate SPV, the Servicer and the Originators, in each
case, to the extent they are a party thereto.
(b) The Purchase Agreements shall have been executed, it being understood
that the Administrative Agent shall have the benefit of all deliverables
thereunder.
(c) All fees and expenses in connection with the Revolving Credit Facility
(including reasonable out-of-pocket legal fees and expenses) payable by the
Borrower to the Lenders and the Agents on or before the Closing Date shall
have been paid to the extent then due;
provided
that all such amounts shall be required to be paid, as a condition precedent
to the Closing Date, only to the extent invoiced at least one Business Day
prior to the Closing Date.
(d) The Administrative Agent shall have received a solvency certificate in
the form of
Exhibit H
from the chief financial officer of the Borrower with respect to the solvency
of the Borrower.
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(e) The Administrative Agent shall have received the following:
(i) a copy of the charter or other similar Organization Document of the
Borrower and each amendment thereto, certified (as of a date reasonably near
the Closing Date) as being a true and correct copy thereof by the Secretary of
State or other applicable Governmental Authority of the jurisdiction in which
the Borrower is organized or incorporated;
(ii) a copy of a certificate of the Secretary of State or other applicable
Governmental Authority of the jurisdiction in which the Borrower is organized,
dated within 30 days of the Closing Date, certifying that such Person is duly
organized and in good standing under the laws of such jurisdiction; and
(iii) a certificate of the Secretary, Assistant Secretary or other
appropriate Responsible Officer of the Borrower dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the
by-laws, or operating or partnership agreement of the Borrower as in effect on
the Closing Date and at all times since a date prior to the date of the
resolutions described in
clause (B)
below, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of the Borrower authorizing the
execution, delivery and performance of the Loan Documents to which such Person
is a party and, in the case of the Borrower, the borrowings hereunder, and
that such resolutions have not been modified, rescinded or amended and are in
full force and effect, (C) that the certificate or articles of incorporation
or formation, partnership agreement or other constitutive documents of the
Borrower have not been amended since the date the documents furnished pursuant
to
clause (i)
above were certified and (D) as to the incumbency and specimen signature of
each officer executing any Loan Document or any other document delivered in
connection herewith on behalf of the Borrower.
(f) All UCC financing statements in the jurisdiction of organization of the
Borrower and Intermediate SPV and filings with the United States Copyright
Office and the United States Patent and Trademark Office to be filed,
registered or recorded to perfect the Liens intended to be created by any
Security Document to the extent required by, and with the priority required
by, such Security Document shall have been delivered to the Collateral Agent
in appropriate form for filing, registration or recording and the Collateral
Agent shall have received all certificated pledged Capital Stock and
instruments, in each case, constituting Collateral in suitable form for
transfer by delivery or accompanied by instruments or transfer or assignment
duly executed in blank.
(g) (i) As of the Closing Date, the information included in the Beneficial
Ownership Certification is true and correct in all respects and (ii) at least
three days prior to the Closing Date, to the extent the Borrower qualifies as
a "legal entity customer" under the Beneficial Ownership Regulation, it shall
deliver a Beneficial Ownership Certification.
(h) The representations and warranties contained in
Section III
hereof, in Article V of the Purchase Agreements, in Section 4 of the Borrower
Collateral Agreement, in Section 4 of the Intermediate Collateral Agreement
and in Section 4 of the Intermediate Pledge Agreement shall be true and
correct in all material respects (except to the extent qualified by
materiality or Material Adverse Effect, in which case such representations
shall be true and correct in all respects).
(i) The Collateral Agent and the Co-Collateral Agent shall have received,
and be satisfied with, the final report in respect of the field exams
conducted by Charter Diligence Group on the Originators.
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(j) The Administrative Agent shall have received (i) an enforceability,
non-conflict, capacity and security creation and perfection opinion from Allen
Overy Shearman Sterling US LLP, addressed to the Agents and the Lenders, with
respect to matters of New York law and certain aspects of Delaware law, and
(ii) a capacity and non-conflict opinion delivered by in-house counsel of the
Company, addressed to the Agents and the Lenders, with respect to matters of
Hawaii law, in each case in form and substance reasonably satisfactory to the
Collateral Agent and the Co-Collateral Agent.
(k) The Borrower shall have delivered to the Administrative Agent an
officer's certificate certifying as to the matters set forth in
clauses (h)
and
(l)
of this
Section 4.1
.
(l) No Default or Event of Default shall have occurred and be continuing on
the Closing Date.
Section 4.2
Conditions to the Effective Date
. The agreement of each Lender to make the initial extension of credit
requested to be made by it hereunder is subject to the satisfaction (or waiver
in accordance with
Section 9.2
) of the following conditions precedent:
(a) The Closing Date shall have occurred.
(b) The Purchase Agreements shall have become effective.
(c) All fees and expenses in connection with the Revolving Credit Facility
(including reasonable out-of-pocket legal fees and expenses) payable by the
Borrower to the Lenders and the Agents on or before the Effective Date shall
have been paid to the extent then due;
provided
that all such amounts shall be required to be paid, as a condition precedent
to the Effective Date, only to the extent invoiced at least one Business Day
prior to the Effective Date.
(d) The Borrower shall have delivered to the Administrative Agent a
Borrowing Base Certificate as of the Effective Date.
(e) The Company and its Subsidiaries shall have Liquidity equal to or
greater than $200,000,000;
provided
that the Aggregate Excess Availability hereunder shall be equal to or greater
than $100,000,000.
(f) The Company shall have received the PUC Initial Order.
(g) The Effective Date shall occur on or prior to the Expiration Date.
(h) On or prior to the Effective Date, all deposit accounts where the
collection of customer accounts receivables have been historically received by
the Originators shall have been transferred to Intermediate SPV and become
Intermediate Accounts.
(i) On or prior to the Effective Date, the Borrower Accounts shall have
been established.
(j) On or prior to the Effective Date (or such period after the Effective
Date as may be agreed by the Administrative Agent), the Borrower and
Intermediate SPV shall have obtained Cash Management Control Agreements in
respect of all Intermediate Accounts and Borrower Accounts.
(k) The Administrative Agent shall have received (i) an opinion from Allen
Overy Shearman Sterling US LLP, addressed to the Agents and the Lenders, with
respect to the creation and perfection of the Collateral Agent's security
interest over the Intermediate Accounts, and the enforceability of the Cash
Management Control Agreements in respect thereto, as well as to matters
relating to substantive
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consolidation and the true sale nature of any transfers to the Borrower of
Accounts from Intermediate SPV, and to Intermediate SPV of Accounts from the
Originators, pursuant to the Purchase Agreements, and (ii) a capacity and
non-conflict opinion delivered by external counsel, addressed to the Agents
and the Lenders, with respect to matters of Hawaii law, in each case in form
and substance reasonably satisfactory to the Collateral Agent and the
Co-Collateral Agent.
(l) The Borrower and Intermediate SPV shall each have amended its
respective Organization Documents to satisfy the requirements of
Section 5.14(c)
in a manner reasonably satisfactory to the Collateral Agent and the
Co-Collateral Agent .
Section 4.3
Conditions to Each Post-Closing Extension of Credit
The agreement of each Lender to make any Credit Extension requested to be made
by it hereunder on any date, including on the Effective Date, (other than (x)
Extraordinary Advances and (y) a conversion of Loans to the other Type, or a
continuation of SOFR Loans) is subject to the satisfaction of the following
conditions precedent:
(a)
Representations and Warranties
. Each of the representations and warranties made by the Borrower in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date, except for
representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date (
provided
that, in each case such materiality qualifier shall not be applicable to any
representations or warranties that already are qualified or modified by
materiality or Material Adverse Effect).
(b)
No Default
. No Default or Event of Default shall have occurred and be continuing on such
date or immediately after giving effect to the extensions of credit requested
to be made on such date.
(c)
Borrowing Request
. The Administrative Agent and the Funding Agent shall have received a written
Borrowing Request in accordance with the requirements hereof.
(d)
Borrowing Base Limitations
. After giving effect thereto (and the use of the proceeds thereof): (i) the
Total Tranche A Revolving Credit Exposure would not exceed the Non-Residential
Line Cap at such time, (ii) the Total Tranche B Revolving Credit Exposure
would not exceed the Residential Line Cap, and (iii) the Total Revolving
Credit Exposure would not exceed the Aggregate Line Cap.
Each Borrowing of a Loan (other than (x) Extraordinary Advances and (y) a
conversion of Loans to the other Type, or a continuation of SOFR Loans) shall
constitute a representation and warranty by the Borrower as of the date of
such extension of credit that the conditions contained in
Section 4.2
and/or this
Section 4.3
, as applicable, have been satisfied.
Notwithstanding anything in this
Section 4.3
to the contrary, the effectiveness of any Extension Amendment shall be subject
only to the conditions precedent set forth in
Section 2.22(a)
and to such conditions as are mutually agreed between the Borrower and the
Lenders party to the Extension Amendment.
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SECTION V AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment hereunder,
any Loan or other Obligation (other than contingent obligations not yet due
and owing) hereunder which is accrued and payable shall remain unpaid or
unsatisfied, then after the Closing Date, the Borrower shall:
Section 5.1
Financial Statements, Certificates and Other Information
Deliver, or cause the Company to deliver, to the Administrative Agent for
prompt further distribution to each Lender each of the financial statements:
(a) (i) within 120 days after the end of each Fiscal Year of the Company,
Intermediate SPV and the Borrower, commencing with the Fiscal Year ending
December 31, 2024, (x) the Company's audited consolidated balance sheet and
related statements of operations, cash flows and changes in common stock as of
the end of and for such year, setting forth in each case in comparative form
the figures for the previous Fiscal Year, all reported on by Deloitte & Touche
LLP or other independent registered public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Company, and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, and (y) the internally prepared standalone balance sheet
and related statements of operations and cash flows of Intermediate SPV and
the Borrower, as of the end of and for such year, setting forth in each case
in comparative form the figures for the previous Fiscal Year, all certified by
a Responsible Officer of the Company to the effect that such standalone
financial statements present fairly in all material respects the financial
condition and results of operations of Intermediate SPV and the Borrower; (ii)
within 60 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year of the Company, Intermediate SPV and the Borrower, commencing
with the first such full Fiscal Quarter ending after the Closing Date, (x) the
Company's consolidated balance sheet and related statements of operations,
cash flows and changes in common stock as of the end of and for such Fiscal
Quarter and the then elapsed portion of the Fiscal Year, setting forth in each
case in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the previous
Fiscal Year, and (y) the internally prepared standalone balance sheet and
related statements of operations and cash flows of Intermediate SPV and the
Borrower, as of the end of and for such Fiscal Quarter and the then elapsed
portion of the Fiscal Year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous Fiscal Year, and (iii) at any
time a Covenant Trigger Event is in effect, within 30 days after the end of
each Fiscal Month of the Company, Intermediate SPV and the Borrower,
commencing with the first such full Fiscal Month ending after the occurrence
of such Covenant Trigger Event until the first full Fiscal Month immediately
preceding that in which such Covenant Trigger Event is cured or ceases to
exist, the Company's internally prepared standalone balance sheet and related
statements of operations as of the end of and for such Fiscal Month and the
then elapsed portion of the Fiscal Year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or,
in the case of the balance sheet, as of the end of) the previous Fiscal Year,
and cash flow statement line items reasonably necessary to calculate the
Consolidated Fixed Charge Coverage Ratio for the relevant Test Period; in the
case of the foregoing
clauses (ii)
and
(iii)
, all certified by a Responsible Officer of the Company, Intermediate SPV or
the Borrower, as applicable, as presenting fairly in all material respects the
financial condition and results of operations of the Company, Intermediate SPV
or the Borrower, as applicable, and their respective consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes;
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(b) concurrently with the delivery of any financial statements pursuant to
Sections 5.1(a)(i)
and
5.1(a)(ii)
, a Compliance Certificate of a Responsible Officer of the Borrower that shall
include, or have appended thereto, a statement that such Responsible Officer
of the Borrower has obtained no knowledge of any continuing Event of Default,
or if any such Event of Default has occurred and is continuing, specifying the
nature and extent thereof and any action taken or proposed to be taken with
respect thereto (which shall include calculations with respect to the
Financial Covenant irrespective of whether a Covenant Trigger Event exists at
such time);
(c) from and after the Effective Date, (i) unless
clause (ii)
below applies, not later than 5:00 p.m. (New York City time) on or before the 20
th
day of each Fiscal Month or more frequently as the Borrower may elect, so long
as the frequency of delivery is maintained by the Borrower for the immediately
following sixty (60) day period, and (ii) during any period in which (w) a
Dominion Period is in effect and in respect of which the Administrative Agent
has delivered notice thereof, or (x) at any time Aggregate Excess Availability
is equal to or less than $125,000,000, (y) at any time Residential Excess
Availability is equal to or less than $32,500,000 or (z) at any time
Non-Residential Excess Availability is equal to or less than $92,500,000 not
later than 5:00 p.m. (New York City time) on or before Wednesday of each week,
in each case, a borrowing base certificate setting forth the Non-Residential
Borrowing Base and the Residential Borrowing Base (in each case with
supporting calculations in reasonable detail) substantially in the form of
Exhibit I
(each, a "
Borrowing Base Certificate
"), which shall be prepared as of the last Business Day of the preceding
Fiscal Month in the case of each subsequent Borrowing Base Certificate (or, if
any such Borrowing Base Certificate is delivered more frequently than monthly,
as of the last Business Day of the week or other applicable period preceding
such delivery). Each such Borrowing Base Certificate shall include such
supporting information as may be reasonably requested from time to time by the
Administrative Agent;
(d) one time during each Fiscal Year of the Company (or two times during
the next 12 Fiscal Months of the Company after the date (i) the Aggregate
Excess Availability is less than the greater of 15% of the Line Cap and
$31,250,000 for five consecutive Business Days, (ii) the Non-Residential
Excess Availability is less than the greater of 15% of the Non-Residential
Line Cap and $23,125,000 for five consecutive Business Days, or (iii) the
Residential Excess Availability is less than the greater of 15% of the
Residential Line Cap and $8,125,000 for five consecutive Business Days) and at
any time that any Event of Default exists, as often as the Administrative
Agent reasonably requests, a collateral examination of the Accounts, Related
Rights and Related Security of the Borrower and the Company, in each case, in
scope and form, and conducted by the Administrative Agent or from a
third-party appraiser and a third-party consultant, respectively, reasonably
satisfactory to the Administrative Agent and at the sole cost and expense of
the Borrower;
provided
that the Administrative Agent shall determine the scope of the collateral
examination in consultation with the Co-Collateral Agent. The collateral
examinations described herein shall be carried out by the Administrative Agent
at the request of any Lender, subject to the limitations and conditions set
forth in this
clause (d)
. The Co-Collateral Agent shall have the right to participate with the
Administrative Agent in the initial review of findings of any such collateral
examination, prior to discussion with the Borrower or the Company. The
Administrative Agent shall deliver to each Agent and Lender, within five
Business Days of receipt thereof, each final report delivered to the
Administrative Agent pursuant to this
clause (d)
;
(e) promptly after the written request by any Lender, customary
documentation and other information that such Lender reasonably requests in
writing in order to comply with its ongoing obligations under applicable "know
your customer" and anti-money laundering rules and regulations, including the
PATRIOT Act and the Beneficial Ownership Regulation;
(f) (i) on each Business Day during any Dominion Period, not later than
12:00 p.m. (noon) (Hawaii Standard Time), an account of all payments and
collections received by the Borrower during the
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prior Business Day in respect of Accounts, identifying whether each such
payment or collection results from Residential Accounts or Non-Residential
Accounts, and (ii) on the first Business Day of each week during any Dominion
Period, not later than 5:00 p.m. (Hawaii Standard Time), a detailed account or
registry of all payments and collections received during the prior week,
identifying whether each such payment or collection results from Eligible
Residential Accounts or Eligible Non-Residential Accounts; and
(g) promptly, such additional financial and other information regarding the
business, legal, financial or corporate affairs of the Borrower or the Company
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 5.1(a)
(to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered Electronically and, if so delivered, shall be
deemed to have been delivered by the Borrower on the date (i) on which such
materials are publicly available as posted on EDGAR; or (ii) on which such
documents are posted on the Company's behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether made available by the
Administrative Agent);
provided
that the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (
i.e.
, soft copies) of such documents. The Administrative Agent shall have no
obligation to request the delivery of or to maintain paper copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request by a Lender for
delivery, and each Lender shall be solely responsible for timely accessing
posted documents or requesting delivery of paper copies of such document to it
and maintaining its copies of such documents.
Section 5.2
Borrower Purchase Agreement
Promptly deliver to the Administrative Agent copies of all notices delivered
to it under the Borrower Purchase Agreement and to exercise its rights to make
requests for information under the Borrower Purchase Agreement as directed by
the Administrative Agent. If the Administrative Agent directs the Borrower to
elect the reconveyance of any Subject Receivable (as defined in the Borrower
Purchase Agreement), the Borrower shall notify Intermediate SPV, as seller
under the Borrower Purchase Agreement, promptly and in any event within two
Business Days after the Administrative Agent's direction. The Administrative
Agent shall give to the Borrower the directions described in the two preceding
sentences at the request of any Lender. In addition, the Borrower agrees that
it shall not (i) provide any consent requested under, or agree to any
amendment or waiver of, the Borrower Purchase Agreement without the prior
written approval of the Required Lenders, such approval not to be unreasonably
withheld, delayed or conditioned, or (ii) terminate the Borrower Purchase
Agreement, without the prior written approval of all Lenders.
Section 5.3
Payment of Taxes
Pay, discharge or otherwise satisfy as the same shall become due and payable,
all its obligations and liabilities in respect of Taxes imposed upon it or
upon its income or profits or in respect of its property, in each case
including in its capacity as a withholding agent, except, in each case, (a) to
the extent any such Tax is being contested in good faith and by appropriate
proceedings and for which adequate reserves have been established in
accordance with GAAP and (b) the failure to make payment pending such contest
would not reasonably be expected to result in a Material Adverse Effect.
Section 5.4
Preservation of Existence, Etc.
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(a) Preserve, renew and maintain in full force and effect its legal
existence under the Laws of the jurisdiction of its organization; and
(b) take all reasonable action to maintain all rights, privileges
(including its good standing where applicable in the relevant jurisdictions),
permits, licenses and franchises material to the conduct of its business,
except, in the case of this
Section 5.4(b)
, to the extent that failure to do so would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
Section 5.5
Insurance
Maintain with insurance companies that the Borrower believes (in the good
faith judgment of its management) are financially sound and reputable at the
time the relevant coverage is placed or renewed, insurance with respect to its
properties and business against loss or damage of the kinds, types and amounts
reasonably required by the Collateral Agent and the Co-Collateral Agent. On
the date specified in
Section 5.10(b)
, the Borrower shall provide evidence of each such policy of insurance and
each such policy shall as appropriate (i) name the Collateral Agent as
additional insured thereunder or (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement that names the Collateral
Agent, on behalf of the Lenders, as loss payee thereunder.
Section 5.6
Inspection Rights
Permit representatives and independent contractors of the Administrative Agent
to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants (subject to such
accountants' customary policies and procedures), 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, it being agreed that, while the provisions of this
Section 5.6
are for the benefit of the Administrative Agent and the Lenders, only the
Administrative Agent on behalf of the Lenders may exercise rights under this
Section 5.6
;
provided
that the Administrative Agent shall not exercise such rights more often than
one time during any calendar year and such time shall be at the Borrower's
expense;
provided
,
further
,
that during the continuation of an Event of Default, the Administrative Agent
(or any of its respective representatives or independent contractors), on
behalf of the Lenders, may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and upon reasonable advance
notice. The Administrative Agent shall give the Borrower the opportunity to
participate in any discussions with the Borrower's independent public
accountants.
Section 5.7
Notices
Promptly (and in any event within five days) after a Responsible Officer of
the Borrower has obtained knowledge thereof, notify the Administrative Agent:
(a) of the occurrence of any Event of Default or any Purchase and
Contribution Termination Event (as defined in either Purchase Agreement)
(except to the extent the Administrative Agent shall have previously furnished
to the Borrower written notice of such Event of Default or Purchase and
Contribution Termination Event), which notice shall be deemed given hereunder
if such notice is provided pursuant to Section 6.1(b) of either Purchase
Agreement;
(b) of the occurrence of an ERISA Event which would reasonably be expected
to result in a Material Adverse Effect;
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(c) of the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit, litigation or
proceeding, whether at law or in equity by or before any Governmental
Authority against the Borrower that would reasonably be expected to result in
a Material Adverse Effect;
(d) of the occurrence of a Covenant Trigger Event, a Liquidity Condition, a
Dominion Period Availability Condition, any Material Adverse Judgment or a
circumstance that, with the giving of notice, would commence a Dominion
Period; and
(e) of the occurrence of any other matter or development that has had or
would reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this
Section 5.7
shall be accompanied by a written statement of a Responsible Officer of the
Borrower (x) that such notice is being delivered pursuant to
Section 5.7(a)
,
(b)
,
(c)
,
(d)
or
(e)
(as applicable) and (y) setting forth details of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take
with respect thereto.
Section 5.8
Additional Collateral
At the Borrower's expense, subject to the terms, conditions and provisions of
the Collateral Requirement and any applicable limitation in any Security
Document, take all action necessary or reasonably requested by the Collateral
Agent to ensure that the Collateral Requirement continues to be satisfied.
Section 5.9
Use of Proceeds
Use the proceeds of the Revolving Credit Loans issued hereunder only (a)
first, to purchase the Accounts from Intermediate SPV pursuant to the Borrower
Purchase Agreement and (b) to the extent of any excess proceeds, for any other
purpose not prohibited by this Agreement;
provided
that no part of the proceeds of any Loan will be used, directly or to
Borrowers' knowledge after due care and inquiry, indirectly, to (i) make any
payments to a Sanctioned Person, to fund any investments, loans or
contributions in, or otherwise make such proceeds available to, a Sanctioned
Person, to fund any operations, activities or business of a Sanctioned Person,
or in any other manner that would result in a violation of Sanctions by any
Person; or (ii) in furtherance of an offer, payment, promise to pay, or
authorization of the payment or giving of money, or anything else of value, to
any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money
Laundering Laws.
Section 5.10
Further Assurances; Post-Closing Obligations
(a) Promptly upon reasonable request by the Collateral Agent or the
Co-Collateral Agent (i) correct any mutually identified material defect or
error that may be discovered in the execution, acknowledgment, filing or
recordation of any Security Document or other document or instrument relating
to any Collateral, and (ii) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, certificates, assurances and other instruments as the Collateral
Agent or the Co-Collateral Agent, as applicable, may reasonably request from
time to time in order to carry out more effectively the purposes of the
Security Documents, to the extent required pursuant to the Collateral
Requirement and subject in all respects to the limitations therein.
(b) No later than the earlier of (i) the date that is 45 days after the
Closing Date, and (ii) the Effective Date (or such longer period of time
reasonably acceptable to the Collateral Agent and the Co-Collateral Agent),
the Borrower shall deliver to the Collateral Agent and the Co-Collateral Agent
evidence
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that the insurance requirements in
Section 5.5
hereof have been satisfied (including, for the avoidance of doubt, delivery of
the insurance policies and endorsements described therein).
Section 5.11
Tax Status
The Borrower will remain a wholly-owned direct subsidiary of a US Person that
is a corporation for US federal income tax purposes. No action will be taken
that would cause the Borrower to be treated other than as a "disregarded
entity" within the meaning of US Treasury Regulation (s) 301.7701-3 for US
federal income tax purposes. The Borrower shall not account for or treat the
transactions contemplated by the Purchase Agreements in any manner other than
as the true sale, or absolute assignment, of all the "Receivables" (as defined
in the Borrower Purchase Agreement) by the Intermediate SPV to the Borrower.
Section 5.12
Compliance with Laws.
(a) Comply in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its business
or property, except if the failure to comply therewith would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) Comply with all applicable (i) Sanctions, (ii) Anti-Corruption Laws and
(iii) Anti-Money Laundering Laws (with respect to
clauses (ii)
and
(iii)
hereof, in all material respects). The Borrower shall implement and maintain
in effect policies and procedures reasonably designed to ensure compliance by
the Borrower, its Subsidiaries and their respective directors, officers and
employees with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.
Section 5.13
Books and Records
Maintain proper books of record and account, in which entries that are full,
true and correct in all material respects and are in conformity with GAAP and
which reflect all material financial transactions and matters involving the
assets and business of the Borrower.
Section 5.14
Separate Existence
The Borrower hereby acknowledges that the Agents and the Lenders are entering
into the transactions contemplated by this Agreement and the other Loan
Documents in reliance upon the Borrower's identity as a legal entity separate
from Intermediate SPV, the Servicer, the Company each of the Originators and
their respective Affiliates. Therefore, from and after the date hereof, each
of the Borrower, Intermediate SPV, the Servicer and the Originators shall take
all steps necessary to make it apparent to third Persons that the Borrower is
an entity with assets and liabilities distinct from those of Intermediate SPV,
the Servicer, the Originators and any other Person, and is not a division of
Intermediate SPV, the Servicer, the Originators, their respective Affiliates
or any other Person. Without limiting the generality of the foregoing and in
addition to and consistent with the other covenants set forth herein, the
Borrower shall take such actions as shall be required in order that:
(a) The Borrower will be a limited liability company whose primary
activities are restricted in its LLC Agreement to: (i) purchasing, accepting
capital contributions of or otherwise acquiring from Intermediate SPV and
holding, selling, transferring, conveying or pledging or otherwise exercising
ownership rights with respect to the Pool Assets and the proceeds thereof,
(ii) entering and performing its obligations in accordance with any agreement
providing for the sale, transfer or pledge of Pool Assets, (iii) borrowing
money, or otherwise financing, or receiving capital contributions, consistent
with the provisions of the Loan Documents; (iv) pledging or otherwise granting
a security interest in Pool Assets to secure such
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borrowing or other obligations of the Borrower; (v) entering into any
agreement relating to any Accounts that provides for the administration,
servicing and collection of amounts due on the Pool Assets; (vi) making
Investments, Dispositions and Restricted Payments permitted by this Agreement;
(vii) filing tax reports and paying Taxes in the ordinary course (and
contesting any Taxes), (viii) preparing reports to Governmental Authorities
and to its equityholders, (ix)
participating in tax, accounting and other administrative matters, including,
but not limited to, preparing the financial reports and related certificates
required to be delivered to the Administrative Agent and the Lenders pursuant
to
Section 5.01
, (x) issuing limited liability company interests as provided for in its
limited liability company agreement and any other securities deemed
appropriate by its board of managers; (xi) taking any and all other actions
necessary to maintain its existence as a limited liability company in good
standing under the laws of the State of Delaware and to qualify the Borrower
to do business as a foreign entity in any other state in which such
qualification is required; (xii) paying the organizational, start-up and
transaction expenses of the Borrower; and (xiii) engaging in any lawful act or
activity and exercising any powers permitted to limited liability companies
organized under the laws of the State of Delaware that are related or
incidental to and necessary, convenient or advisable for the accomplishment of
the above-mentioned purposes (including the establishment of bank accounts and
the entering into referral, management, servicing and administration
agreements).
(b) The Borrower shall not engage in any business or activity except as is
consistent with the Loan Documents and permitted under its limited liability
company agreement and shall not incur any Indebtedness other than as permitted
by the Loan Documents.
(c) From and after the Effective Date, (i) not less than one member of the
Borrower's board of managers (the "
Independent Manager
") shall be a natural person who (A) shall not have been at the time of such
Person's appointment or at any time during the preceding five years and shall
not be as long as such person is a director or manager of the Borrower (1) a
director, officer, employee, partner, shareholder, member, manager or
Affiliate of any of the following Persons (collectively, the "
Independent Parties
"): the Servicer, any of the Originators, the Company or any of their
respective Subsidiaries or Affiliates (other than Intermediate SPV or another
special purpose entity which is a Subsidiary or Affiliate of the Servicer or
the Company), (2) a supplier to any of the Independent Parties, (3) the
beneficial owner (at the time of such individual's appointment as an
Independent Manager or at any time thereafter while serving as an Independent
Manager) of any of the outstanding membership or other equity interests of the
Servicer, the Company or any of their respective Subsidiaries or Affiliates
having general voting rights, (4) a Person controlling or under common control
with any director, officer, employee, partner, shareholder, member, manager,
affiliate or supplier of any of the Independent Parties, or (5) a member of
the immediate family of any director, officer, employee, partner, shareholder,
member, manager, affiliate or supplier of any of the Independent Parties; (B)
has not less than three years' experience in serving as an independent
director or manager for special purpose vehicles engaged in securitization
and/or structured financing transactions; (C) is an independent director or
manager provided by a nationally recognized company that provides independent
directors or managers and also provides other corporate services in the
ordinary course of its business; and (D) is otherwise reasonably acceptable to
the Administrative Agent as evidenced in a writing signed by the Administrative
Agent;
provided
,
however
, that the same individual may serve as Independent Manager for each of the
Borrower and Intermediate SPV. Under this
clause (c)
, the term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of management, policies or activities
of a Person, whether through ownership of voting securities or general
partnership or managing member interests, by contract or otherwise.
"Controlling" and "controlled" shall have correlative meanings. Without
limiting the generality of the foregoing, a Person shall be deemed to Control
any other Person in which it owns, directly or indirectly, a majority of the
ownership interests; and (ii) the operating agreement of the Borrower shall
provide that: (A) the Borrower's board of managers or other governing body
shall not approve, or take any other action to cause the filing of, a
voluntary bankruptcy petition with respect to the Borrower, a dissolution or
merger of the Borrower, an assignment for the benefit of creditors or a sale
of all or substantially all of its assets, in any case unless the Independent
Manager shall approve the taking of
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such action in writing before the taking of such action, and (B) such
provision and each other provision requiring an Independent Manager cannot be
amended without the prior written consent of the Independent Manager.
(d) The Independent Manager shall not at any time serve as a trustee in
bankruptcy for the Borrower, the Servicer, any Originator or any of their
respective Affiliates.
(e) The Borrower shall maintain its Organization Documents in conformity
with this Agreement, such that it does not amend, restate, supplement or
otherwise modify its ability to comply with the terms and provisions of any of
the Loan Documents.
(f) The Borrower shall conduct its affairs strictly in accordance with its
Organization Documents and observe all necessary, appropriate and customary
company formalities, including, but not limited to, holding all regular and
special members' and board of manager's meetings appropriate to authorize all
limited liability company action, keeping separate and accurate minutes of its
meetings, passing all resolutions or consents necessary to authorize actions
taken or to be taken, and maintaining accurate and separate books, records and
accounts, including, but not limited to, payroll and intercompany transaction
accounts;
provided
that the Borrower's assets and liabilities may be included in a consolidated
financial statement issued by an affiliate of the Borrower as set forth in
clause (l)
.
(g) The Borrower will have no employees and any consultant or agent of the
Borrower will be compensated from the Borrower's funds for services provided
to the Borrower, and to the extent that Borrower shares the same officers or
other employees the Servicer or any Originator (or any other Affiliate
thereof), the salaries and expenses relating to providing benefits to such
officers and other employees shall be fairly allocated among such entities,
and each such entity shall bear its fair share of the salary and benefit costs
associated with such common officers and employees.
(h) The Borrower will contract with the Servicer to perform for the
Borrower all operations required on a daily basis to service the Pool
Receivables as set forth in the Purchase Agreements. To the extent, if any,
that the Borrower (or any Affiliate thereof) shares items of expenses, such as
legal, auditing and other professional services, such expenses will be
allocated to the extent practical on the basis of actual use or the value of
services rendered, and otherwise on a basis reasonably related to the actual
use or the value of services rendered; it being understood that Servicer shall
pay all expenses relating to the preparation, negotiation, execution and
delivery of the Loan Documents, including legal, agency and other fees.
(i) The Borrower's operating expenses will not be paid by the Servicer, any
Originator or any Affiliate thereof (other than certain organizational
expenses paid by the Servicer and other than in the performance by the
Servicer of servicing activities pursuant to the Loan Documents).
(j) The Borrower will have its own separate stationery.
(k) The Borrower's books and records will be maintained separately from
those of the Servicer, the Company, Intermediate SPV, each of the Originators
and any other Affiliate thereof and in a manner such that it will not be
difficult or costly to segregate, ascertain or otherwise identify the assets
and liabilities of Borrower;
provided
that the Borrower's assets and liabilities may be included in a consolidated
financial statement issued by an affiliate of the Borrower as set forth in
clause (l)
.
(l) All financial statements of Intermediate SPV, the Servicer, any
Originator or any Affiliate thereof that are consolidated to include the
Borrower will disclose (in such financial statements or in the
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notes thereto) that the assets of the Borrower are not available to pay
creditors of Intermediate SPV, the Servicer, any Originator or any Affiliates
thereof.
(m) The Borrower's assets will be maintained in a manner that facilitates
their identification and segregation from those of Intermediate SPV, the
Servicer, the Originators or any Affiliates thereof.
(n) The Borrower will strictly observe limited liability company
formalities in its dealings with Intermediate SPV, the Servicer, the
Originators or any Affiliates thereof, and funds or other assets of the
Borrower will not be commingled with those of Intermediate SPV, the Servicer,
the Originators or any Affiliates thereof except in the case of the Servicer
as permitted by this Agreement in connection with servicing the Pool
Receivables. The Borrower shall not maintain joint bank accounts or other
depository accounts to which Intermediate SPV, the Servicer, any Originator or
any Affiliate thereof has independent access. The Borrower is not named, and
has not entered into any agreement to be named, directly or indirectly, as a
direct or contingent beneficiary or loss payee on any insurance policy with
respect to any loss relating to the property of Intermediate SPV, the
Servicer, any Originator or any Subsidiaries or other Affiliates thereof,
except that the Borrower may be included in the errors and omissions policy
that the Servicer maintains on behalf of its subsidiaries. The Borrower will
pay to the Servicer (or will be allocated the expense of) the marginal
increase or, in the absence of such increase, the market amount of its portion
of the premium payable with respect to any insurance policy that covers the
Borrower and the Servicer.
(o) The Borrower will maintain arm's-length relationships with the Servicer
and each Originator (and any Affiliates thereof).
(p) To the extent that the Borrower and the Company (or any Subsidiary or
Affiliate thereof) have offices in the same location, there shall be a fair
and appropriate allocation of overhead costs between them, and each shall bear
its fair share of such expense.
(q) The Borrower shall not guarantee or otherwise become liable for, or
pledge its assets to secure, the debt or other obligations of the Servicer,
any Originator or any other Person.
SECTION VI NEGATIVE COVENANTS
The Borrower agrees that until the Obligations have been paid in full and all
Revolving Credit Commitments have been terminated:
Section 6.1
Financial Covenant
Upon the occurrence and during the continuance of a Covenant Trigger Event,
the Borrower shall not permit (a) as of the last day of the most recently
ended Test Period prior to the occurrence of such Covenant Trigger Event and
(b) as of the last day of each Test Period ended thereafter during the
continuance of such Covenant Trigger Event, the Consolidated Fixed Charge
Coverage Ratio of the Company and its Subsidiaries to be less than 1.00 to
1.00. To the extent required to be tested with respect to any Test Period
pursuant to the preceding sentence, compliance with this
Section 6.1
shall be calculated in the Compliance Certificate for the applicable Test
Period delivered pursuant to
Section 5.1(b)
.
Section 6.2
Limitation on Indebtedness
The Borrower shall not, directly or indirectly, create, incur, assume,
guaranty or suffer to exist any Indebtedness or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
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(a) Indebtedness pursuant to any Loan Document;
(b) to the extent constituting Indebtedness, Cash Management Obligations
and other Indebtedness in respect of Cash Management Services in the ordinary
course of business and Indebtedness arising from the endorsement of
instruments or other payment items for deposit and the honoring by a bank or
other financial institution of instruments or other payment items drawn
against insufficient funds; or
(c) to the extent constituting Indebtedness, judgments, decrees,
attachments or awards not constituting an Event of Default under
Section 7.1(h)
.
To the extent otherwise constituting Indebtedness, the accrual of interest,
the accretion of accreted value and the payment of interest in the form of
additional Indebtedness shall be deemed not to be Indebtedness for purposes of
this
Section 6.2
. The principal amount of any non-interest bearing Indebtedness or other
discount security constituting Indebtedness at any date shall be the accreted
amount thereof.
Section 6.3
Sales, Liens, etc.
Except as otherwise provided herein, the Borrower shall not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Lien (other than a First Priority Priming Lien) upon (including,
without limitation, the filing of any financing statement) or with respect to,
any Pool Receivable or other Pool Asset, or any of its other assets, or assign
any right to receive income in respect thereof, except:
(a) Liens for Taxes, or other statutory obligations, not at the time due
and payable or that are being contested in good faith by appropriate
proceedings as to which no Collateral would become subject by forfeiture or
loss as a result of such contest (
provided
that adequate reserves with respect to such proceedings are maintained on the
books of the Borrower in accordance with GAAP);
(b) Liens created pursuant to the Loan Documents;
(c) Liens in connection with attachments or judgments or orders in
circumstances not constituting an Event of Default under
Section 7.1(h)
;
(d) (i) Liens of a collection bank arising under Section 4-208 of the
Uniform Commercial Code on the items in the course of collection, (ii)
customary Liens in favor of credit card or merchant processors as described in
Section 2.21(c)
and (iii) bankers' Liens, rights of setoff and other similar Liens existing
solely with respect to accounts and Cash and Cash Equivalents on deposit in
accounts maintained by the Borrower (including any restriction on the use of
such Cash and Cash Equivalents or investment property), in each case under this
clause (iii)
granted in the ordinary course of business or consistent with past practice in
favor of the banks or other financial or depositary institution with which
such accounts are maintained, securing amounts owing to such Person with
respect to Cash Management Services (including operating account arrangements
and those involving pooled accounts and netting arrangements);
provided
that, in the case of this
clause (iii)
, (x) unless such Liens arise by operation of applicable law, in no case shall
any such Liens secure (either directly or indirectly) any Indebtedness for
borrowed money and (y) Eligible Reserves may be established with respect to
any such Liens to the extent such Liens constitute First Priority Priming
Liens;
(e) Disposition, discount or compromise of accounts receivable in
connection with the collection thereof in the ordinary course of business or
consistent with past practice (and not for financing purposes);
provided
,
however
, that the Borrower shall not be otherwise permitted to Dispose of (as opposed
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to discount or compromise) Eligible Residential Accounts or Eligible
Non-Residential Accounts in reliance of this
Section 6.3
;
(f) (i) Dispositions of cash and Cash Equivalents in the ordinary course of
business, and (ii) Dispositions constituting Investments permitted under
Section 6.7
or Restricted Payments permitted under
Section 6.6
; or
(g) reconveyances to the extent required or permitted under Section 3.4 of the
Borrower Purchase Agreement, and (ii) payments of the Servicing Fee and
Servicing Expenses pursuant to Section 8.1(c) of the Borrower Purchase
Agreement (subject to
Section 2.3(b)(iii)
at any time that an Application Event has occurred and is continuing).
Section 6.4
Limitation on Fundamental Changes
The Borrower shall not, without the prior written consent of all Lenders,
permit itself (i) to merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) any of the Accounts that are owned by it (whether now owned or
hereafter acquired) to, any Person (other than repurchases pursuant to the
Borrower Purchase Agreement) or (ii) to be owned by any Person other than
Intermediate SPV. The Borrower shall provide the Collateral Agent with at
least ten days' prior written notice (or such shorter period as the Collateral
Agent may agree in its discretion) before making any change in the Borrower's
legal name, chief executive office, location of organization or the making of
any other change in the Borrower's identity or corporate structure that could
render any UCC financing statement filed in connection with this Agreement or
any other Loan Document "seriously misleading" as such term (or similar term)
is used in the applicable UCC; each notice to the Collateral Agent pursuant to
this sentence shall set forth the applicable change and the proposed effective
date thereof. The Borrower will also maintain and implement administrative and
operating procedures (including an ability to recreate records evidencing Pool
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records,
computer tapes and disks and other information reasonably necessary or
advisable for the collection of all Pool Receivables (including records
adequate to permit the daily identification of each Pool Receivable and all
Collections of and adjustments to each existing Pool Receivable).
Section 6.5
Certain Agreements
Except as provided in
Section 4.2(l)
, without the prior written consent of the Required Lenders, the Borrower
shall not amend, modify, waive, revoke or terminate any provision of the
Borrower's Organization Documents which requires the consent of the
Independent Manager or in a manner which could be adverse to the Lenders or
the Agents.
Section 6.6
Limitation on Restricted Payments
The Borrower shall not (i) declare or pay any Restricted Payment or (ii) make
any payment in cash pursuant to Section 3.2 of the Borrower Purchase
Agreement, except:
(a) Restricted Payments or payments in cash pursuant to Section 3.2 of the
Borrower Purchase Agreement so long as the Payment Conditions have been
satisfied on a
pro forma
basis (each Restricted Payment subject to the satisfaction of this
Section 6.6(a)
, a "
Permitted Payment
") (it being understood that the making of a Permitted Payment shall
constitute a representation and warranty by the Borrower as of the date of
such Permitted Payment that the conditions set forth in this
Section 6.6(a)
were satisfied as of the date of such Permitted Payment);
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(b) Restricted Payments or payments in cash pursuant to Section 3.2 of the
Borrower Purchase Agreement, so long as immediately prior to, and after giving
pro forma
effect to, such Restricted Payment or payment in cash, the Total Revolving
Credit Exposure is equal to $0;
provided
that the Borrower shall be required to deliver an updated Borrowing Base
Certificate in connection with the first request for a Credit Extension
subsequent to the making of any Restricted Payment or payment in cash in
accordance with this
Section 6.6(b); or
(c) the Borrower may make any Restricted Payment in respect of Permitted
Tax Distributions so long as no Event of Default has occurred and is
continuing (it being understood that the making of a Permitted Tax
Distribution shall constitute a representation and warranty by the Borrower as
of the date of such Permitted Tax Distribution that the conditions set forth
in this
Section 6.6(c)
were satisfied as of the date of such Permitted Tax Distribution ).
Section 6.7
Limitation on Investments
The Borrower shall not make any Investment, except:
(a) Investments in Cash and Cash Equivalents;
(b) [reserved];
(c) extensions of trade credit or the holding of receivables in the
ordinary course of business or consistent with past practice and Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors and other credits to suppliers in the ordinary course
of business or consistent with past practice;
(d) deposits made in the ordinary course of business or consistent with
past practice to secure the performance of leases or in connection with
bidding on government contracts; or
(e) Investments consisting of Liens permitted under
Section 6.3
.
Section 6.8
Limitation on Transactions with Affiliates
The Borrower shall not into any transaction, including any purchase, sale,
lease or exchange of Property, the rendering of any service or the payment of
any management, advisory or similar fees, with any Affiliate, other than (a)
as expressly contemplated by the Purchase Agreements, this Agreement or the
other Loan Documents (including in order to comply with
Section 5.14
hereof), (b) any Restricted Payment or other payment contemplated by
Section 6.6
or Investment contemplated by
Section 6.7
, (c) other transactions which are (A) in the ordinary course of business, (B)
pursuant to the reasonable requirements of the Borrower's business, and (C) on
terms (taken as a whole) substantially as favorable to the Borrower as would
be obtainable by the Borrower at the time in a comparable arm's-length
transaction with a Person other than an Affiliate and (d) any compensation
arrangement for officers of the Borrower if such arrangement has been approved
by the board of managers of the Borrower.
Section 6.9
Change in Payment Instructions to Account Debtors
The Borrower shall not add to, replace or terminate any of the Borrower
Accounts (or any related lock-box or post office box) or make any change in
its instructions to Intermediate SPV regarding payments to be made to the
Borrower Accounts (or any related lock-box or post office box) other than
instructing Account Debtors to make payments to a different Borrower Account
(or related lock-box or post office box), unless the Collateral Agent shall
have consented to such addition, replacement, termination or change (such
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consent not to be unreasonably withheld, delayed or conditioned) and shall
have received a signed and acknowledged Cash Management Control Agreement (or
amendment thereto) with respect to any such new Borrower Accounts (or any
related lock-box or post office box).
Section 6.10
Change in Business
The Borrower shall not (i) make any change in the character of its business or
(ii) make any change in any Credit and Collection Policy that would reasonably
be expected to have a Material Adverse Effect, in the case of either
clause (i)
or
(ii)
above, without the prior written consent of the Required Lenders (which
consent shall not be unreasonably withheld, conditioned or delayed). The
Borrower shall promptly notify the Administrative Agent of any other written
change in any Credit and Collection Policy within five Business Days of the
occurrence thereof.
SECTION VII EVENTS OF DEFAULT
Section 7.1
Events of Default
If any of the following events shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or (ii) the Borrower shall fail to pay
any interest on any Loan or the Borrower shall fail to pay any Lender Group
Expenses or other amount payable hereunder or under any other Loan Document,
within three Business Days after any such interest or other amount becomes due
in accordance with the terms hereof or thereof; or
(b) any representation or warranty made or deemed made by the Borrower,
Intermediate SPV, the Servicer or the Originators herein or in any other Loan
Document (other than any Purchase Agreement) or that is contained in any
certificate, document or financial or other statement required to be furnished
by the Borrower, Intermediate SPV, the Servicer or an Originator at any time
under this Agreement or any such other Loan Document shall prove to have been
inaccurate in any material respect on or as of the date made or deemed made or
furnished (
provided
that, in each case, such materiality qualifier shall not be applicable with
respect to any representation or warranty that is qualified or modified by
materiality or Material Adverse Effect); or
(c) the Borrower shall (i) fail to timely deliver a Borrowing Base
Certificate pursuant to
Section 5.1(c)
and such failure shall continue unremedied for a period of five Business Days
(or three Business Days if the Borrowing Base Certificate is required to be
delivered weekly pursuant to
Section 5.1(c)
) or (ii) default in the observance or performance of any agreement contained
in (A)
Section 2.21(a)
, (B)
Section 5.2
, (C)
Section 5.4(a)
, (D)
Section 5.7(a)
, (E)
Section 5.9
, (F)
Section 5.12(b)
and (G)
Section VI
; or
(d) (i) the Borrower, Intermediate SPV, the Servicer or an Originator shall
default in the observance or performance of any covenant or other agreement
contained in this Agreement or any other Loan Document (other than (x) as
provided in
paragraphs (a)
through
(c)
of this
Section 7.1
or
(y)
as contained in any Purchase Agreement), and such default shall continue
unremedied for a period of 30 days following delivery of written notice
thereof to the Borrower by the Administrative Agent, (ii) the occurrence of
any Purchase and Contribution Termination Event (as defined in the Purchase
Agreements), or (iii) the delivery of any termination notice under Section
1.4(b) of either Purchase Agreement; or
(e) the Borrower, Intermediate SPV, the Servicer or any Originator shall
(i) default in making any payment of any principal of any Indebtedness
(excluding the Loans and other Indebtedness under the
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Loan Documents) on the scheduled or original due date with respect thereto
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of grace,
if any, provided in the instrument or agreement under which such Indebtedness
was created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary)
to cause, with or without the giving of notice, but after the passage of any
applicable grace period, such Indebtedness to become due prior to its stated
maturity or to become subject to a mandatory offer to purchase by the obligor
thereunder (
provided
that no Event of Default shall occur under this
clause (iii)
as a result of (i) any notice of voluntary prepayment delivered by the
Borrower, Intermediate SPV, the Servicer or any Originator with respect to any
Indebtedness, (ii) any voluntary sale of assets by the Borrower, Intermediate
SPV, the Servicer or any Originator as a result of which any Indebtedness
secured by such assets is required to be prepaid or (iii) the exercise of any
contractual right to cause the prepayment of such Indebtedness (other than the
exercise of a remedy for an event of default under the applicable contract or
agreement) (and, for the avoidance of doubt, the aggregate principal amount of
such Indebtedness shall not be included in determining whether an Event of
Default has occurred under this
paragraph (e)
));
provided
that a default, event or condition described in
clause (i)
,
(ii)
or
(iii)
of this
paragraph (e)
shall not at any time constitute an Event of Default unless, at such time, one
or more defaults, events or conditions of the type described in
clause (i)
,
(ii)
or
(iii)
of this
paragraph (e)
shall have occurred and be continuing with respect to Indebtedness, the
outstanding principal amount of which would in the aggregate constitute
Material Debt;
provided
,
further
,
that upon becoming an Event of Default, such Event of Default shall be deemed
to have been remedied and shall no longer be continuing if any such defaults,
events or conditions are remedied or waived prior to any termination of the
Revolving Credit Commitments or acceleration of the Loans pursuant to the
below provisions of this
Section 7.1
by any of the holders or beneficiaries of such Indebtedness (or a trustee or
agent on behalf of such holders or beneficiaries) and, after giving effect
thereto, at such time, one or more defaults, events or conditions of the type
described in
clause (i)
,
(ii)
or
(iii)
of this
paragraph (e)
shall no longer be continuing with respect to any amount of Indebtedness that
would in the aggregate constitute Material Debt; or
(f) (i) the Borrower, Intermediate SPV, the Servicer or any Originator
shall commence any case, proceeding or other action (A) under any existing or
future Debtor Relief Laws, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or the
Borrower, Intermediate SPV, the Servicer or any Originator shall make a
general assignment for the benefit of its creditors; (ii) there shall be
commenced against or with respect to the Borrower, Intermediate SPV, the
Servicer or any Originator any case, proceeding or other action of a nature
referred to in
clause (i)
above that (A) results in the entry of an order for relief or for any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; (iii) there shall be commenced against the
Borrower, Intermediate SPV, the Servicer or any Originator any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief that
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; (iv) the Borrower, Intermediate SPV,
the Servicer or any Originator shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in
clause (i)
,
(ii)
or
(iii)
above; or (v) the Borrower, Intermediate SPV, the Servicer or any Originator
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
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(g) an ERISA Event occurs which has resulted or could reasonably be
expected to result in liability of the Borrower in an aggregate amount which
could reasonably be expected to result in a Material Adverse Effect; or
(h) one or more final judgments or decrees for the payment of money shall
be entered against the Borrower, Intermediate SPV, the Servicer or any
Originator involving, taken as a whole, a liability (to the extent not covered
by insurance as to which the relevant insurance company has not denied
coverage in writing) of (x) in the case of Intermediate SPV and the Borrower,
$100,000 and (y) in the case of the Servicer or any Originator, Material
Adverse Judgments, and all such judgments or decrees shall not have been
satisfied, vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or
(i) any Security Document that creates a Lien with respect to a material
portion of the Collateral shall cease, for any reason (other than by reason of
the release thereof pursuant to the provisions of the Loan Documents), to be
in full force and effect, or the Borrower (or any of its Affiliates that has
the power, directly or indirectly, to direct or cause the direction of the
management and policies of the Borrower) or the Servicer shall so assert in
writing, or any Lien with respect to any material portion of the Collateral
created by any of the Security Documents shall cease to be enforceable and of
the same effect and priority purported to be created thereby, except to the
extent that any such perfection or priority is not required pursuant to the
Collateral Requirement or results from the failure of the Collateral Agent to
maintain possession of certificates actually delivered to it representing
securities pledged under the Security Documents; or
(j) any Change of Control shall occur; or
(k) Intermediate SPV adds to, replaces or terminates any of the
Intermediate Accounts (or any related lock-box or post office box) or makes
any change in its instructions to the Originators or the Account Debtors
regarding payments to be made to the Intermediate Accounts (or any related
lock-box or post office box), unless the Administrative Agent shall have
consented to such addition, termination or change and shall have received
prior to same, (x) a written notice of such addition, termination or change
and (y) receipt of a signed and acknowledged Cash Management Control Agreement
(or amendment thereto) with respect to such new Intermediate Accounts (or any
related lock-box or post office box); or
(l) the Company, the Servicer, any of the Originators, Intermediate SPV or
any of their respective Subsidiaries gives or supports, whether directly or
indirectly, any instruction to the Account Debtors to make payments or
deposits with respect to any Pool Receivables into a bank account that is not
a Controlled Account; or
(m) either the Intermediate SPV or the Borrower becomes, or becomes
controlled by, an entity required to register as an "investment company" under
the Investment Company Act or 1940;
then, and in any such event, (A) if such event is an Event of Default
specified in
clauses (f)(i)
or
(f)(ii)
above with respect to the Borrower, the Revolving Credit Commitments hereunder
shall automatically and immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
(x)
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declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents to be due and
payable forthwith, whereupon the same shall immediately become due and
payable, (y) commence foreclosure actions with respect to the Collateral in
accordance with the terms and procedures set forth in the Security Documents
and (z) enforce all of the Borrower's rights under the Purchase Agreements and
other Loan Documents.
SECTION VIII THE AGENTS
Section 8.1
Appointment
Each Lender hereby irrevocably designates and appoints (i) Barclays as the
Administrative Agent, as Funding Agent and Collateral Agent, and (ii) Wells
Fargo, National Association, as Co-Collateral Agent, respectively of such
Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes such Agents, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent, the Collateral Agent, the Funding Agent and the
Co-Collateral Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, each Lender (and by
entering into an agreement with respect to Cash Management Obligations, each
Qualified Counterparty shall be deemed to authorize) hereby authorizes the
Collateral Agent to enter into each Security Document on behalf of and for the
benefit of the Lenders and the other Secured Parties and agrees to be bound by
the terms thereof. Each Lender hereby further authorizes the Collateral Agent
to act as the secured party under each of the Loan Documents that create a
Lien on any item of Collateral. Notwithstanding any provision to the contrary
elsewhere in this Agreement or in any other Loan Document notwithstanding,
neither Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, 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 each such Agent.
Without limiting the generality of the foregoing, the use of the term "agent"
in this Agreement or 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 is used merely as a matter of market custom, and is intended to create or
reflect only a representative relationship between independent contracting
parties. Except as expressly otherwise provided in this Agreement, each Agent
shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining
from taking any actions that such Agent expressly is entitled to take or
assert under or pursuant to this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, or of any other provision of
the Loan Documents that provides rights or powers to the Administrative Agent,
the Collateral Agent, the Funding Agent and the Co-Collateral Agent, the
Lenders agree that the Administrative Agent, the Collateral Agent, the Funding
Agent and the Co-Collateral Agent, as applicable, shall have the right to
exercise the following powers as long as this Agreement remains in effect: (a)
maintain, in accordance with its customary business practices, ledgers and
records reflecting the status of the Obligations, the Collateral, payments and
proceeds of Collateral, and related matters, (b) with respect to the
Administrative Agent and the Collateral Agent, execute or file any and all
financing or similar statements or notices, amendments, renewals, supplements,
documents, instruments, proofs of claim, notices and other written agreements
with respect to the Loan Documents, or to take any other action with respect
to any Collateral or Loan Documents which may be necessary to perfect, and
maintain perfected, the security interests and Liens upon Collateral pursuant
to the Loan Documents, (c) with respect to the Funding Agent, make Revolving
Credit Loans, for itself or on behalf of Lenders, as provided in the Loan
Documents, (d) with respect to the Funding Agent, exclusively
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receive, apply, and distribute payments as provided in the Loan Documents, (e)
with respect to the Collateral Agent, receive, apply and distribute proceeds
of the Collateral, (f) open and maintain such bank accounts and cash
management arrangements as the relevant Agent deems necessary and appropriate
in accordance with the Loan Documents for the foregoing purposes, (g) with
respect to the Collateral Agent, perform, exercise, and enforce any and all
other rights and remedies of the Secured Parties with respect to the Company
or its Subsidiaries, the Obligations, the Collateral, or otherwise related to
any of same as provided in the Loan Documents, and (h) incur and pay Lender
Group Expenses as any such Agent may deem necessary or appropriate for the
performance and fulfillment of its functions and powers pursuant to the Loan
Documents.
Section 8.2
Delegation of Duties
Each Agent may execute any of its duties under this Agreement and the other
Loan Documents by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. No Agent shall be responsible for the negligence or misconduct of any
agent or attorney-in-fact as long as such selection was made without gross
negligence or willful misconduct.
Section 8.3
Exculpatory Provisions
No Agent nor any of its respective Agent-Related Persons shall be (i) liable
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 to the extent that any of the foregoing are found
by a final and non-appealable decision of a court of competent jurisdiction to
have resulted from its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any other Credit Party (or
Qualified Counterparty) for any recitals, statements, representations or
warranties made by the Borrower or any officer or director thereof contained
in this Agreement or any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or received by
such Agent under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of the Borrower or other party thereto to perform its obligations hereunder or
thereunder or (iii) responsible for or have any duty to ascertain or inquire
into the creation, perfection or priority of any Lien purported to be created
by the Security Documents or the value or the sufficiency of any Collateral.
The Agent shall not be under any obligation to any other Credit Party 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 the Borrower. No
Agent-Related Person shall have any liability to any Credit Party or the
Borrower, or any of their respective Affiliates if any request for a Revolving
Credit Loan or other extension of credit was not authorized by the Borrower.
Each Agent shall not be required to take any action that, in its opinion or in
the opinion of its counsel, may expose it to liability or that is contrary to
any Loan Document or applicable law or regulation.
Section 8.4
Reliance by Agents
Each Agent shall be entitled to rely, and shall be fully protected in relying,
upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, facsimile or other electronic method of transmission, telex
or telephone message, statement, order 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 the Borrower), independent accountants and other
experts selected by such Agent. Each Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Any Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice
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or concurrence of the Required Lenders (or, if so specified by this Agreement,
all affected Lenders) as it deems appropriate and until such instructions are
received, such Agent shall act, or refrain from acting, as it deems advisable.
If any Agent so requests, it shall first be indemnified to its satisfaction by
the Lenders (and, if it so elects, by the Qualified Counterparties) against
any and all liability and expense that 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 Documents in accordance with a request or consent of the
Required Lenders (or, if so specified by this Agreement, all affected
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders (and Qualified Counterparties)
and all future holders of the Loans.
Section 8.5
Notice of Default or Event of Default
No Agent shall be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless such Agent has received written notice from
a Lender or the Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of default." In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent, the Collateral Agent and/or the Co-Collateral Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all affected Lenders);
provided
that, unless and until the Administrative Agent shall have received such
directions, the Administrative Agent, the Collateral Agent and/or the
Co-Collateral Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
Section 8.6
Non-Reliance on Agent and Other Lenders
Each Lender (and Qualified Counterparty) expressly acknowledges that none of
the Agent-Related Persons has made any representations or warranties to it and
that no act by any Agent hereafter taken, including any review of the affairs
of the Borrower or any Affiliate of the Borrower, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender (or Qualified Counterparty). Each Lender hereby (and by entering into
an agreement with respect to Cash Management Obligations, each Qualified
Counterparty) represents and warrants to each Agent that: (i) the Loan
Documents set forth the terms of a commercial lending facility, (ii) in
participating as a Lender, it is engaged in making, acquiring or holding
commercial loans and in providing other facilities set forth herein as may be
applicable to such Lender, in each case in the ordinary course of business,
and not for the purpose of investing in the general performance or operations
of the Borrower or any of its Affiliates, or for the purpose of purchasing,
acquiring or holding any other type of financial instrument such as a security
(and each Lender agrees not to assert a claim in contravention of the
foregoing, such as a claim under the federal or state securities laws), (iii)
it has, independently and without reliance upon any Agent-Related Person, any
Arranger, any other Lender, or any Related Parties of any of the foregoing,
and based on such due diligence, 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 Borrower and its Affiliates and made its own decision
to make, acquire or hold its Loans hereunder and enter into this Agreement,
and (iv) it is sophisticated with respect to decisions to make, acquire or
hold commercial loans and to provide other facilities set forth herein, as may
be applicable to such Lender, and either it, or the Person exercising
discretion in making its decision to make, acquire or hold such commercial
loans or to provide such other facilities, is experienced in making, acquiring
or holding such commercial loans or providing such other facilities. Each
Lender also represents (and by entering into an agreement with respect to Cash
Management Obligations, each Qualified Counterparty) that it will,
independently and without reliance upon any Agent-Related Person, any Arranger
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
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appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower
and its Affiliates. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by any Agent hereunder, no Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower or any
Affiliate of the Borrower that may come into the possession of such Agent or
its Agent-Related Persons. In performing its functions and duties hereunder
and under the other Loan Documents, each Agent is acting solely on behalf of
the Lenders (except in limited circumstances expressly provided for herein
relating to the maintenance of the Register, as it is related to the
Administrative Agent), and its duties are entirely mechanical and
administrative in nature. The motivations of the Agents are commercial in
nature and not to invest in the general performance or operations of the
Borrower or its Affiliates.
Section 8.7
Indemnification
The Lenders agree to indemnify each Agent and each other Agent-Related Persons
(each, an "
Agent Indemnitee
") (to the extent not reimbursed by the Borrower and without limiting any
obligation of the Borrower to do so), ratably according to their respective
Aggregate Exposure Percentages in effect on the date on which indemnification
is sought under this
Section 8.7
(or, if indemnification is sought after the date upon which the Revolving
Credit Commitments shall have terminated and the Loans shall have been paid in
full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs and
expenses or disbursements of any kind whatsoever that may at any time (whether
before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent Indemnitee in any way relating to or arising out
of, the Revolving Credit Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent Indemnitee under or in connection with any of the foregoing;
provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are found by a final and
non-appealable decision of a court of competent jurisdiction to have resulted
from such Agent Indemnitee's gross negligence, bad faith or willful
misconduct. The agreements in this
Section 8.7
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
Section 8.8
Each Agent in Its Individual Capacity
Each Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Borrower as though such Agent were not
an Agent hereunder, and, in each case, without notice to or consent of the
Lenders. The other Lenders acknowledge (and by entering into an agreement with
respect to Cash Management Obligations, each Qualified Counterparty shall be
deemed to acknowledge) that, pursuant to such activities, each Agent or its
Affiliates may receive information regarding the Borrower or its Affiliates or
any other Person party to any Loan Documents that is subject to confidentiality
obligations in favor of the Borrower or such other Person and that prohibit
the disclosure of such information to the Lenders (or Qualified Counterparties),
and the Lenders acknowledge (and by entering into an agreement with respect
to Cash Management Obligations, each Qualified Counterparty shall be deemed to
acknowledge) that, in such circumstances (and in the absence of a waiver of
such confidentiality obligations, which waiver the relevant Agent will use its
reasonable best efforts to obtain), no Agent shall not be under any obligation
to provide such information to them. With respect to its Loans made or renewed
by it, each Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise
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the same as though it were not an Agent hereunder, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
All payments to be made by the Funding Agent to the Lenders (or Qualified
Counterparties) shall be made by bank wire transfer of immediately available
funds pursuant to such wire transfer instructions as each party may designate
for itself by written notice to the Funding Agent. Concurrently with each such
payment, the Funding Agent shall identify whether such payment (or any portion
thereof) represents principal, premium, fees, or interest of the Obligations.
Section 8.9
Successor Agent
(a) Any Agent may resign as an Agent hereunder upon 30 days' notice to the
Lenders and the Borrower. If any Agent shall resign as Agent, then the
Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall be subject to written approval by the
Borrower (which approval shall not be unreasonably withheld or delayed if such
successor is a commercial bank with a combined capital and surplus of at least
$5.0 billion and otherwise may be withheld in the Borrower's sole discretion,
which approval shall not be required during the continuance of an Event of
Default), whereupon such successor agent shall succeed to the rights, powers
and duties of the retiring Agent, and the term "Administrative Agent",
"Collateral Agent", "Funding Agent" or "Co-Collateral Agent" shall mean such
successor agent, as applicable, effective upon such appointment and approval,
and the former Agent's rights, powers and duties as Administrative Agent,
Collateral Agent, Funding Agent or Co-Collateral Agent, as applicable shall be
terminated, without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement or any holders of the
Loans. If no successor agent has been appointed as Administrative Agent,
Collateral Agent, Funding Agent or Co-Collateral Agent, as applicable by the
date that is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective,
and the Lenders shall assume and perform all of the duties of such retiring
Agent hereunder until such time, if any, as the Required Lenders, subject to
written approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), appoint a successor agent as provided for above. After
any retiring Agent's resignation as Administrative Agent, Collateral Agent,
Funding Agent or Co-Collateral Agent, as applicable, the provisions of this
Section VIII
and of
Section 9.5
shall continue to inure to its benefit.
(b) If any Agent or a controlling Affiliate meets any part of the
definition of Lender Default (in its capacity as Lender or otherwise), it may
be removed by the Borrower or the Required Lenders. The Borrower shall appoint
from among the Lenders a successor agent for the Lenders, which successor
agent shall be subject to written approval by the Required Lenders (which
approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of such Agent,
and the term "Administrative Agent", "Collateral Agent", "Funding Agent" or
"Co-Collateral Agent" shall mean such successor agent, as applicable,
effective upon such appointment and approval, and the former Agent's rights,
powers and duties as Agent shall be terminated, without any other or further
act or deed on the part of such former Agent or any of the parties to this
Agreement or any holders of the Loans. If no successor agent has been
appointed as Administrative Agent, Collateral Agent, Funding Agent or
Co-Collateral Agent, as applicable by the date that is ten days following the
Agent's removal, the Agent's removal shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of such
Agent hereunder until such time, if any, as the Borrower, subject to written
approval by the Required Lenders (which approval shall not be unreasonably
withheld or delayed), appoints a successor agent as provided for above. After
any Agent's replacement as Administrative Agent, Collateral Agent, Funding
Agent or Co-Collateral Agent, as applicable, the provisions of this
Section VIII
and of
Section 9.5
shall continue to inure to its benefit.
Section 8.10
Erroneous Payment
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(a) Each Lender (and each Participant, by its acceptance of a participation)
hereby acknowledges and agrees that if the Funding Agent notifies such Lender
that the Funding Agent has determined in its sole discretion that any funds
(or any portion thereof) received by such Lender (any of the foregoing, a "
Payment Recipient
") from the Funding Agent (or any of its Affiliates) were erroneously
transmitted to, or otherwise erroneously or mistakenly received by, such
Payment Recipient (whether or not known to such Payment Recipient) (whether as
a payment, prepayment or repayment of principal, interest, fees or otherwise;
individually and collectively, a "
Payment
") and demands the return of such Payment, such Payment Recipient shall
promptly, but in no event later than two Business Days thereafter, return to
the Funding Agent the amount of any such Payment as to which such a demand was
made. A notice of the Funding Agent to any Payment Recipient under this
Section 8.10
shall be conclusive, absent manifest error.
(b) Without limitation of
clause (a)
above, each Payment Recipient further acknowledges and agrees that if such
Payment Recipient receives a Payment from the Funding Agent (or any of its
Affiliates) (x) that is in an amount, or on a date different from the amount
and/or date specified in a notice of payment sent by the Funding Agent (or any
of its Affiliates) with respect to such Payment (a "
Payment Notice
"), (y) that was not preceded or accompanied by a Payment Notice, or (z) that
such Payment Recipient otherwise becomes aware was transmitted, or received,
in error or by mistake (in whole or in part), in each case, it understands and
agrees at the time of receipt of such Payment that an error has been made (and
that it is deemed to have knowledge of such error) with respect to such
Payment. Each Payment Recipient agrees that, in each such case, it shall
promptly notify the Funding Agent of such occurrence and, upon demand from the
Funding Agent, it shall promptly, but in no event later than one Business Day
thereafter, return to the Funding Agent the amount of any such Payment (or
portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Payment Recipient under this
Section 8.10
shall be made in same-day funds in the currency so received, together with
interest thereon in respect of each day from and including the date such
Payment (or portion thereof) was received by such Payment Recipient to the
date such amount is repaid to the Funding Agent at the greater of the Federal
Funds Rate and a rate determined by the Funding Agent in accordance with
banking industry rules on interbank compensation from time to time in effect.
Each Payment Recipient hereby agrees that it shall not assert and, to the
fullest extent permitted by applicable law, hereby waives, any right to retain
such Payment, and any claim, counterclaim, defense or right of setoff or
recoupment or similar right to any demand by the Funding Agent for the return
of any Payment received, including without limitation any defense based on
"discharge for value" or any similar doctrine.
(d) The Borrower and each other Subsidiary hereby agrees that (x) in the
event an erroneous Payment (or portion thereof) is not recovered from any
Lender that has received such Payment (or portion thereof) for any reason, the
Funding Agent shall be subrogated to all the rights of such Lender with
respect to such amount and (y) an erroneous Payment shall not pay, prepay,
repay, discharge or otherwise satisfy any Obligations owed by the Borrower or
any other Subsidiary except, in each case, to the extent such erroneous
Payment is, and with respect to the amount of such erroneous Payment that is,
comprised of funds of the Borrower or any other Subsidiary; provided that this
Section 8.10
shall not be interpreted to increase (or accelerate the due date for), or have
the effect of increasing (or accelerating the due date for), the Obligations
of Borrower relative to the amount (and/or timing for payment) of the
Obligations that would have been payable had such Payment not been made by the
Funding Agent.
(e) Each party's obligations, agreements and waivers under this
Section 8.10
shall survive the resignation or replacement of the Funding Agent, any
transfer of rights or obligations by, or the replacement of, a Lender, the
termination of the Revolving Credit Commitments and/or the repayment,
satisfaction or discharge of all Obligations (or any portion thereof) under
any Loan Document.
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Section 8.11
Withholding Tax
To the extent required by any applicable Law, any Agent may withhold from any
payment to any Lender an amount equivalent to any applicable withholding Tax.
If the IRS or any other Governmental Authority asserts a claim that the Agent
did not properly withhold Tax from amounts paid to or for the account of any
Lender for any reason (including, without limitation, because the appropriate
form was not delivered or not properly executed, or because such Lender failed
to notify the Funding Agent of a change in circumstance that rendered the
exemption from, or reduction of withholding Tax ineffective), or if any Taxes
paid or payable by the Agent are attributable to a Lender's failure to comply
with the provisions of Section 9.4(c) relating to the maintenance of a
Participant Register, such Lender shall, within ten days after written demand
therefor, indemnify and hold harmless the Agent (to the extent that the Agent
has not already been reimbursed by the Borrower pursuant to
Section 2.16
and without limiting or expanding the obligation of the Borrower to do so)
from and against all amounts paid, directly or indirectly, by the Agent as
Taxes or otherwise, together with all expenses incurred, including legal
expenses and any other out-of-pocket expenses, whether or not such Tax was
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 Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Agent to setoff and apply any and all
amounts at any time owing to such Lender, under this Agreement or any other
Loan Document or from any other sources, against any amount due the Agent
under this
Section 8.11
. The agreements in this
Section 8.11
shall survive the resignation or replacement of any Agent or any assignment of
rights by, or the replacement of, a Lender, the termination of the Revolving
Credit Commitments and the repayment, satisfaction or discharge of all
obligations under any Loan Document. For purposes of this
Section 8.11
, the term "applicable Law" includes FATCA.
Section 8.12
Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person
became a Lender party hereto, to, and (y) covenants, from the date such Person
became a Lender party hereto to the date such Person ceases being a Lender
party hereto, for the benefit of, the Agents and not, for the avoidance of
doubt, to or for the benefit of the Borrower or any other Credit Party, that
at least one of the following is and will be true:
(i) such Lender is not using "plan assets" (within the meaning of Section
3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such
Lender's entrance into, participation in, administration of and performance of
the Loans, the Revolving Credit Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE
84-14 (a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE 95-60 (a class exemption for
certain transactions involving insurance company general accounts), PTE 90-1
(a class exemption for certain transactions involving insurance company pooled
separate accounts), PTE 91-38 (a class exemption for certain transactions
involving bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is applicable
with respect to such Lender's entrance into, participation in, administration
of and performance of the Loans, the Revolving Credit Commitments and this
Agreement,
(iii) (A) such Lender is an investment fund managed by a "Qualified
Professional Asset Manager" (within the meaning of Part VI of PTE 84-14), (B)
such Qualified Professional Asset Manager made the investment decision on
behalf of such Lender to enter into, participate in, administer and perform
the Loans, the Revolving Credit
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Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Revolving Credit
Commitments and this Agreement satisfies the requirements of sub-sections (b)
through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such
Lender, the requirements of subsection (a) of Part I of PTE 84-14 are
satisfied with respect to such Lender's entrance into, participation in,
administration of and performance of the Loans, the Revolving Credit
Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion, and such
Lender.
(b) In addition, unless either (1)
sub-clause (i)
in the immediately preceding
clause (a)
is true with respect to a Lender or (2) a Lender has provided another
representation, warranty and covenant in accordance with
sub-clause (iv)
in the immediately preceding
clause (a)
, such Lender further (x) represents and warrants, as of the date such Person
became a Lender party hereto, to, and (y) covenants, from the date such Person
became a Lender party hereto to the date such Person ceases being a Lender
party hereto, for the benefit of, any Agent and not, for the avoidance of
doubt, to or for the benefit of the Borrower or any other Credit Party, that
no Agent is a fiduciary with respect to the assets of such Lender involved in
such Lender's entrance into, participation in, administration of and
performance of the Loans, the Revolving Credit Commitments and this Agreement
(including in connection with the reservation or exercise of any rights by any
Agent under this Agreement, any Loan Document or any documents related hereto
or thereto).
SECTION IX MISCELLANEOUS
Section 9.1
Notices
(a)
Notices Generally
. Except as otherwise expressly provided, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier to the applicable party hereto, 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, to it at:
HE AR BRWR LLC
c/o Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
Attention: Paul K. Ito, Senior Vice President, Chief Financial Officer &
Treasurer
Email:
Paul.ito@hawaiianelectric.com
with copies (which shall not constitute notice) to:
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
(ii) if to the Administrative Agent, the Funding or the Collateral Agent, to
it at:
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Barclays Bank PLC
US Originations - Agency
745 7
th
Ave
New York, NY 10019
Attention: Arup Ghosh
Telephone: (201) 499-8490
Email:
arup.ghosh@barclays.com
and
bdmabl2@barclays.com
with copies (which shall not constitute notice) to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Jennifer Buczek Ezring
Telephone: 212-906-1633
Jennifer.Ezring@lw.com
(iii) if to the Co-Collateral Agent:
Wells Fargo Bank, National Association
1800 Century Park East, Suite 1300
Los Angeles, CA 90067
Attention: Carlos Valles
Telephone: 1-310-453-7450
Carlos.Valles@wellsfargo.com
(iv) if to any Lender, to it at its e-mail address, address (or facsimile
number) set forth in its Administrative Questionnaire.
Notices and other communications sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been given
when received; notices and other communications sent by telecopier shall be
deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the
opening of business on the next Business Day for the recipient). Notices and
other communications delivered through electronic communications to the extent
provided in
paragraph (b)
below (such notices and communications, made "
Electronically
") shall be effective as provided therein.
(b)
Electronic Communications
. Notices and other communications to the Lenders hereunder may be delivered
or furnished by electronic communication (including e-mail, FpML and Internet
or intranet websites) pursuant to procedures approved by the Administrative
Agent or the Funding Agent, as applicable;
provided
that the foregoing shall not apply to notices to any Lender pursuant to
Section II
if such Lender, as applicable, has notified the Administrative Agent or the
Funding Agent, as applicable, that it is incapable of receiving, or is
unwilling to receive, notices under
Section II
by electronic communication. The Administrative Agent, the Funding Agent or
the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it;
provided
that approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent or the Funding Agent, as applicable otherwise
prescribes, (i) notices and other communications sent to an e-mail address
shall be deemed received upon the sender's receipt of an acknowledgement from
the intended recipient (such as by the "return receipt requested"
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function, as available, return e-mail or other written acknowledgement); and
(ii) notices or communications posted to an Internet or intranet website shall
be deemed received upon the deemed receipt by the intended recipient, at its
e-mail address as described in
clause (i)
above, of notification that such notice or communication is available and
identifying the website address therefor;
provided
that, in the case of
clauses (i)
and
(ii)
above, if such notice, email or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next Business Day
for the recipient.
(c)
Change of Address, etc
. The Borrower and any Agent may change its address, telecopier number,
telephone number or electronic mail address for notices and other
communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier number, telephone number or
electronic mail address for notices and other communications hereunder by
notice to the Borrower and each Agent. In addition, each Lender agrees to
notify the Administrative Agent and the Funding Agent from time to time to
ensure that such Agents have on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire transfer
instructions for such Lender.
(d)
Platform
. The Borrower hereby acknowledges that the Agents will make available to the
Lenders materials and/or information provided by or on behalf of the Borrower
(collectively, the "
Borrower Materials
") hereunder by posting such materials the Platform.
THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT-RELATED PERSONS
DO NOT WARRANT THE ACCURACY OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT-RELATED PERSON IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM. In no event shall any Agent-Related Person have any
liability to the Borrower, any Lender, or any other Person or entity for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower's or an Agent's
transmission of Borrower Materials through the Platform, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by an final and non-appealable judgment to
have resulted from the gross negligence or willful misconduct of such
Agent-Related Person;
provided
that in no event shall any Agent-Related Person have any liability to the
Borrower, any Lender or any other Person for indirect, special, incidental,
consequential damages or punitive damages (as opposed to direct or actual
damages). The Borrower acknowledges and agrees that the list of Disqualified
Lenders shall be deemed suitable for posting and may be posted by any Agent on
the Platform, including the portion of the Platform that is designated for
"public side" Lenders.
(e)
Reliance by the Agents and Lenders
. The Agents and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Borrowing Requests and other telephonic 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 confirmation
thereof. The Borrower shall indemnify the Agents, each Lender and the Related
Parties of each of them for all losses, costs, expenses and liabilities
resulting from the reliance of such Person on each notice purportedly given by
or on behalf of the Borrower. All telephonic notices to and telephonic
communications with an Agent may be recorded by such Agent, and each of the
parties hereby consents to such recording.
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Section 9.2
Waivers; Amendments
(a) No failure or delay by an Agent or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Agents and the Lenders hereunder are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by
paragraph (b)
of this
Section 9.2
, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan shall not be construed as a waiver of
any Default, regardless of whether any Agent or any Lender may have had notice
or knowledge of such Default at the time.
(b) None of this Agreement, any other Loan Document or any provision
hereunder or thereunder may be waived, amended or modified except pursuant to
an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Administrative Agent with the
consent of the Required Lenders;
provided
that, notwithstanding the foregoing:
(i) solely with the written consent of each Lender directly and adversely
affected thereby (but without the necessity of obtaining the consent of the
Required Lenders, other than in the case of
clause (1)
below, which shall require the consent of each Lender increasing its Revolving
Credit Commitments if such increase is effectuated
other than
pursuant to the provisions under this Agreement specifically permitting
increases of commitments without the further approval of Required Lenders
(including in connection with a Reallocation pursuant to
Section 2.12
hereof)), any such agreement may:
(1) increase the Revolving Credit Commitment of any Lender, it being
understood that (y) a waiver of any condition precedent set forth in
Section 4.3
, or (z) the waiver of any Default, Event of Default, mandatory prepayment or
mandatory reduction of Revolving Credit Commitments shall not constitute an
increase of any Revolving Credit Commitments of any Lender;
(2) reduce or forgive (or have the effect of reducing or forgiving) the
principal amount of any Loan or reduce the rate of interest thereon, or reduce
any fees or premiums payable hereunder (except in connection with the waiver
of applicability of any post-Default increase in interest rates (which waiver
shall be effective with the consent of the Required Lenders), it being
understood that (y) the waiver of any Default, Event of Default or mandatory
prepayment shall not constitute a reduction or forgiveness of principal, and
(z) any change in Historical Excess Availability, Historical Average
Utilization or any other definition used in the calculation of such rate of
interest or fees (or any component definition thereof) shall not constitute a
reduction in any rate of interest or any fee for purposes of this
clause (2)
);
(3) postpone (or have the effect of postponing) the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees or premiums payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Revolving Credit Commitment; it being understood that a waiver of any
condition precedent set forth in
Section 4.3
or the waiver of any Default or mandatory prepayment shall not constitute a
postponement of the
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scheduled date of payment of principal of any Loan or expiration of any
Revolving Credit Commitment of any Lender;
(4) change
Section 2.3(b)(i)
,
(ii)
or
(iii)
or
Section 2.21(c)
in a manner that would alter the
pro rata
sharing of payments required thereby, or change the application of proceeds
provision in Section 6.4 of the Borrower Collateral Agreement; or
(5) (x) contractually subordinate the Obligations hereunder to any other
Indebtedness or other obligations or (y) contractually subordinate the Liens
securing the Obligations to Liens securing any other Indebtedness or other
obligations;
(ii) solely with the written consent of the Supermajority Required Lenders
of the respective Class, any such agreement may amend Section 2.1(a)(i) or
(ii), as applicable, or increase advance rates or make other modifications to
the applicable Borrowing Base (or any constituent definitions to the extent
used therein) that have the effect of increasing availability thereunder
(including changes in eligibility criteria), it being understood that
increases or decreases in Reserves implemented by the Collateral Agent and the
Co-Collateral Agent in their Permitted Discretion shall require only the
consent of the Collateral Agent and the Co-Collateral Agent;
(iii) solely with the written consent of each Lender (other than a
Defaulting Lender), any such agreement may:
(1) change any of the provisions of this
Section 9.2
or the definition of "Required Lenders", "Supermajority Required Lenders", or
any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or grant any consent
hereunder;
(2) except as otherwise expressly provided in
Section 9.14
or in the Borrower Collateral Agreement, release a portion of the Collateral
with a fair market value equal to or in excess of $1,000,000; or
(iv) except as otherwise expressly permitted, consent to the assignment of
the Borrower's Obligations under this Agreement.
(c) Notwithstanding anything in this Agreement or any other Loan Document
to the contrary, only the consent of the parties to the Administrative Agent
Fee Letter or the Co-Collateral Agent Fee Letter, as applicable, shall be
required to amend, modify or supplement their respective terms.
(d) Notwithstanding anything in this Agreement or any other Loan Document
to the contrary, the Borrower may enter into Extension Amendments in
accordance with
Section 2.22
and joinder agreements with respect thereto in accordance with such sections,
and such Extension Amendments and joinder agreements may effect such
amendments to the Loan Documents as may be necessary or appropriate, in the
opinion of the Administrative Agent and the Borrower, to give effect to the
existence and the terms of the Extension, as applicable, and will be effective
to amend the terms of this Agreement and the other applicable Loan Documents
(including to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other applicable Loan
Documents with the other Revolving Credit Loans, and the accrued interest and
fees in respect thereof and to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders), in each case,
without any further action or consent of any other party to any Loan Document.
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(e) Notwithstanding anything to the contrary contained in this
Section 9.2
or any other Loan Document, guarantees, collateral security documents and
related documents executed in connection with this Agreement may be in a form
reasonably determined by the Collateral Agent and may be, together with this
Agreement, amended and waived with the consent of the Collateral Agent at the
request of the Borrower without the need to obtain the consent of any other
Agent or Lender if such amendment or waiver is delivered in order (i) to
comply with local requirements of Law or advice of local counsel, (ii) to cure
ambiguities, omissions, mistakes, errors, defects or inconsistencies or (iii)
to cause such guarantee, collateral security document or other document to be
consistent with this Agreement or any other Loan Documents. In addition, if
the Administrative Agent and the Borrower shall have jointly identified an
obvious error or any error or omission of a technical nature in this Agreement
or any other Loan Document, then the Administrative Agent and the Borrower
shall be permitted to amend such provision without further action or consent
by any other party;
provided
that the Required Lenders shall not have objected to such amendment within
five Business Days after receiving a copy thereof.
(f) Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires
the consent of all Lenders or each affected Lender may be effected with the
consent of the applicable Lenders other than Defaulting Lenders), except that
(1) the Revolving Credit Commitment of any Defaulting Lender may not be
increased or extended without the consent of such Defaulting Lender and (2)
any waiver, amendment or modification requiring the consent of all Lenders or
each directly and adversely affected Lender that by its terms materially and
adversely affects any Defaulting Lender to a greater extent than other
affected Lenders shall require the consent of such Defaulting Lender;
provided
,
that (i) no amendment, waiver or consent shall, unless in writing and signed
by the affected Agent in addition to the Lenders required above, directly and
adversely affect the rights or duties of, or any fees or other amounts payable
to, such Agent under this Agreement or any other Loan Document; and (ii) no
Lender consent is required to effect an Extension Amendment (except as
expressly provided in
Section 2.22
or in the following clause), and in connection with an Extension Amendment,
only the consent of the Lenders that will continue as a Lender in respect of
the Extended Revolving Credit Commitments, as applicable, subject to such
Extension Amendment shall be required for such Extension Amendment.
Section 9.3
Expenses; Indemnity; Damage Waiver
(a) The Borrower shall pay (i) all reasonable and documented out-of-pocket
Lender Group Expenses incurred by the Agents and their Affiliates, including
the reasonable and documented fees, disbursements and other charges of legal
counsel for the Agents in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions
hereof, the reasonable fees and expenses of consultants and appraisal firms in
connection with field examinations required hereunder and the Agents' standard
charges for examination activities and appraisal reviews, and (ii) all
out-of-pocket expenses incurred by the Agents or any Lender, including the
fees, charges and disbursements of legal counsel for the Agents or any Lender,
in connection with the enforcement or protection of its rights in connection
with this Agreement, including its rights under this
Section 9.3(a)
, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans;
provided
that the Borrower's obligations under this
Section 9.3(a)
for fees and expenses of legal counsel shall be limited to fees and expenses
of (x) one primary outside legal counsel in each of the United States for all
Persons described in
clauses (i)
and
(ii)
above, taken as a whole, (y) in the case of any actual or perceived conflict
of interest, one outside legal counsel for each group of affected Persons
similarly situated, taken as a whole, in each appropriate jurisdiction and (z)
if necessary, one local or foreign legal counsel in each appropriate
jurisdiction (which may include a single special counsel acting in multiple
jurisdictions).
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(b) The Borrower shall indemnify each Agent and each other Agent-Related
Party (each such Person being called an "
Indemnitee
") against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities, costs and related expenses (including the
reasonable out-of-pocket fees, charges and disbursements of (i) one primary
outside legal counsel to the Indemnitees, taken as a whole, (ii) in the case
of any actual or perceived conflict of interest, one additional outside legal
counsel in each of the United States for each group of affected Indemnitees
similarly situated, taken as a whole, in each appropriate jurisdiction and
(iii) if necessary, one local or foreign legal counsel in each appropriate
jurisdiction (which may include a single special counsel acting in multiple
jurisdictions)), which may at any time be imposed on, incurred by or asserted
or awarded against any such Indemnitee arising out of, in connection with, or
as a result of (w) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or any other transactions
contemplated hereby, (x) any Loan or the use of the proceeds therefrom, (y)
any actual or alleged presence or Release of Hazardous Materials on or from
any property owned or operated by the Borrower (including any predecessor
entities), or any Environmental Liability relating to the Borrower (including
any predecessor entities) or (z) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto and whether or not such claim, litigation, investigation or
proceeding is brought by the Borrower or any of its respective Affiliates,
their respective creditors or any other Person;
provided
that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses (1)
are determined by a court of competent jurisdiction by final and non-appealable
judgment to have resulted from the gross negligence, bad faith or willful
misconduct of such Indemnitee or its Related Parties, (2) arise out of any
claim, litigation, investigation or proceeding that does not involve an act or
omission by the Borrower and that is brought by an Indemnitee against any
other Indemnitee (
provided
that in the event of such a claim, litigation, investigation or proceeding
involving a claim or proceeding brought against any Agent (in its capacity as
such) by other Indemnitees, such Agent, as the case may be (in its capacity as
such), shall be entitled (subject to the other limitations and exceptions set
forth above) to the benefit of the indemnities set forth above), (3) arise
from any settlement entered into by any Indemnitee or any of its Related
Parties in connection with the foregoing without the Borrower's prior written
consent (such consent not to be unreasonably withheld or delayed) or (4) are
in respect of indemnification payments made pursuant to
Section 8.7
, to the extent the Borrower would not have been or was not required to make
such indemnification payments directly pursuant to the provisions of this
Section 9.3(b)
. This
Section 9.3(b)
shall not apply with respect to Taxes other than any Taxes that represent
losses, claims, damages, etc., arising from any non-Tax claim.
(c) To the extent permitted by applicable law, none of the Borrower or any
Indemnitee shall assert, and each of the Borrower and each Indemnitee hereby
waives, any claim against the Borrower or its Related Parties or any
Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) (whether or not
the claim therefor is based on contract, tort or duty imposed by any
applicable legal requirement) arising out of, in connection with, as a result
of, or in any way related to, this Agreement or any agreement or instrument
contemplated hereby, any Loan or the use of the proceeds thereof or any act or
omission or event occurring in connection therewith, and, to the extent
permitted by applicable law, the Borrower and each Indemnitee hereby waive,
release and agree not to sue upon any such claim or any such damages, whether
or not accrued and whether or not known or suspected to exist in its favor;
provided
that nothing contained in this paragraph shall limit the obligations of the
Borrower under
Section 9.3(b)
in respect of any such damages claimed against the Indemnitees by Persons
other than Indemnitees. No Indemnitee referred to in
Section 9.3(b)
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed by it through telecommunicatio
ns, electronic or other information transmission systems in connection with
this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.
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(d) All amounts due under this
Section 9.3
shall be payable not later than 30 days after written demand therefor.
(e) Notwithstanding the foregoing, each Indemnitee shall be obligated to
refund and return any and all amounts paid by the Borrower to such Indemnitee
for fees, expenses or damages to the extent such Indemnitee is not entitled to
payment of such amounts in accordance with the terms hereof, as determined by
a final, non-appealable judgment of a court of competent jurisdiction.
Section 9.4
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 (i) no Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by a Borrower without
such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance
with this
Section 9.4
. 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
paragraph (c)
of this
Section 9.4
) and, to the extent expressly contemplated hereby, the Related Parties of the
Administrative Agent and the Lenders) 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)
of this
Section 9.4
, any Lender may assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Revolving Credit Commitment and the Loans at the time owing to it) with
the prior written consent (each such consent not to be unreasonably withheld,
delayed or conditioned) of:
(A) the Borrower;
provided
that no consent of the Borrower shall be required for an assignment to a
Lender, an Affiliate or branch of a Lender or an Approved Fund or, if an Event
of Default under
Section 7.1(a)
or
(f)
has occurred and is continuing, any other Eligible Assignee;
provided
,
further
,
that (x) the Borrower shall be deemed to have consented to any such assignment
unless the Borrower shall have objected thereto by written notice to the
Administrative Agent not later than the tenth Business Day following the date
a written request for such consent is made and (y) the withholding of consent
by the Borrower to any assignment to any Disqualified Lender shall be deemed
reasonable (for the avoidance of doubt, it being understood and agreed that
the Administrative Agent shall not have any responsibility or obligations to
determine or notify the Borrower with respect to whether any Lender or
potential Lender is a Disqualified Lender, and the Administrative Agent shall
have no liability with respect to any assignment made to a Disqualified
Lender); and
(B) the Administrative Agent;
provided
that, with respect to foregoing
clause (B)
, no consent of the Administrative Agent shall be required with respect to an
assignment to any Person that satisfies
clause (i)
of the definition of Eligible Assignee;
provided
,
further
, any assignment made to a Disqualified Lender shall not be null and void but
shall instead be subject to
Section 9.4(e)
.
(ii) Assignments shall be subject to the following additional conditions:
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(A) except in the case of an assignment of the entire remaining amount of
the assigning Lender's Revolving Credit Commitment or Loans or assignments to
a Lender or an Affiliate or branch of a Lender, the amount of the Revolving
Credit 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 $5,000,000 unless (x) such assignee shall be an existing Lender
or (y) each of the Borrower and the Administrative Agent otherwise consent;
provided
that no such consent of the Borrower shall be required if an Event of Default
under
Section 7.1(a)
or
(f)
has occurred and is continuing;
(B) each assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent and the Funding Agent an Assignment and Assumption,
together with (unless waived by the Funding Agent in its sole discretion) a
processing and recordation fee of $3,500 to the Funding Agent (treating, for
purposes of such fee, multiple, simultaneous assignments by or to two or more
Approved Funds as a single assignment); and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent and the Funding Agent an Administrative Questionnaire in
which the assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information
about the Borrower, the Company and their Subsidiaries and their related
parties or their respective securities) will be made available and who may
receive such information in accordance with the assignee's compliance
procedures and applicable laws, including federal and state securities laws.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv)
of this
Section 9.4
, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the benefits, and
subject to the obligations, of
Sections 2.14
,
2.15
,
2.16
and
9.3
). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this
Section 9.4
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
paragraph (c)
of this
Section 9.4
.
(iv) The Administrative Agent, acting solely for this purpose as a
non-fiduciary agent of the Borrower, shall maintain a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Revolving Credit Commitment of, and
principal amount (and related interest) of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "
Register
"). The entries in the Register shall be conclusive absent manifest error, and
the Borrower, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower
and any Lender (with respect to its own Revolving Credit Commitments and Loans
only), at any reasonable time and from time to time upon
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reasonable prior notice. No assignment will be effective unless and until the
Assignment and Assumption is registered in such Register. This
Section 9.4
is intended so that the Loans are at all times maintained in "registered form"
within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and
any related US Treasury Regulations (or any other relevant or successor
provisions of the Code or of such US Treasury Regulations).
(v) Upon its receipt of a duly completed Assignment and Assumption executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless such assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in
paragraph (b)
of this
Section 9.4
and any written consent to such assignment required by
paragraph (b)
of this
Section 9.4
, the Administrative Agent shall accept such Assignment and Assumption and
record the information contained therein in the Register;
provided
that if either the assigning Lender or the assignee shall have failed to make
any payment required to be made by it pursuant to
Sections 2.2(b)
,
(c)
,
(d)
or
8.7
, the Administrative Agent shall have no obligation to accept such Assignment
and Assumption and record the information therein in the Register unless and
until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(vi) In connection with any assignment of rights and obligations of any
Defaulting Lender hereunder, no such assignment shall be effective unless and
until, in addition to the other conditions thereto set forth herein, the
parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the
assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable ratable share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and
satisfy in full all payment liabilities then owed by such Defaulting Lender to
the Administrative Agent and each other Lender hereunder (and interest accrued
thereon), and (y) acquire (and fund as appropriate) its full ratable share of
all Loans in accordance with its Pro Rata Share of the Total Revolving Credit
Commitments;
provided
that, notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall become
effective under applicable Law without compliance with the provisions of this
paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance
occurs.
(c)
(i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities other than an Excluded Participant (a "
Participant
") in all or a portion of such Lender's rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and
the Loans owing to it);
provided
that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower,
the Administrative Agent and the 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 to approve any amendment,
modification or waiver of any provision of this Agreement;
provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification
or waiver described in
Section 9.2(b)(iii)
that
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adversely affects the Participant;
provided
,
however
, in no event shall an Excluded Participant be a Participant. The Borrower
agrees that, subject to
paragraph (c)(ii)
and
(c)(iii)
of this
Section 9.4
, each Participant shall be entitled to the benefits of
Sections 2.14
,
2.15
and
2.16
and subject to the requirements and limitations of such Sections including the
requirements under
Section 2.16(e)
(it being understood that the documentation required under
Section 2.16(e)
shall be delivered by the Participant solely to the participating Lender) to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to
Section 9.4(b)
. To the extent permitted by law, each Participant also shall be entitled to
the benefits of
Section 9.8
as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as a non-fiduciary agent of the Borrower,
maintain a register on which it enters the name and address of each
Participant and the principal amounts (and related interest) of each
Participant's interest in the Loans or other obligations under this Agreement
or any other Loan Document (the "
Participant Register
");
provided
that no Lender shall have any obligation to disclose all or any portion of the
Participant Register to any Person (including the identity of any Participant
or any information relating to a Participant's interest in any Revolving
Credit Commitments, Loans or its other obligations under any Loan Document)
except to the extent that such disclosure is necessary to establish that such
Revolving Credit Commitment, Loan or other obligation is in registered form
under Section 5f.103-1(c) or Proposed Section 1.163-5(b) of the US Treasury
Regulations (or, in each case, any amended, successor or final version). The
entries in the Participant Register shall be conclusive absent manifest error,
and such Lender shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of
this Agreement, including payments of interest and principal, notwithstanding
any notice to the contrary. For the avoidance of doubt, the Administrative
Agent (in its capacity as Administrative Agent) shall have no responsibility
for maintaining a Participant Register.
(ii) A Participant shall not be entitled to receive any greater payment under
Section 2.10(d)
,
2.11
or
2.16
, with respect to any participation sold to such Participant, than its
participating Lender would have been entitled to receive with respect to such
participation, except to the extent such entitlement to receive a greater
payment results from a Change in Law that occurs after the Participant
acquired the participation.
(iii) A Participant shall be subject to the provisions of
Section 2.11(b)
as if it were an assignee under
paragraph (b)
of this
Section 9.4
.
(iv) Each Lender that sells a participation agrees, at the Borrower's
request and expense, to use reasonable efforts to cooperate with the Borrower
to effectuate the provisions of
Section 2.10(b)
with respect to any Participant.
(v) No participation may be sold to the Borrower, any Affiliate of the
Borrower or any of their respective Subsidiaries.
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this
Section 9.4
shall not apply to any such pledge or assignment of a security interest;
provided
that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein:
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(i) no assignment or participation shall be made to any Person that was a
Disqualified Lender as of the date on which the assigning Lender entered into
a binding agreement to sell and assign all or a portion of its rights and
obligations under this Agreement to such Person (unless the Borrower has
consented to such assignment in writing in its sole and absolute discretion,
in which case such Person will not be considered a Disqualified Lender for the
purpose of such assignment or participation). Any assignment in violation of
this
Section 9.4(e)(i)
shall not be void, but the other provisions of this
Section 9.4(e)
shall apply.
(ii) if any assignment or participation is made to any Disqualified Lender
without the Borrower's prior written consent in violation of
clause (i)
above, the Borrower may, upon notice to the applicable Disqualified Lender and
the Administrative Agent, (A) terminate any Revolving Credit Commitment of
such Disqualified Lender and repay all obligations of the Borrower owing to
such Disqualified Lender in connection with such Revolving Credit Commitment,
and/or (B) require such Disqualified Lender to assign (and the signature of
such Disqualified Lender shall not be required on any such assignment),
without recourse (in accordance with and subject to the restrictions contained
in this
Section 9.4
), all of its interest, rights and obligations under this Agreement to one or
more Eligible Assignees at the lesser of (x) the principal amount thereof and
(y) the amount that such Disqualified Lender paid to acquire such interest,
rights and obligations, in each case, plus accrued interest, accrued fees and
all other amounts (other than principal amounts) payable to it hereunder (it
being understood and agreed that the Borrower shall not have any obligation to
such Disqualified Lender or any other Person to find such a replacement Lender
or accept or consent to any such assignment to itself or any other Person
subject to the Borrower's consent in accordance with
Section 9.4
).
(iii) Disqualified Lenders (A) will not (x) have the right to request any
information, reports or other materials or receive information, reports or
other materials provided to Lenders by the Borrower, the Administrative Agent
or any other Lender, (y) attend or participate in meetings or inspections
attended by the Lenders and the Administrative Agent or request such meetings
or inspections, or (z) access any electronic site established for the Lenders
or confidential communications from counsel to or financial advisers of the
Administrative Agent or the Lenders and (B) (x) shall not have any voting or
approval rights under the Loan Documents and shall be excluded in determining
whether all Lenders, all affected Lenders, or the Required Lenders have taken
or may take any action hereunder (including any consent to any amendment or
waiver pursuant to
Section 9.2
);
provided
that (I) the Revolving Credit Commitment of any Disqualified Lender may not be
increased or extended without the consent of such Lender and (II) any waiver,
amendment or modification requiring the consent of all Lenders or each
affected Lender that affects any Disqualified Lender adversely and in a manner
that is disproportionate to other affected Lenders shall require the consent
of such Disqualified Lender, and (y) for purposes of voting on any bankruptcy
plan, each Disqualified Lender party hereto hereby agrees (1) not to vote on
such bankruptcy plan, (2) if such Disqualified Lender does vote on such
bankruptcy plan notwithstanding the restriction in the foregoing
clause (1)
, such vote will be deemed not to be in good faith and shall be "designated"
pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision
in any other Debtor Relief Laws), and such vote shall not be counted in
determining whether the applicable class has accepted or rejected such
bankruptcy plan in accordance with Section 1126(e) of the Bankruptcy Code (or
any similar provision in any other Debtor Relief Laws) and (3) not to contest
any request by any party for a determination by the bankruptcy court (or other
applicable court of competent jurisdiction) effectuating the foregoing
clause (2)
.
(iv) the Administrative Agent shall not be responsible or have any
liability for, or have any duty to ascertain, inquire into, monitor or enforce
compliance with the provisions hereof
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relating to Disqualified Lenders. Without limiting the generality of the
foregoing, the Administrative Agent shall not (x) be obligated to ascertain,
monitor or inquire as to whether any Lender or Participant or prospective
Lender or Participant is a Disqualified Lender or (y) have any liability with
respect to or arising out of any assignment or participation of Loans, or
disclosure of confidential information, to any Disqualified Lender.
(f) Any Credit Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.4
, disclose to the assignee or participant or proposed assignee or participant
any information relating to the Borrower furnished to such Credit Party by or
on behalf of the Borrower;
provided
,
however
, that, prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree in writing to preserve the confidentiality
of any confidential Information received by it from such Credit Party in
accordance with
Section 9.12
to the same extent as if it were a Credit Party.
Section 9.5
Survival
All covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery
of this Agreement and the making of any Loans, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Agent or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid is outstanding
and so long as the Revolving Credit Commitments have not expired or
terminated. The provisions of
Sections 2.14
,
2.15
,
2.16
and
9.3
and
Section VIII
shall survive and remain in full force and effect regardless of the
resignation or replacement of any Agent or any assignment of rights by, or the
replacement of, a Lender, the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Revolving Credit Commitments or the termination of this Agreement or any
provision hereof.
Section 9.6
Counterparts; Integration; Effectiveness
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Agents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in
Section 4.1
, this Agreement shall become effective when it shall have been executed by
the Agents and when the Administrative Agent shall have received counterparts
hereof which, when taken together, bear the signatures of each of the other
parties hereto, and thereafter shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Delivery of
an executed counterpart of a signature page of this Agreement by facsimile or
other electronic transmission (
e.g.
, "PDF" or "TIFF") shall be effective as delivery of a manually executed
counterpart of this Agreement.
The words "execution," "signed," "signature," and words of like import in any
Assignment and Assumption or in any amendment or other modification hereof
(including waivers and consents) shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may
be, to the extent and as provided for in any applicable
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Law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state Laws based on the Uniform Electronic Transactions Act.
Section 9.7
Severability
Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof;
and the invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction.
Section 9.8
Right of Setoff
If an Event of Default shall have occurred and be continuing, each Lender is
hereby authorized at any time and from time to time with the prior written
consent of the Administrative Agent (which consent shall not be required in
connection with customary setoffs in connection with Cash Management
Obligations), to the fullest extent permitted by law, to setoff and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other obligations at any time owing by such Lender to or for
the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this
Section 9.8
are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have. Each Lender shall notify the Administrative
Agent, the Funding Agent and the Borrower promptly after any such setoff.
Notwithstanding anything to the contrary in the foregoing, no Lender shall
exercise any right of setoff in respect of any Controlled Account other than
the Administrative Agent acting in their capacity as such.
Section 9.9
Governing Law; Jurisdiction; Consent to Service of Process
(a) This Agreement 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 and the transactions contemplated hereby shall be
construed in accordance with and governed by the law of the State of New York.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or any other Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding shall be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Notwithstanding the foregoing, any
party hereto may bring an action or proceeding in other jurisdictions in
respect of its rights under any Security Document governed by a law other than
the laws of the State of New York or, with respect to the Collateral, in a
jurisdiction where such Collateral is located.
(c) Each party to this Agreement hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
other
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Loan Document in any court referred to in
paragraph (b)
of this
Section 9.9
. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in
Section 9.1
. Nothing in this Agreement or any other Loan Document will affect the right
of any party to this Agreement to serve process in any other manner permitted
by law.
Section 9.10
WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.10
.
Section 9.11
Headings
Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
Section 9.12
Confidentiality
(a) Each Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below) and not to use Information in violation of
Law, except that Information may be disclosed (i) to its and its Affiliates'
employees, legal counsel, independent auditors, professionals and other
experts or agents (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), (ii) to the
extent requested or demanded by any regulatory authority claiming jurisdiction
over it or its Affiliates (
provided
that such Agent or Lender, as applicable, shall, except with respect to any
audit or examination conducted by bank accountants or any governmental bank
regulatory authority exercising examination or regulatory authority, promptly
notify the Borrower, in advance, to the extent lawfully permitted to do so),
(iii) pursuant to the order of any court or administrative agency or in any
pending legal, judicial or administrative proceeding, or otherwise as required
by applicable law or compulsory legal process based on the advice of counsel (
provided
that such Agent or Lender as applicable, shall notify the Borrower promptly
thereof prior to any such disclosure by such Person (except with respect to
any audit or examination conducted by bank accountants or any governmental
bank regulatory authority exercising examination or regulatory authority) to
the extent practicable and not prohibited by applicable law, rule or
regulation), (iv) to any other party to this Agreement, (v) as reasonably
determined to be necessary, in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (vi) to
bona fide
or potential assignee, transferee or participant in connection with the
contemplated assignment, transfer or participation of any Loans or any
participations therein or by any direct or indirect contractual counterparties
(or the professional advisors thereto) to any swap or derivative transaction
relating to the Borrower and their obligations (
provided
that
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such assignees, transferees, participants, counterparties and advisors are
advised of and agree to be bound by either the provisions of this
Section 9.12
or other provisions at least as restrictive as this
Section 9.12
), (vii) to the extent that such information is independently developed by it,
(viii) with the prior written consent of the Borrower, (ix) to the extent such
Information (A) becomes available other than as a result of a breach of this
Section 9.12
to any Agent or any Lender on a nonconfidential basis from a source other than
the Borrower or any of its Affiliates or (B) to the extent that such
information becomes publicly available other than by reason of improper
disclosure by any Agent or any Lender or any of their Affiliates or any
related parties thereto in violation of any confidentiality obligations owing
to the Borrower or any of its affiliates, (x) on a confidential basis to (A)
market data collectors, similar services, providers to the lending industry
and service providers to the Agents in connection with the administration and
management of this Agreement and the Loan Documents and (xi) to the extent
necessary or customary for inclusion in league table measurement. For the
purposes of this
Section 9.12
, "
Information
" means all information received from the Borrower or any of its Related
Parties relating to the Borrower, Intermediate SPV, the Servicer, any
Originator, or any of their respective businesses and all customer information
in relating to any Originator's customers, including, without limitation,
information received from the Borrower or any of its Related Parties pursuant
to Section 5.6 and 5.7 of this Agreement, other than any such information that
is available other than as a result of a breach of this
Section 9.12
to any Agent or any Lender on a nonconfidential basis prior to disclosure by
the Borrower. Any Person required to maintain the confidentiality of
Information as provided in this
Section 9.12
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality
of such Information as such Person would accord to its own confidential
information which shall in no event be less than commercially reasonable care.
Section 9.13
PATRIOT Act
Each Lender that is subject to the requirements of the PATRIOT Act hereby
notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it
may be 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.
Section 9.14
Release of Liens; Secured Parties
(a) In the event that the Borrower conveys, sells, leases, assigns,
transfers or otherwise Disposes of all or any portion of any of the Capital
Stock or assets of the Borrower to a Person that is not (and is not required
hereunder to become) the Borrower in a transaction permitted under this
Agreement, the Liens created by the Loan Documents in respect of such Capital
Stock or assets shall automatically terminate and be released, without the
requirement for any further action by any Person and the Collateral Agent
shall promptly (and the Lenders hereby authorize the Collateral Agent to) take
such action and execute any such documents as may be reasonably requested by
the Borrower and at the Borrower's expense to further document and evidence
such termination and release of Liens created by any Loan Document in respect
of such Capital Stock or assets.
(b) Upon the payment in full of the Obligations and the termination or
expiration of the Total Revolving Credit Commitments, all Liens created by the
Loan Documents shall automatically terminate and be released, without the
requirement for any further action by any Person and the Collateral Agent
shall promptly (and the Lenders hereby authorize the Collateral Agent to) take
such action and execute any such documents as may be reasonably requested by
the Borrower and at the Borrower's expense to further document and evidence
such termination and release of Liens created by the Loan Documents (including
by way of assignment) shall automatically terminate and be released, without
the requirement for any further action by any Person and the Collateral Agent
shall promptly (and the Lenders hereby authorize the
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Collateral Agent to) take such action and execute any such documents as may be
reasonably requested by the Borrower and at the Borrower's expense to further
document and evidence such termination.
(c) Except with respect to the exercise of setoff rights of any Lender in
accordance with
Section 9.8
or with respect to a Lender's right to file a proof of claim in an insolvency
proceeding, no Secured Party shall have any right individually to realize upon
any of the Collateral or to enforce any guarantee of the Obligations, it being
understood and agreed that all powers, rights and remedies under the Loan
Documents with respect to the Collateral may be exercised solely by the
Collateral Agent on behalf of the Secured Parties in accordance with the terms
thereof. In the event of a foreclosure by the Collateral Agent on any of the
Collateral pursuant to a public or private sale or other disposition, the
Collateral Agent or any Lender may be the purchaser or licensor of any or all
of such Collateral at any such sale or other disposition, and the Collateral
Agent, as agent for and representative of the Secured Parties (but not any
Lender or Lenders in its or their respective individual capacities unless the
Required Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any collateral payable by the Collateral Agent on behalf of the Secured
Parties at such sale or other disposition. In furtherance of the foregoing, no
agreements the obligations under which constitute Cash Management Obligations
will create (or be deemed to create) in favor of any Secured Party that is a
party thereto any rights in connection with the management or release of any
Collateral or of the obligations of the Borrower under this Agreement or any
other Loan Document. By accepting the benefits of the Collateral, each Secured
Party that is a party to any such agreement in respect of Cash Management
Services shall be deemed to have appointed the Administrative Agent and the
Collateral Agent to serve as administrative agent and collateral agent, as
applicable, under the Loan Documents and agreed to be bound by the Loan
Documents as a Secured Party thereunder, subject to the limitations set forth
in this paragraph.
Section 9.15
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 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 relevant
Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by such 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 from time to time in effect.
Section 9.16
No Fiduciary Duty
Each Agent, each Lender, and their respective Affiliates (collectively, solely
for purposes of this paragraph, the "
Lender Parties
") may have economic interests that conflict with those of the Borrower, their
stockholders and/or their affiliates. The Borrower agrees that nothing in the
Loan Documents or otherwise will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between any Lender
Parties, on the one hand, and the Borrower, its stockholders or its
affiliates, on the other. The Borrower acknowledge and agree that (i) the
transactions contemplated by the Loan Documents (including the exercise of
rights and remedies hereunder and thereunder) are arm's-length commercial
transactions between the Lender Parties, on the one hand, and the Borrower, on
the other and (ii) in connection therewith and with the process leading
thereto, (x) no Lender Parties have assumed any advisory
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or fiduciary responsibility in favor of the Borrower, its stockholders or its
affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading
thereto (irrespective of whether any Lender Parties have advised, are
currently advising or will advise the Borrower, its stockholders or its
Affiliates on other matters) or any other obligation to the Borrower except
the obligations expressly set forth in the Loan Documents and (y) the Lender
Parties are acting solely as principals and not as the agents or fiduciaries
of the Borrower, its management, stockholders, creditors or any other Person.
The Borrower acknowledges and agrees that it has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such
transactions and the process leading thereto. The Borrower agrees that it will
not claim that the Lender Parties have rendered advisory services of any
nature or respect, or owe a fiduciary or similar duty to the Borrower, in
connection with such transaction or the process leading thereto.
Section 9.17
Interest Rate Limitation
In no event shall the interest rate or rates payable under this Agreement,
plus
any other amounts paid in connection herewith, exceed the highest rate
permissible under any law that a court of competent jurisdiction shall, in a
final determination, deem applicable. The Borrower, the Agents and the
Lenders, in executing and delivering this Agreement, intend legally to agree
upon the rate or rates of interest and manner of payment stated within it;
provided
that anything contained herein to the contrary notwithstanding, if such rate
or rates of interest or manner of payment exceeds the maximum allowable under
applicable law, then,
ipso facto
, as of the date of this Agreement, the Borrower is and shall be liable only
for the payment of such maximum amount as is allowed by law, and payment
received from the Borrower in excess of such legal maximum, whenever received,
shall be applied to reduce the principal balance of the Obligations to the
extent of such excess.
Section 9.18
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
Notwithstanding anything to the contrary in any Loan Document or in any other
agreement, arrangement or understanding among any such parties, each party
hereto acknowledges that any liability of any Affected Financial Institution
arising under any Loan Document, to the extent such liability is unsecured,
may be subject to the write-down and conversion powers of the applicable
Resolution Authority and agrees and consents to, and acknowledges and agrees
to be bound by:
(a) the application of any Write-Down and Conversion Powers by the
applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an Affected Financial
Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if
applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such Affected Financial Institution, its
parent undertaking, or a bridge institution that may be issued to it or
otherwise conferred on it, and that such shares or other instruments of
ownership will be accepted by it in lieu of any rights with respect to any
such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of the applicable Resolution
Authority.
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US-DOCS\148017393.28
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Section 9.19
Acknowledgement Regarding Any Supported QFCs
To the extent that the Loan Documents provide support, through a guarantee or
otherwise, for Swap Obligations or any other agreement or instrument that is a
QFC (such support, "
QFC Credit Support
" and each such QFC a "
Supported QFC
"), the parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under the
Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the "
U.S. Special Resolution Regimes
") in respect of such Supported QFC and QFC Credit Support (with the
provisions below applicable notwithstanding that the Loan Documents and any
Supported QFC may in fact be stated to be governed by the laws of the State of
New York or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a "
Covered Party
") becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest and obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or such QFC
Credit Support) from such Covered Party will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if
the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United
States or a state of the United States. In the event a Covered Party or a BHC
Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under the Loan Documents that might
otherwise apply to such Supported QFC or any QFC Credit Support that may be
exercised against such Covered Party are permitted to be exercised to no
greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if the Supported QFC and the Loan Documents were
governed by the laws of the United States or a state of the United States.
(b) As used in this
Section 9.19
, the following terms have the following meanings:
"
BHC Act Affiliate
": of a party means an "affiliate" (as such term is defined under, and
interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
"
Covered Entity
": any of the following:
(i) a "covered entity" as that term is defined in, and interpreted in
accordance with, 12 C.F.R. (s) 252.82(b)
(ii) a "covered bank" as that term is defined in, and interpreted in
accordance with, 12 C.F.R. (s) 47.3(b); or
(iii) a "covered FSI" as that term is defined in, and interpreted in
accordance with, 12 C.F.R. (s) 382.2(b).
"
Default Right
": shall have the meaning assigned to that term in, and shall be interpreted
in accordance with, 12 C.F.R. (s)(s) 252.81, 47.2 or 382.1, as applicable.
"
QFC
": shall have the meaning assigned to the term "qualified financial contract"
in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US-DOCS\148017393.28
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
HE AR BRWR LLC
, as Borrower
By: HE AR INTER LLC
Its Member
By: HAWAIIAN ELECTRIC COMPANY,
INC.
Its Member
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its President and
Chief Executive Officer
By: /s/ Paul K. Ito
Paul K. Ito
Its Senior Vice President,
Chief Financial Officer & Treasurer
[Signature Page to ABL Credit Agreement]
-------------------------------------------------------------------------------
BARCLAYS BANK PLC
,
as the Administrative Agent, the Funding Agent, the
Collateral Agent and as a Lender
By: /s/ Joseph Jordan
Name: Joseph Jordan
Title: Managing Director
[Signature Page to ABL Credit Agreement]
-------------------------------------------------------------------------------
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as the Co-Collateral Agent and as a Lender
By: /s/ Michael Matranga
Name: Michael Matranga
Title: Authorized Signatory
[Signature Page to ABL Credit Agreement]
-------------------------------------------------------------------------------
FIRST-CITIZENS BANK & TRUST COMPANY
,
as a Lender
By: /s/ Zachary Schwartz
Name: Zachary Schwartz
Title: Director
[Signature Page to ABL Credit Agreement]
-------------------------------------------------------------------------------
SCHEDULE 2.1
Lenders
Part A - Tranche A Revolving Credit Commitments (Residential)
Lender Tranche A Revolving Credit Commitment
Barclays Bank PLC $43,333,160.00
First-Citizens Bank & Trust Company $21,666,840.00
Total $65,000,000.00
Part B - Tranche B Revolving Credit Commitments (Non-Residential)
Lender Tranche B Revolving Credit Commitment
Barclays Bank PLC $48,332,840.00
First-Citizens Bank & Trust Company $61,667,160.00
Wells Fargo Bank, N.A. $75,000,000.00
Total $185,000,000.00
US-DOCS\150931992.2
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SCHEDULE A-1
Funding Agent's Account
Bank Name: Barclays
Address (City, State): 745 7th Avenue New York NY, 10019
ABA#: 026 002 574
Account Name: Clad Control Account
Account Number: 050-019104
US-DOCS\150931992.2
-------------------------------------------------------------------------------
EXHIBIT A-1
to the ABL
Credit Agreement
[FORM OF]
BORROWER COLLATERAL AGREEMENT
[ATTACHED]
A-1
US-DOCS\149007241.10
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Execution Version
ABL COLLATERAL AGREEMENT
dated as of
May 17, 2024,
by
HE AR BRWR LLC,
as Grantor
in favor of
BARCLAYS BANK PLC,
as Collateral Agent
US-DOCS\148919012.9
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TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS 1
1.1 Definitions 1
1.2 Other Definitional Provisions 4
SECTION 2. [RESERVED] 4
SECTION 3. GRANT OF SECURITY INTEREST 4
SECTION 4. REPRESENTATIONS AND WARRANTIES 6
4.1 Title; No Other Liens 6
4.2 Perfected First Priority Liens 6
4.3 Name; Jurisdiction of Organization, etc. 6
4.4 Commercial Tort Claims 7
4.5 Investment Property and Pledged Securities 7
4.6 Intellectual Property 7
4.7 Deposit Accounts 8
SECTION 5. COVENANTS 8
5.1 Maintenance of Insurance 8
5.2 Maintenance of Perfected Security Interest; Further Documentation 8
5.3 Changes in Locations, Name, Jurisdiction of Incorporation, etc. 9
5.4 Commercial Tort Claims 9
5.5 Delivery of Pledged Securities; Certified Securities 9
5.6 Intellectual Property 10
SECTION 6. REMEDIAL PROVISIONS 10
6.1 Communications with Account Debtors; Grantor Remains Liable 10
6.2 Pledged Securities 10
6.3 Proceeds to be Turned Over to the Collateral Agent 11
6.4 Application of Proceeds 12
6.5 Code and Other Remedies 13
6.6 Remedies for Intellectual Property 15
6.7 Waiver; Deficiency 15
SECTION 7. THE COLLATERAL AGENT 15
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc. 15
7.2 Duty of Collateral Agent 17
7.3 Execution of Financing Statements 17
7.4 Authority of Collateral Agent 18
7.5 Qualified Counterparties 18
SECTION 8. [RESERVED] 18
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US-DOCS\148919012.9
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SECTION 9. MISCELLANEOUS 18
9.1 Amendments in Writing 18
9.2 Notices 18
9.3 No Waiver by Course of Conduct; Cumulative Remedies 18
9.4 Enforcement Expenses; Indemnification 18
9.5 Successors and Assigns 19
9.6 Set-off 19
9.7 Counterparts 19
9.8 Severability 20
9.9 Section Headings 20
9.10 Integration 20
9.11 Governing Law 20
9.12 Submission to Jurisdiction; Waivers 20
9.13 Releases 21
9.14 No Fiduciary Duty 21
9.15 WAIVER OF JURY TRIAL 21
SCHEDULES
Schedule 1 Description of Pledged Investment Property
Schedule 2 Filings and Other Actions Required to Perfect Security Interests
Schedule 3 Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office
Schedule 3 Commercial Tort Claims
Schedule 3 Intellectual Property
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US-DOCS\148919012.9
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ABL COLLATERAL AGREEMENT, dated as of May 17, 2024 (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time,
this "
Agreement
") made by HE AR BRWR LLC, a Delaware limited liability company (the "
Grantor
") in favor of BARCLAYS BANK PLC, as collateral agent (together with its
successors and permitted assigns in such capacity, the "
Collateral Agent
") for the benefit of (a) the Lenders from time to time parties to the ABL
Credit Agreement, dated as of the date hereof (as amended, restated, amended
and restated, supplemented, refinanced or otherwise modified from time to
time, the "
Credit Agreement
"), among the Grantor, the Collateral Agent, the several banks and other
financial institutions from time to time parties thereto as Lenders and
Agents, and (b) the other Secured Parties (as hereinafter defined).
WITNESSETH
:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed
to make extensions of credit to the Grantor upon the terms and subject to the
conditions set forth therein;
WHEREAS, Qualified Counterparties may from time to time provide Cash
Management Services to the Grantor in accordance with the terms of the Credit
Agreement;
WHEREAS, the Grantor will derive substantial direct and indirect benefit from
the making of the extensions of credit under the Credit Agreement and from
such Cash Management Services; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make
their respective extensions of credit to the Grantor under the Credit
Agreement that the Grantor shall have executed and delivered this Agreement to
the Collateral Agent for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the above premises the parties hereto
hereby agree as follows:
SECTION 1. DEFINED TERMS
1.1
Definitions
. (a) Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement;
provided
that each term defined in the New York UCC and not defined in this Agreement
shall have the meaning specified in the New York UCC.
(b) The following terms shall have the following meanings:
"
Account
": the collective reference to (ii) all "accounts as such term is defined in
Section 9-102(a)(2) of the New York UCC, and (ii) all "Accounts" as defined in
the Credit Agreement.
"
Agreement
": as defined in the preamble hereto.
"
Applicable Date
": the Closing Date, the Effective Date and each Sale Date (as defined in the
Borrower Purchase Agreement).
"
Closing Date
": the date of this Agreement.
"
Collateral
": as defined in
Section 3(a)
.
"
Collateral Account
": any collateral deposit account established by the Collateral Agent to hold
cash pending application to the Obligations.
US-DOCS\149007241.9
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"
Collateral Agent
": as defined in the preamble hereto.
"
Commodity Exchange Act
": the Commodity Exchange Act (7 U.S.C. (s) 1 et seq.).
"
Copyright Licenses
": any written agreement naming the Grantor as licensor or licensee, providing
for the granting by or to the Grantor of any right in or to any Copyright.
"
Copyrights
": (i) all United States and foreign copyrights, whether or not the underlying
works of authorship have been published and whether as author, assignee,
transferee or otherwise, including but not limited to copyrights in software
and databases, all Mask Works (as defined in 17 U.S.C. 901 of the U.S.
Copyright Act) and all works of authorship, all right, title and interest to
make and exploit all derivative works based on or adopted from works covered
by such copyrights, and all copyright registrations, copyright applications,
mask works registrations and mask works applications, and any renewals or
extensions thereof, including each registration and application identified in
Schedule 4
(as such schedule may be amended from time to time), and (ii) the rights to
print, publish and distribute any of the foregoing.
"
Credit Agreement
": as defined in the preamble hereto.
"
Discharge of Obligations
": shall have occurred when (a) (i) all Obligations have been paid in full in
cash and all other obligations under the Loan Documents have been performed
(other than contingent obligations as to which no claim has been asserted),
and (ii) obligations and liabilities under Cash Management Obligations as to
which arrangements satisfactory to the applicable Qualified Counterparties
shall have been made and (b) all Revolving Credit Commitments shall have been
terminated or expired; when referring to Obligations, "
Discharged
" shall have a correlative meaning.
"
Grantor
": as defined in the preamble hereto.
"
Infringement
": infringement, misappropriation, dilution or other impairment or violation,
and "
Infringe
" shall have a correlative meaning.
"
Intellectual Property
": the collective reference to all rights relating to intellectual property
and industrial designs, whether arising under United States federal or state
laws, multinational or foreign laws, including (i) the Copyrights, the
Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses and the Trade Secrets, and (ii) all extensions, renewals,
reissues, substitutes, divisions, continuations and restorations thereof,
(iii) all rights to sue or otherwise recover for any past, present and future
infringement or other violation thereof, (iv) all Proceeds of the foregoing,
including, without limitation, license fees, royalties, income, payments,
claims, damages and proceeds of suit now or hereafter due and/or payable with
respect thereto, and (v) all other rights of any kind accruing thereunder or
pertaining thereto throughout the world.
"
Investment Property
": the collective reference to (i) all "investment property" as such term is
defined in
Section 9-102(a)(49)
of the New York UCC, (ii) security entitlements, in the case of any United
States Treasury book-entry securities, as defined in 31 C.F.R. section 357.2,
or, in the case of any United States federal agency book-entry securities, as
defined in the corresponding United States federal regulations governing such
book-entry securities, and (iii) whether or not constituting "investment
property" as so defined under
clause (i)
, all Pledged Securities.
"
Issuers
": the collective reference to each issuer of a Pledged Security that is
pledged by the Grantor hereunder.
-2-
US-DOCS\148919012.9
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"
License
": any Patent License, Trademark License, Copyright License or other license
or sublicense agreement relating to Intellectual Property to which the Grantor
is a party.
"
New York UCC
": the Uniform Commercial Code as from time to time in effect in the State of
New York.
"
Patent License
": all written agreements naming the Grantor as licensor or licensee,
providing for the granting by or to the Grantor of any right in or to a Patent.
"
Patents
": (i) all United States and foreign patents, patent applications and
patentable inventions, including each issued patent and patent application
identified in
Schedule 5
(as such schedule may be amended from time to time), all certificates of
invention or similar property rights and all registrations, recordings and
pending applications thereof, (ii) all inventions and improvements described
and claimed therein, and (iii) all reissues, divisions, reexaminations,
continuations, continuations-in-part, substitutes, renewals, and extensions
thereof and all improvements thereon.
"
Pledged Capital Stock
": all shares or other equity interests constituting Capital Stock now owned
or hereafter acquired by the Grantor, including all shares of Capital Stock
described on
Schedule 1
(as such schedule may be amended from time to time), and the certificates, if
any, representing such Capital Stock and any interest of the Grantor in the
entries on the books of the issuer of such Capital Stock and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Capital Stock
and any other warrant, right or option to acquire any of the foregoing.
"
Pledged Debt Securities
": all debt securities now owned or hereafter acquired by the Grantor,
including the debt securities listed on
Schedule 1
(as such schedule may be amended from time to time).
"
Pledged Notes
": all promissory notes and other evidences of Indebtedness that constitute
Instruments now owned or hereafter acquired by the Grantor, including those
listed on
Schedule 1
(as such schedule may be amended from time to time).
"
Pledged Securities
": the collective reference to the Pledged Debt Securities, the Pledged Notes
and the Pledged Capital Stock.
"
Proceeds
": all "proceeds" as such term is defined in
Section 9-102(a)(64)
of the New York UCC and, in any event, shall include, all dividends or other
income from the Pledged Securities, collections thereon or distributions or
payments with respect thereto.
"
Registered Intellectual Property
": as defined in
Section 4.6
.
"
Secured Parties
": collectively, the Collateral Agent, the Lenders and the Indemnitees (as
defined in the Credit Agreement) and, with respect to any Cash Management
Obligations, any Qualified Counterparty;
provided
that no Qualified Counterparty shall have any rights in connection with the
management or release of any Collateral or the obligations of the Grantor
under this Agreement.
"
Trade Secrets
": all trade secrets and all confidential and proprietary information,
including know-how, manufacturing and production processes and techniques,
inventions, research and development information, technical data, financial,
marketing and business data, pricing and cost information, business and
marketing plans, and customer and supplier lists and information, formulae,
parts, diagrams, drawings, specifications, blue prints, lists of materials,
and production manuals.
-3-
US-DOCS\148919012.9
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"
Trademark License
": any written agreement naming the Grantor as licensor or licensee providing
for the granting by or to the Grantor of any right in or to any Trademark.
"
Trademarks
": (i) all United States, state and foreign trademarks, service marks, trade
names, corporate names, company names, business names, fictitious business
names, trade dress, trade styles, logos, or other indicia of origin or source
identification, Internet domain names, trademark and service mark
registrations, designs and general intangibles of like nature, and
applications for trademark or service mark registrations and any renewals
thereof, including each registration and application identified in
Schedule 5
(as such schedule may be amended from time to time) and (ii) the goodwill of
the business connected with the use of, and symbolized by, each of the above.
"
UCC
" or "
Uniform Commercial Code
": the New York UCC or, where the context requires, the Uniform Commercial
Code or any equivalent statute of any other relevant jurisdiction.
"
USCO
": as defined in
Section 3(b)
.
"
USPTO
": as defined in
Section 3(b)
.
1.2
Other Definitional Provisions
. (a) Except as otherwise expressly set forth herein, the rules of
construction specified in Section 1.2 of the Credit Agreement are incorporated
herein by reference
mutatis mutandis
.
(b) Where the context requires, terms relating to the Collateral or any
part thereof, when used in relation to the Grantor, shall refer to the
Grantor's Collateral or the relevant part thereof.
(c) All references herein to provisions of the UCC shall include all
successor provisions under any subsequent version or amendment to any Article
of the UCC.
(d) In the event of any conflict between the terms of this Agreement and
the Credit Agreement, the Credit Agreement shall govern and control.
SECTION 2. [RESERVED]
SECTION 3. GRANT OF SECURITY INTEREST
(a) The Grantor hereby grants and collaterally assigns and transfers to the
Collateral Agent, for the benefit of the Secured Parties, a security interest
in, all of its right, title and interest in and to all of the following
personal property, in each case, wherever located and whether now owned or at
any time hereafter acquired by the Grantor or in which the Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "
Collateral
"), as collateral security for the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations:
(i) all Accounts, all Related Rights, all Related Security and all assets
purchased by the Grantor pursuant to the Borrower Purchase Agreement;
(ii) all Chattel Paper;
(iii) all cash, cash equivalents and Deposit Accounts, Securities Accounts
and Commodity Accounts;
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US-DOCS\148919012.9
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(iv) all Documents;
(v) all Equipment;
(vi) all Fixtures;
(vii) all General Intangibles and including all rights, title, and
interests in, to, and under the Borrower Purchase Agreement and all Liens
granted thereunder;
(viii) all Instruments;
(ix) all Intellectual Property and all Licenses;
(x) all Inventory;
(xi) all Investment Property;
(xii) all Letter of Credit Rights;
(xiii) all Money;
(xiv) all Pledged Securities;
(xv) all Goods not otherwise described above;
(xvi) all Collateral Accounts;
(xvii) all Commercial Tort Claims listed on
Schedule 4
(as such schedule may be amended from time to time, including pursuant to
Section 5.5
);
(xviii) all books, records, ledger cards, files, correspondence, customer
lists, blueprints, technical specifications, manuals, computer software,
computer printouts, tapes, disks and other electronic storage media and
related data processing software and similar items that at any time evidence
or contain information relating to any of the Collateral or are otherwise
necessary or helpful in the collection thereof or realization thereupon; and
(xix) to the extent not otherwise included, all other personal property of
the Grantor and all Proceeds, products, accessions, rents and profits of any
and all of the foregoing and all collateral security, Supporting Obligations
and guarantees given by any Person with respect to any of the foregoing.
Without limitation of the foregoing grant, the Grantor hereby collateraly
assigns to the Collateral Agent for the benefit of the other Secured Parties
each of the Liens and security interests granted to it under the Borrower
Purchase Agreement and all of the rights, title, and interests in, to, and
under the Borrower Purchase Agreement (but not the obligations thereunder)
(the "
Assignment
").
(b) Notwithstanding anything to the contrary in the Loan Documents, the
Grantor shall not be required pursuant to this Agreement, to take any action
to perfect the security interests granted by this Agreement by any means other
than by (1) filings pursuant to the UCC in the office of the Secretary of
State (or similar central filing office) of the relevant State or elsewhere as
required by the UCC, (2) filings of Intellectual Property security agreements
in United States Copyright Office (the "
USCO
") and/or the United States Patent and Trademark Office (the "
USPTO
"), with respect to Intellectual Property as
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expressly required by the Loan Documents, (3) delivery to the Collateral Agent
of all Collateral consisting of Instruments, notes and debt securities and
certificated Capital Stock, and (4) entry into Cash Management Control
Agreements or otherwise deliver evidence of perfection by "control" (within
the meaning of the UCC) with respect to Deposit Accounts or Securities
Accounts to the extent required under Section 2.21 of the Credit Agreement.
(c) Notwithstanding anything herein to the contrary, (i) the Grantor shall
remain liable for all of its obligations in respect of the Collateral and
nothing contained herein is intended or shall be a delegation of duties to the
Collateral Agent or any Secured Party, (ii) subject to Section 9.3 of the
Credit Agreement, the Grantor agrees to indemnify and hold harmless the
Collateral Agent and the Secured Parties from and against any and all
liability for performance under each contract, agreement or instrument
relating to the Collateral, (iii) the Grantor shall remain liable under each
of its agreements included in the Collateral, and shall perform all of its
obligations undertaken by it thereunder all in accordance with and pursuant to
the terms and provisions thereof and neither the Collateral Agent nor any
other Secured Party shall have any obligation or liability under any of such
agreements or any obligations or liability under any other Collateral by
reason of or arising out of this Agreement or any other document related
thereto, nor shall the Collateral Agent nor any other Secured Party have any
obligation to make any inquiry as to the nature or sufficiency of any payment
received by it or have any obligation to take any action to collect or enforce
any rights under any agreement included in the Collateral and (iv) the
exercise by the Collateral Agent of any of its rights hereunder shall not
release the Grantor from any of its duties or obligations under the contracts
and agreements included in the Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Collateral Agent and the Lenders to enter into the Credit
Agreement, to induce the Lenders to make their extensions of credit to the
Grantor thereunder and to induce the Qualified Counterparties to provide Cash
Management Services, the Grantor hereby represents and warrants to the Secured
Parties that:
4.1
Title; No Other Liens
. It owns each item of the Collateral free and clear of any and all Liens
except for Permitted Liens. No effective financing statement, fixture filing
or other public notice under applicable Law with respect to all or any part of
the Collateral is on file or of record in any public office, except those as
have been filed in favor of the Collateral Agent, for the benefit of the
Secured Parties, or that have been filed in favor of Initial Purchaser or
Borrower, in each case for which the Collateral Agent is total assignee /
additional secured party pursuant to this Agreement or the other Loan
Documents or as otherwise permitted by the Credit Agreement or the Loan
Documents.
4.2
Perfected First Priority Liens
. The security interests granted pursuant to this Agreement constitute legal,
valid, binding and enforceable and, subject to any Permitted Liens, first lien
security interests in all of the Collateral in favor of the Collateral Agent,
for the benefit of the Secured Parties, as collateral security for the
Obligations, enforceable against the Grantor in accordance with the terms
hereof, except as enforceability may be limited by applicable Debtor Relief
Laws and by general equitable principles (whether enforcement is sought in
proceedings in equity or at law) and, when financing statements in appropriate
form are filed in the appropriate filing offices as specified on
Schedule 2
, appropriate assignments or notices are filed with the USCO or the USPTO, as
applicable, and such other actions specified in
Sections 5.2
and
5.5
have been completed and upon the payment of all filing fees, will be perfected
(to the extent that perfection therein may be achieved by the foregoing
actions) and will be prior to the Liens on the Collateral of any other Person
(except for Permitted Liens).
4.3
Name; Jurisdiction of Organization, etc.
As of the Applicable Date, its exact legal name (as indicated on the public
record of its jurisdiction of formation or organization), jurisdiction of
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organization, organizational identification number, if any, and the location
of its chief executive office or sole place of business, as the case may be,
are specified on
Schedule 3
(as such schedule may be amended from time to time). Except as specified on
Schedule 3
(as such schedule may be amended from time to time), the Grantor has not
changed its name, jurisdiction of organization, chief executive office or sole
place of business (as the case may be) within the five year period immediately
prior to the Closing Date.
4.4
Commercial Tort Claims
.
Schedule 4
(as such schedule may be amended from time to time) lists, as of the
Applicable Date, each Commercial Tort Claim with respect to the Grantor that,
in its the reasonable determination, is estimated to be in excess of $100,000.
4.5
Investment Property and Pledged Securities
.
(a) As of the Applicable Date, the Grantor is the record and beneficial
owner of all Pledged Capital Stock pledged by it hereunder which is issued by
any Subsidiary of a Grantor, and the Grantor has good title to all such
Pledged Capital Stock and to all other Investment Property pledged by it
hereunder, free of any and all Liens, except Permitted Liens.
Schedule 1
(as such schedule may be amended from time to time) sets forth as of the
Applicable Date all of the Pledged Capital Stock owned by the Grantor, and
such Pledged Capital Stock as of such Applicable Date constitutes the
percentage of issued and outstanding shares of stock, percentage of membership
interests, percentage of partnership interests or percentage of beneficial
interest of the respective Issuers thereof indicated on such schedule, as
applicable.
Schedule 1
(as such schedule may be amended from time to time) sets forth as of the
Applicable Date all of the Pledged Debt Securities and Pledged Notes owned by
the Grantor that are required to be delivered to the Collateral Agent pursuant
to
Section 5.5(a)
.
(b) The shares of Pledged Capital Stock pledged by the Grantor hereunder
constitute all of the issued and outstanding shares of all classes of the
Capital Stock of each issuer of Capital Stock included in the Collateral owned
by the Grantor. All the shares of the Pledged Capital Stock issued by any
Subsidiary of the Grantors have been duly and validly authorized and issued
and are fully paid and nonassessable. All the Pledged Debt Securities and
Pledged Notes issued by any Subsidiary of the Grantors have been duly and
validly authorized and issued and are legal, valid and binding obligations of
the issuers thereof.
4.6
Intellectual Property
.
Schedule 5
(as such schedule may be amended from time to time) lists as of the Applicable
Date all issued Patents and pending Patent applications of the Grantor with
the USPTO, all registered Copyrights, and pending Copyright applications of
the Grantor with the USCO, all registered Trademarks and pending Trademark
applications of the Grantor with the USPTO (collectively, "
Registered Intellectual Property
"), and all exclusive Copyright Licenses. Except as would not have or
reasonably be expected to have a Material Adverse Effect:
(i) the Grantor owns or has the right to use all Intellectual Property that
is used in its business as currently conducted, free of all Liens other than
Permitted Liens, and takes reasonable actions to protect, preserve and
maintain such Intellectual Property;
(ii) on the date hereof, (A) all Intellectual Property owned or exclusively
licensed by the Grantor (I) is valid, unexpired and enforceable and (II) to
the Grantor's knowledge, does not Infringe the intellectual property rights of
any other Person, and is not being Infringed by any other Person, and (B) all
Registered Intellectual Property has not expired or been abandoned and all
exclusive Copyright Licenses are in full force and effect;
(iii) as of the date hereof, no holding, decision or judgment has been
rendered by any Governmental Authority or arbitrator which would limit, cancel
or challenge the validity,
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enforceability, ownership or use of the Grantor's rights in any Intellectual
Property in any respect, and the Grantor knows of no valid basis for same; and
(iv) no action or proceeding is pending or, to the knowledge of the
Grantor, threatened in writing, in each case, on the date hereof seeking to
limit, cancel or challenge the validity, enforceability, ownership or use of
any Intellectual Property or the Grantor's interest therein.
4.7
Deposit Accounts
. As of the Applicable Date, all Deposit Accounts of the Grantor are
Controlled Accounts.
SECTION 5. COVENANTS
The Grantor covenants and agrees with the Secured Parties that, until the
Discharge of Obligations:
5.1
Maintenance of Insurance
. The Grantor will maintain insurance on all its property as and to the extent
required by Section 5.5 of the Credit Agreement.
5.2
Maintenance of Perfected Security Interest; Further Documentation
. (a) Subject to the provisions of Section 5.9 of the Credit Agreement and
Section 3(b)
hereof, the Grantor shall maintain the security interest created by this
Agreement on the Collateral as a perfected security interest having at least
the priority described in
Section 4.2
, shall cause such Collateral to remain free of Liens other than Permitted
Liens, and shall use commercially reasonable efforts to defend such security
interest against the claims and demands of all Persons whomsoever (other than
Permitted Liens).
(b) The Grantor agrees to maintain, at its own cost and expense, complete
and accurate records in all material respects with respect to the Collateral
owned by it, in any event to include complete accounting records in all
respects with respect to all payments and proceeds received with respect to
any part of the Collateral, and, at such time or times as the Collateral Agent
may reasonably request, promptly to prepare and deliver to the Collateral
Agent a duly certified schedule or schedules in form and detail reasonably
satisfactory to the Collateral Agent showing the identity, amount and location
of any Collateral.
(c) Subject to the provisions of Section 5.9 of the Credit Agreement and
Section 3(b)
hereof, at any time and from time to time, upon the written request of the
Collateral Agent, and at the sole expense of the Grantor, the Grantor will
promptly and duly authorize, execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Collateral Agent may reasonably request to better assure, preserve, protect
and perfect the security interests granted hereby, the full benefits of this
Agreement and the rights and powers herein granted, including (i) subject to
Section 2.16 and Section 9.3 of the Credit Agreement, the payment of any fees
and taxes required in connection with the execution and delivery of this
Agreement and the granting and perfecting of the security interests, (ii) the
filing of any financing or continuation statements under the Uniform
Commercial Code in effect in any applicable jurisdiction within the United
States and (iii) in the case of any Deposit Accounts and any other relevant
Collateral, taking any actions necessary to enable the Collateral Agent to
obtain "control" with respect thereto, including without limitation the entry
into Cash Management Control Agreements in accordance with Section 2.21 of the
Credit Agreement. The Grantor will provide to the Collateral Agent from time
to time upon reasonable request, evidence reasonably satisfactory to the
Collateral Agent as to the perfection (to the extent required by this
Agreement) and priority of the Lien created or intended to be created pursuant
to this Agreement.
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5.3
Changes in Locations, Name, Jurisdiction of Incorporation, etc.
If the Grantor (i) changes its jurisdiction of organization or the location of
its chief executive office from that referred to on
Schedule 3
(as such schedule may be amended from time to time), (ii) changes its legal
name or (iii) changes its type of organization, the Grantor shall provide
written notice to the Collateral Agent within ten Business Days after any such
change and, substantially concurrently with such written notice (or within
such other period as is reasonably acceptable to the Collateral Agent), shall
deliver to the Collateral Agent all additional financing statements and any
other documents necessary to maintain the validity, perfection and priority of
the security interests in the Collateral provided for herein, subject to the
provisions of Section 5.9 of the Credit Agreement and
Section 3(b)
of this Agreement.
5.4
Commercial Tort Claims
. If the Grantor shall obtain an interest in any Commercial Tort Claim with an
estimated value in excess of $100,000, it shall (a) on the Closing Date (in
the case of any such interest in any Commercial Tort Claims owned by the
Grantor on the Closing Date) or (b) with respect to any such interest obtained
after the Closing Date, no later than the later of (i) the next date of
delivery of a Compliance Certificate pursuant to Section 5.1(b) of the Credit
Agreement covering the period that includes the date of the acquisition or
creation of such Collateral and (ii) 60 days after such acquisition or
creation of such Collateral (or such later date as the Collateral Agent may
agree in its reasonable discretion), the Grantor shall sign and deliver
documentation reasonably requested by and reasonably acceptable to the
Collateral Agent granting a security interest under the terms and provisions
of this Agreement in and to such Commercial Tort Claim and the proceeds
thereof.
5.5
Delivery of Pledged Securities; Certificated Securities
.
(a) If any of the Collateral consists of an Instrument, note or debt
security with a principal amount of $100,000 or more, such Instrument, note or
debt security shall be delivered to the Collateral Agent (i) with respect to
any such Collateral owned by the Grantor on the Closing Date, on the Closing
Date, or (ii) with respect to any such Collateral obtained after the Closing
Date, no later than the later of (x) the next date of delivery of a Compliance
Certificate pursuant to Section 5.1(b) of the Credit Agreement covering the
period that includes the date of the acquisition or creation of such
Collateral and (y) 60 days after such acquisition or creation of such
Collateral (or such later date as the Collateral Agent may agree in its
reasonable discretion), in each case accompanied by proper instruments of
assignment duly executed by the Grantor in blank in a manner and form
reasonably satisfactory to the Collateral Agent (in each case to the extent
delivery of such instruments of assignment are customary under applicable
Requirements of Law), to be held as Collateral pursuant to this Agreement.
(b) If any of the Collateral consisting of Capital Stock of a Subsidiary of
the Grantor is or shall become evidenced or represented, by any certificate,
such certificate shall be delivered to the Collateral Agent (i) with respect
to any such Collateral owned by the Grantor on the Closing Date, on the
Closing Date, or (ii) with respect to any such Collateral obtained after the
Closing Date, no later than the later of (x) the next date of delivery of a
Compliance Certificate pursuant to Section 5.1(b) of the Credit Agreement
covering the period that includes the date of the acquisition or creation of
such Collateral and (y) 60 days after such acquisition or creation of such
Collateral (or such later date as the Collateral Agent may agree in its
reasonable discretion), in each case accompanied by undated stock powers or
other instruments of transfer duly executed by the Grantor in blank in a
manner and in such form as contemplated by applicable Law, to be held as
Collateral pursuant to this Agreement.
(c) The Grantor acknowledges and agrees that to the extent each interest in
any limited liability company or limited partnership that is a Subsidiary of a
Grantor and pledged hereunder is a "security" within the meaning of Article 8
of the New York UCC and is governed by Article 8 of the New York UCC or the
Uniform Commercial Code of any other applicable jurisdiction, such interest
shall be certificated and delivered to the Collateral Agent in accordance with
the provisions of
Section 5.5(b)
.
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5.6
Intellectual Property
.
(a) The Grantor will not (and will not affirmatively permit any licensee or
sublicensee thereof to) do any act, or omit to do any act, whereby any
material Intellectual Property owned by the Grantor may become forfeited,
abandoned or dedicated to the public, except as shall be consistent with the
Grantor's commercially reasonable business judgment that the maintenance
thereof is no longer necessary to the conduct of the Grantor's business. The
Grantor shall take all commercially reasonable steps which it (or during the
continuation of an Event of Default, the Collateral Agent) deems reasonable
and appropriate under the circumstances to preserve and protect each item of
its material Intellectual Property.
(b) The Grantor agrees that, should it obtain an ownership interest in any
item of Registered Intellectual Property or be granted any exclusive Copyright
License after the date hereof (the "
After-Acquired Intellectual Property
"), (i) the provisions of
Section 3
hereof shall automatically apply thereto and (ii) any such After-Acquired
Intellectual Property shall automatically become part of the Collateral. The
Grantor shall promptly notify the Collateral Agent of any newly acquired,
created or developed Registered Intellectual Property owned by the Grantor or
new rights granted to the Grantor under any exclusive Copyright License no
later than the later of (x) the next date of delivery of a Compliance
Certificate pursuant to Section 5.1(b) of the Credit Agreement covering the
period that includes the date of the acquisition or creation of such
Collateral and (y) 60 days after such acquisition or creation of such
Collateral (or such later date as the Collateral Agent may agree in its
reasonable discretion), and the Grantor shall execute and file appropriate
assignments or notices with respect to its After-Acquired Intellectual
Property, in order to record the security interest granted herein to the
Collateral Agent for the benefit of the Secured Parties with the USPTO or the
USCO.
SECTION 6. REMEDIAL PROVISIONS
6.1
Communications with Account Debtors; Grantor Remains Liable
. The Collateral Agent may at any time after an Event of Default has occurred
and is continuing require the Grantor to notify the Account Debtor or
counterparty on any Account constituting Collateral of the security interest
of the Collateral Agent therein. In addition, after the occurrence and during
the continuance of an Event of Default, the Collateral Agent may notify, and
may require the Grantor to notify the Account Debtor or counterparty to make
all payments under the Accounts constituting Collateral directly to the
Collateral Agent.
6.2
Pledged Securities
. (a) Unless an Event of Default shall have occurred and be continuing and the
Collateral Agent shall have given prior notice to the Grantor of the
Collateral Agent's intent to exercise its corresponding rights pursuant to
Section 6.2(b)
(which notice shall be deemed to have been given immediately upon the
occurrence of an Event of Default under Section 7.1(f) of the Credit
Agreement), the Grantor shall be permitted to (i) receive all dividends,
interest, principal or other payments or distributions paid or made in respect
of the Pledged Securities, to the extent not prohibited by the Credit
Agreement;
provided
,
however
, that any noncash dividends, interest, principal or other distributions that
would constitute Pledged Capital Stock or Pledged Debt Securities, whether
resulting from a subdivision, combination or reclassification of the
outstanding equity interests of the issuer of any Pledged Securities or
received in exchange for Pledged Securities or any part thereof, or in
redemption thereof, or as a result of any merger, consolidation, acquisition
or other exchange of assets to which such issuer may be a party or otherwise,
shall be and become part of the Collateral, and, if received by the Grantor
shall be held for the benefit of the Secured Parties and shall be forthwith
delivered to the Collateral Agent in the same form as so received (with any
necessary endorsement or instrument of assignment), and (ii) exercise all
voting and corporate or other ownership rights with respect to the Pledged
Securities;
provided
,
however
, that no vote shall be cast or corporate or other ownership right exercised
or other action taken which would reasonably be expected to materially and
adversely affect the rights inuring to a holder of any Pledged Securities or
the rights and remedies of the Collateral Agent or the other Secured Parties
under this Agreement or any other
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Loan Document or the ability of the Secured Parties to exercise the same or
which would violate any provision of this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the Collateral
Agent shall have given prior notice to the Grantor of the Collateral Agent's
intent to execute its rights pursuant to this
Section 6.2(b)
(which notice shall be deemed to have been given immediately upon the
occurrence of an Event of Default under Section 7.1(f) of the Credit
Agreement): (i) all rights of the Grantor to receive and retain all dividends,
interest, principal or other payments paid or made in respect of the Pledged
Securities shall cease and shall thereupon become vested in the Collateral
Agent, who shall have the sole right to receive any and all dividends,
interest, principal or other payments or distributions paid in respect to the
Pledged Securities included in the Collateral and make application thereof to
the Obligations in accordance with
Section 6.4
, (ii) all rights of the Grantor to exercise or refrain from exercising the
voting and other consensual rights which it would otherwise be entitled to
exercise pursuant hereto shall cease and all such rights shall thereupon
become vested in the Collateral Agent which shall thereupon have the sole
right, but shall be under no obligation, to exercise or refrain from
exercising such voting and other consensual rights and (iii) the Collateral
Agent shall have the right, without notice to the Grantor, to transfer all or
any portion of the Investment Property included in the Collateral to its name
or the name of its nominee or agent or the name of the applicable Grantor,
endorsed or assigned in blank in favor of the Collateral Agent, and the
Grantor will, upon request, promptly give to the Collateral Agent copies of
any notices or other communications received by it with respect to Pledged
Securities included in the Collateral registered in the name of the Grantor.
In addition, if an Event of Default has occurred and is continuing, the
Collateral Agent shall have the right at any time, without notice to the
Grantor, to exchange any certificates or instruments representing any
Investment Property included in the Collateral for certificates or instruments
of smaller or larger denominations. In order to permit the Collateral Agent to
exercise the voting and other consensual rights which it may be entitled to
exercise pursuant hereto and to receive all dividends and other distributions
which it may be entitled to receive hereunder if an Event of Default has
occurred and is continuing, the Grantor shall promptly execute and deliver (or
cause to be executed and delivered) to the Collateral Agent all proxies,
dividend payment orders and other instruments as the Collateral Agent may from
time to time reasonably request, and the Grantor acknowledges that the
Collateral Agent may utilize the power of attorney set forth herein. All
dividends, interest, principal or other payments or distributions received by
the Grantor contrary to the provisions of this
Section 6.2(b)
shall be held for the benefit of the Collateral Agent, shall be promptly
delivered to the Collateral Agent promptly following demand in the same form
as so received (with any necessary endorsement reasonably requested by the
Collateral Agent).
(c) Any notice given by the Collateral Agent to the Grantor under this
Section 6.2
(i) shall be given in writing (which, for the avoidance of doubt, includes
Electronically) and (ii) may suspend the rights of the Grantor under
paragraph (a)
or
(b)
of this
Section 6.2
in part without suspending all such rights (as specified by the Collateral
Agent in its sole and absolute discretion) and without waiving or otherwise
affecting the Collateral Agent's rights to give additional notices from time
to time suspending other rights so long as an Event of Default has occurred
and is continuing.
(d) The Grantor hereby authorizes and instructs each Issuer of any Pledged
Securities pledged by the Grantor hereunder to (i) comply with any instruction
received by it from the Collateral Agent in writing that states that an Event
of Default has occurred and is continuing, without any other or further
instructions from the Grantor, and (ii) unless otherwise expressly permitted
hereby, pay any dividends or other payments with respect to the Pledged
Securities directly to the Collateral Agent.
6.3
Proceeds to be Turned Over to the Collateral Agent
. If an Event of Default shall occur and be continuing, at the written request
of the Collateral Agent, all Proceeds of Collateral received by the Grantor
consisting of cash, Cash Equivalents and checks shall forthwith upon receipt
by the Grantor, be turned over to the Collateral Agent in the exact form
received by the Grantor (duly endorsed by the
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Grantor to the Collateral Agent, if reasonably required). All such Proceeds of
Collateral received by the Collateral Agent under this
Section 6.3
shall be held by the Collateral Agent in a Collateral Account maintained under
its control (as defined in and subject to Section 9-104 of the New York UCC).
All such Proceeds while held by the Collateral Agent in a Collateral Account
(or by the Grantor for the Secured Parties) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in
Section 6.4
.
6.4
Application of Proceeds
. (a) If an Event of Default shall have occurred and be continuing, at any
time at the Collateral Agent's election, the Collateral Agent may,
notwithstanding the provisions of Section 2.11 of the Credit Agreement, apply
all or any part of the net Proceeds (after deducting out-of-pocket fees and
expenses as provided in
Section 6.5
below) of Collateral realized through the exercise by the Collateral Agent of
its remedies hereunder, whether or not held in any Collateral Account in
payment of the Obligations in the following order:
First
, to payment of that portion of the Obligations constituting out-of-pocket
fees, indemnities, expenses and other amounts (other than principal and
interest and Cash Management Obligations but including attorneys' fees payable
under the Credit Agreement) payable to the Collateral Agent in its capacity as
such;
Second
, to payment of that portion of the Obligations constituting (or constituting
guarantees of) fees, indemnities and other amounts (other than principal and
interest, Cash Management Obligations and, to the extent payable under clause
First
, attorneys' fees) payable to the Secured Parties (including attorneys' fees
payable under the Credit Agreement), ratably among them in proportion to the
amounts described in this clause
Second
payable to them;
Third
, to payment of that portion of the Obligations constituting (or constituting
guarantees of) accrued and unpaid interest on the Revolving Credit Loans,
ratably among the holders of such Obligations in proportion to the respective
amounts described in this clause
Third
payable to them;
Fourth
, to payment of that portion of the Obligations constituting (or constituting
guarantees of) unpaid principal of the Revolving Credit Loans and Cash
Management Obligations (to the extent of the related Reserve), ratably among
the holders of such Obligations in proportion to the respective amounts
described in this clause
Fourth
held by them;
Fifth
, to the payment of amounts (or constituting guarantees of amounts) then due
and payable under Cash Management Obligations for which no Reserve has been
taken that are then due and payable and all other Obligations that are then
due and payable to the Collateral Agent and the other Secured Parties on such
date, ratably based upon the respective aggregate amounts of all such
Obligations owing to the Collateral Agent and the other Secured Parties on
such date; and
Last
, the balance, if any, after the Discharge of Obligations, to the Grantor or
as otherwise required by applicable Law.
(b) The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of proceeds in the amount agreed upon by the
Collateral Agent or by the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of
any part of the purchase money paid over to the Collateral Agent or such
officer or be answerable in any way for the misapplication thereof.
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(c) Notwithstanding the foregoing, Obligations arising in connection with
Cash Management Services shall be excluded from the application described
above if the Collateral Agent has not received written notice thereof,
together with such supporting documentation as the Collateral Agent may
request, from the applicable Qualified Counterparty and the Borrower.
6.5
Code and Other Remedies
. (a) Upon (i) the occurrence and during the continuance of an Event of
Default, and (ii) the Collateral Agent's notice of its intent to exercise such
rights to the Grantor, the Grantor agrees to deliver each item of Collateral
to the Collateral Agent promptly after written demand therefor, and it is
agreed that the Collateral Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC (whether or not the New York UCC applies to the affected
Collateral) and all rights under any other applicable Law or in equity.
Without limiting the generality of the foregoing, the Collateral Agent,
without demand of performance or other demand, defense, presentment, protest,
advertisement or notice of any kind (except any notice required by Law
referred to below) to or upon the Grantor or any other Person (all and each of
which demands, presentments, protests, defenses (other than the defense of
payment or performance or the Discharge of Obligations), advertisements and
notices are hereby waived to the extent permitted by applicable Law), may in
such circumstances forthwith collect, receive, appropriate and realize upon
the Collateral, or any part thereof, or consent to the use by the Grantor of
any cash collateral arising in respect of the Collateral on such terms as the
Collateral Agent deems reasonable, and/or may forthwith sell, lease, license,
assign, give option or options to purchase, or otherwise dispose of and
deliver, or acquire by credit bid on behalf of the Secured Parties, the
Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, at any exchange,
broker's board or office of any Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk, it being understood that any sale pursuant to the provisions of this
Section 6.5
shall be deemed to conform to the commercially reasonable standards under the
UCC with respect to any disposition of Collateral. Each Secured Party shall
have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole
or any part of the Collateral so sold, free of any right or equity of
redemption in the Grantor, which right or equity is hereby waived and
released. To the fullest extent permitted by applicable Law, each purchaser at
any such sale shall hold the property sold to it absolutely free from any
claim or right on the part of the Grantor, and the Grantor hereby waives (to
the extent permitted by applicable Law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any Law
now existing or hereafter enacted. The Grantor agrees that, to the extent
notice of sale shall be required by Law, at least ten days' notice to the
Grantor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Collateral Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. The Collateral Agent
may sell the Collateral without giving any warranties as to the Collateral.
The Collateral Agent may specifically disclaim or modify any warranties of
title or the like. To the fullest extent permitted by applicable Law, this
procedure will not be considered to adversely affect the commercial
reasonableness of any sale of the Collateral. The Grantor agrees that it would
not be commercially unreasonable for the Collateral Agent to dispose of the
Collateral or any portion thereof by using Internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capability of doing so, or that match buyers and sellers of assets.
Each such purchaser at any such sale shall hold the property sold absolutely
free from any claim or right on the part of the Grantor, and the Grantor
hereby waives (to the extent permitted by Law) all rights of redemption, stay
and appraisal which the Grantor now has or may at any time in the future have
under any Law now existing or hereafter enacted. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent
may proceed by a suit or suits at
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law or in equity to foreclose this Agreement and to sell the Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. In the event of a foreclosure by the Collateral Agent on any of the
Collateral pursuant to a public or private sale or other disposition, the
Collateral Agent or any Lender may be the purchaser or licensor of any or all
of such Collateral at any such sale or other disposition, and the Collateral
Agent, at the direction of the Required Lenders, as agent for and
representative of the Secured Parties (but not any Lender or Lenders in its or
their respective individual capacities unless the Required Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such public sale, to use and apply any of the
Obligations as a credit on account of the purchase price for any Collateral
payable by the Collateral Agent on behalf of the Secured Parties at such sale
or other disposition. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof and the
Collateral Agent shall be free to carry out such sale pursuant to such
agreement and the Grantor shall not be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact
that after the Collateral Agent shall have entered into such an agreement all
Events of Default shall have been remedied and the Obligations Discharged. To
the extent permitted by applicable Law, the Grantor waives all claims, damages
and demands it may acquire against the Collateral Agent or any Secured Party
arising out of the exercise by them of any of their rights hereunder. The
Grantor further agrees, at the Collateral Agent's reasonable request, if an
Event of Default has occurred and is continuing, to assemble the Collateral
and make it available to the Collateral Agent at places which the Collateral
Agent shall reasonably select, whether at the Grantor's premises or elsewhere.
(b) The Collateral Agent shall apply the net proceeds of any action taken
by it pursuant to this
Section 6.5
, after deducting all reasonable and documented out-of-pocket costs and
expenses of the Collateral Agent of every kind incurred in connection
therewith or incidental to the care or safekeeping of any of the Collateral or
in any way relating to the Collateral or the rights of the Secured Parties
hereunder, including reasonable and documented out-of-pocket attorneys' fees
and disbursements to the extent permitted by Section 9.3 of the Credit
Agreement, to the payment in whole or in part of the Obligations in accordance
with
Section 6.4
and only after such application and after the payment by the Collateral Agent
of any other amount required by any provision of Law, including Section
9-615(a) of the New York UCC, need the Collateral Agent account for the
surplus, if any, to the Grantor. If the Collateral Agent sells any of the
Collateral upon credit, the Grantor will be credited only with payments
actually made by the purchaser and received by the Collateral Agent and
applied to Indebtedness of the purchaser. In the event the purchaser fails to
pay for the Collateral, the Collateral Agent may resell the Collateral and the
Grantor shall be credited with proceeds of the sale. To the extent permitted
by applicable Law, the Grantor waives all claims, damages and demands it may
acquire against the Collateral Agent or any Secured Party arising out of the
exercise by each such Person of any rights hereunder.
(c) In view of the position of the Grantor in relation to the Collateral,
or because of other current or future circumstances, a question may arise
under the U.S. Securities Act of 1933, as now or hereafter in effect, or any
similar statute hereafter enacted analogous in purpose or effect (such Act and
any such similar statute as from time to time in effect being called the "
Securities Laws
") with respect to any disposition of the Collateral permitted hereunder. The
Grantor understands that compliance with the Securities Laws might very
strictly limit the course of conduct of the Collateral Agent if the Collateral
Agent were to attempt to dispose of all or any part of the Collateral, and
might also limit the extent to which or the manner in which any subsequent
transferee of any Collateral could dispose of the same. Similarly, there may
be other legal restrictions or limitations affecting the Collateral Agent in
any attempt to dispose of all or part of the Collateral under applicable "blue
sky" or other state securities laws or similar laws analogous in purpose or
effect. The Grantor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the
Collateral, limit the purchasers to those who will agree, among other things,
to acquire such Collateral for their own account, for investment, and not with
a view
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to the distribution or resale thereof. The Grantor acknowledges and agrees
that in light of such restrictions and limitations, the Collateral Agent, in
its sole and absolute discretion (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Collateral
or part thereof shall have been filed under the Securities Laws and (b) may
approach and negotiate with a limited number of potential purchasers
(including a single potential purchaser) to effect such sale. The Grantor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale
without such restrictions. In the event of any such sale, the Collateral Agent
shall incur no responsibility or liability for selling all or any part of the
Collateral at a price that the Collateral Agent, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid
or if more than a limited number of purchasers (or a single purchaser) were
approached. The provisions of this
Section 6.5
will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at
which the Collateral Agent sells.
6.6
Remedies for Intellectual Property
. (a) Upon the occurrence and during the continuance of an Event of Default,
it is agreed that the Collateral Agent shall have the right to take any of or
all of the following actions at the same or different times with respect to
any Collateral consisting of Intellectual Property, on demand, to cause the
security interest granted hereunder to become an assignment, transfer and
conveyance of any of or all such Collateral by the applicable Grantor to the
Collateral Agent, for the benefit of the Secured Parties, or to license or
sublicense, whether general, special or otherwise, and whether on an exclusive
or nonexclusive basis, any such Collateral on such terms and conditions and in
such manner as the Collateral Agent shall determine (other than in violation
of any then-existing licensing arrangements to the extent that waivers cannot
be obtained).
(b) For the purpose of enabling the Collateral Agent to exercise rights and
remedies under this Agreement at such time as the Collateral Agent shall be
lawfully entitled to exercise such rights and remedies, the Grantor hereby
grants to the Collateral Agent an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to the Grantor),
to use, license or sublicense any of the Collateral consisting of Intellectual
Property now owned or hereafter acquired by the Grantor, and wherever the same
may be located, and including in such license access to all media in which any
of the licensed items may be recorded or stored and to all computer software
and programs used for the compilation or printout thereof,
provided
that such license shall automatically terminate upon the Discharge of
Obligations. The use of such license by the Collateral Agent may be exercised,
at the option of the Collateral Agent, only upon the occurrence and during the
continuation of an Event of Default;
provided
,
however
, that any license, sublicense or other transaction entered into by the
Collateral Agent in accordance herewith shall be binding upon the Grantor
notwithstanding any subsequent cure of an Event of Default or the Discharge of
Obligations.
6.7
Waiver; Deficiency
. The Grantor shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by any
Secured Party to collect such deficiency.
SECTION 7. THE COLLATERAL AGENT
7.1
Collateral Agent's Appointment as Attorney-in-Fact, etc.
(a) The Grantor hereby irrevocably appoints the Collateral Agent and any
officer or agent thereof in its capacity as an officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full
power and authority in the place and stead of the Grantor and in the name of
the Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary to accomplish the
purposes of this
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Agreement, and, without limiting the generality of the foregoing, the Grantor
hereby gives the Collateral Agent the power and right, on its behalf, without
notice to or assent by the Grantor, to do any or all of the following:
(i) in the name of the Grantor or its own name, or otherwise, take
possession of and endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of moneys due under any Account
constituting Collateral or with respect to any other Collateral and file any
claim or take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Account or with respect to
any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and
record or have recorded, any and all agreements, instruments, documents and
papers as the Collateral Agent may reasonably request to evidence the Secured
Parties' security interest in such Intellectual Property and the goodwill and
general intangibles of the Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes, assessments, charges, fees, Liens, security
interests or other encumbrances levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of
this Agreement and pay all or any part of the premiums therefor and the costs
thereof;
provided
,
however
, that nothing in this paragraph shall be interpreted as excusing the Grantor
from the performance of, or imposing any obligation on the Collateral Agent or
any Secured Party to cure or perform, any covenants or other promises of the
Grantor with respect to taxes, assessments, charges, fees, Liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Loan Documents;
(iv) execute, in connection with the exercise of any right or remedy
provided for in
Section 6
, any endorsements, assignments or other instruments of conveyance or transfer
with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral
to make payment of any and all moneys due or to become due thereunder directly
to the Collateral Agent or as the Collateral Agent shall direct; (2) ask or
demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect
of or arising out of any Collateral and to give discharges and releases of all
or any of the Collateral; (3) sign and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in connection
with any of the Collateral; (4) send verifications of Accounts to any Account
Debtor; (5) commence and prosecute any suits, actions or proceedings at law or
in equity in any court of competent jurisdiction to collect the Collateral or
any portion thereof and to enforce any other right in respect of any
Collateral; (6) defend any suit, action or proceeding brought against the
Grantor with respect to any Collateral; (7) settle, compromise or adjust any
such suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Collateral Agent may deem appropriate; (8)
assign any Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Trademark pertains and subject to the covenant set
forth in
Section 6.6(b)
) included in the Collateral, throughout the world for such term or terms, on
such conditions, and in such manner, as the Collateral Agent shall in its sole
discretion determine; and (9) generally, sell, transfer, pledge and make any
agreement with respect to, or consent to any use of cash collateral arising in
respect of, or otherwise deal with any of the Collateral as fully and
completely as though the Collateral Agent were the absolute owner thereof for
all purposes, and do, at the Collateral Agent's option and the Grantor's
expense, at any time, or from time to time, all acts and things which the
Collateral Agent reasonably deems necessary to protect, preserve or realize
upon the
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Collateral and the Secured Parties' security interests therein and to effect
the intent of this Agreement, all as fully and effectively as the Grantor
might do.
Anything in this
Section 7.1(a)
to the contrary notwithstanding, the Collateral Agent agrees that, except as
expressly provided in
Section 7.1(b)
, it will not exercise any rights under the power of attorney provided for in
this
Section 7.1(a)
unless an Event of Default shall have occurred and be continuing.
(b) If the Grantor fails to perform or comply with any of its agreements
contained herein, the Collateral Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement;
provided
,
however
, that unless an Event of Default has occurred and is continuing or time is of
the essence, the Collateral Agent shall not exercise this power without first
making written demand on the Grantor and the Grantor failing to comply
therewith within a reasonable period of time after such receipt of such
written demand.
(c) The reasonable and documented out-of-pocket expenses of the Collateral
Agent incurred in connection with actions undertaken as provided in this
Section 7.1
shall be payable by the Grantor to the Collateral Agent on demand.
(d) Each Secured Party, by its authorization of the Collateral Agent's
entering into this Agreement, consents to the exercise by the Collateral Agent
of any power, right or remedy provided for herein. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until the termination of this Agreement.
7.2
Duty of Collateral Agent
. Neither the Collateral Agent nor any other Secured Party nor any of their
respective officers, directors, partners, employees, agents, attorneys and
other advisors, attorneys-in-fact or affiliates shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The
powers conferred on the Secured Parties hereunder are solely to protect the
Secured Parties' interests in the Collateral and shall not impose any duty
upon any Secured Party to exercise any such powers. The Secured Parties shall
be accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers,
directors, partners, employees, agents, attorneys and other advisors,
attorneys-in-fact or affiliates shall be responsible to the Grantor for any
act or failure to act hereunder, except to the extent that any such act or
failure to act is found by a final and unappealable decision of a court of
competent jurisdiction to have resulted directly from their own gross
negligence, bad faith or willful misconduct (including a material breach of
their obligations under the Loan Documents).
7.3
Execution of Financing Statements; Intellectual Property Filings
. (a) The Grantor hereby authorizes the Collateral Agent to file or record
financing or continuation statements, and amendments thereto, and other filing
or recording documents or instruments with respect to the Collateral and the
Assignment in such form and in such offices as the Collateral Agent reasonably
determines appropriate to perfect or maintain the perfection of the security
interests of the Collateral Agent under this Agreement. The Grantor agrees
that such financing statements may describe the Collateral in the same manner
as described in this Agreement or as "all assets" or "all personal property"
of the undersigned, whether now owned or hereafter existing or acquired by the
undersigned or such other description as the Collateral Agent reasonably
determines is necessary or advisable. The Grantor also ratifies its
authorization for the Collateral Agent to file in any relevant jurisdiction
any initial financing statements or amendments thereto if filed prior to the
date hereof.
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(b) The Collateral Agent is authorized to file with the USPTO or the USCO,
as applicable, such documents as may be necessary or advisable for the purpose
of perfecting, confirming, continuing, enforcing or protecting the security
interest in each item of Intellectual Property of the Grantor included in the
Collateral that is subject to registration or an application to register in
the USPTO or the USCO, and naming the Grantor as debtors and the Collateral
Agent as secured party and shall provide written notice to the Grantor prior
to filing any such documents.
7.4
Authority of Collateral Agent
. The Grantor acknowledges that the rights and responsibilities of the
Collateral Agent under this Agreement with respect to any action taken by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
Collateral Agent and the other Secured Parties, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Collateral Agent and the Grantor,
the Collateral Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
7.5
Qualified Counterparties
. No Qualified Counterparty that obtains the benefits of the Security
Documents or any Collateral by virtue of the provisions of the Credit
Agreement or of the Security Documents, shall have any right to notice of any
action or to consent to, direct or object to any action under any Loan
Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and, in
such case, only to the extent expressly provided in the Loan Documents.
SECTION 8. [RESERVED]
SECTION 9. MISCELLANEOUS
9.1
Amendments in Writing
. None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except in accordance with Section 9.2 of
the Credit Agreement;
provided
that the Schedules to this Agreement may be amended or supplemented by the
Grantor at any time by delivering such amended or supplemented schedule to the
Collateral Agent.
9.2
Notices
. All notices, requests and demands to or upon the Collateral Agent or the
Grantor hereunder shall be effected in the manner provided for in Section 9.1
of the Credit Agreement.
9.3
No Waiver by Course of Conduct; Cumulative Remedies
. No Secured Party shall by any act (except by a written instrument pursuant to
Section 9.1
), delay, indulgence, omission or otherwise be deemed to have waived any right
or remedy hereunder or to have acquiesced in any Default or Event of Default.
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by any Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy which such Secured Party would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights
or remedies provided by law.
9.4
Enforcement Expenses; Indemnification
. (a) The Grantor agrees to pay or reimburse each Lender for all its
reasonable and documented out-of-pocket costs and expenses incurred in
enforcing or preserving any rights under this Agreement and the other Loan
Documents to which the Grantor is a party to the extent the Grantor would be
required to do so pursuant to Section 9.3 of the Credit
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Agreement, including the reasonable and documented out-of-pocket fees and
disbursements and other charges of such legal counsel to the Collateral Agent
and the Secured Parties as the Grantor would be required to pay or reimburse
pursuant to Section 9.3 of the Credit Agreement.
(b) Subject to Section 9.3 of the Credit Agreement, the Grantor agrees to
pay, and to hold each Secured Party harmless from, any and all liabilities
with respect to, or resulting from any delay in paying, any and all stamp,
court or documentary, intangible, recording, filing or similar taxes which may
be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement,
in each case, to the extent the Grantor would be required to do so pursuant to
Section 2.16(b) of the Credit Agreement.
(c) The Grantor agrees to pay, and to hold the Lenders and the Collateral
Agent harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable and documented out-of-pocket
costs and expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, in each case, to the extent the Grantor would be required
to do so pursuant to Section 9.3 of the Credit Agreement.
(d) The Grantor agrees that the provisions of Section 9.3(c) and
(d)
of the Credit Agreement are incorporated herein by reference,
mutatis mutandis
.
9.5
Successors and Assigns
. This Agreement shall be binding upon the successors and assigns of the
Grantor and shall inure to the benefit of the Secured Parties and their
successors and assigns;
provided
that the Grantor may not assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Collateral Agent.
9.6
Set-off
. If an Event of Default shall have occurred and be continuing, the Collateral
Agent and each Lender is hereby authorized at any time and from time to time
with the prior written consent of the Collateral Agent (which consent shall
not be required in connection with customary set-offs in connection with Cash
Management Obligations), to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) (excluding any trust, withholding or other fiduciary
account) at any time held and other obligations at any time owing by such
Lender to or for the credit or the account of the applicable Grantor against
any and all obligations of the applicable Grantor now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of the Collateral Agent and each
Lender under this
Section 9.6
are in addition to other rights and remedies (including other rights of
setoff) which the Collateral Agent or such Lender may have. Each Lender shall
notify the Collateral Agent and the Grantor promptly after any such setoff.
Notwithstanding anything to the contrary in the foregoing, no Lender shall
exercise any right of set off in respect of any Controlled Account other than
the Collateral Agent acting in their capacity as such.
9.7
Counterparts
. This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement shall become effective when it shall have been executed by the
Collateral Agent and when the Collateral Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
facsimile or other electronic transmission (
e.g
., "PDF" or "TIFF") shall be effective as delivery of a manually executed
counterpart of this Agreement. The words "execution," "signed," "signature,"
and words of like import in
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this Agreement or in any amendment or other modification hereof (including
waivers and consents) shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state Laws based
on the Uniform Electronic Transactions Act.
9.8
Severability
. Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof;
and the invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction.
9.9
Section Headings
. Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
9.10
Integration
. The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights or remedies
provided by Law or any Loan Document. This Agreement and the other Loan
Documents represent the entire agreement of the Grantor, the Collateral Agent
and the other Secured Parties with respect to the subject matter hereof and
thereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.
9.11
Governing Law
. This Agreement 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 and the transactions contemplated hereby shall be
construed in accordance with and governed by the law of the State of New York.
9.12
Submission to Jurisdiction; Waivers
. (a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding shall be
heard and determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Notwithstanding the foregoing, any Collateral Agent or Lender
may bring an action or proceeding against any Collateral in a jurisdiction
where such Collateral is located.
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
court referred to in
paragraph (a)
of this
Section 9.12
. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
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(c) Each of the parties hereto irrevocably consents to service of process
in the manner provided for notices in
Section 9.2
. Nothing in this Agreement or any other Loan Document will affect the right
of any party to this Agreement to serve process in any other manner permitted
by law.
9.13
Releases
. (a) Upon the Discharge of Obligations, this Agreement and the Liens granted
hereby (including any irrevocable licenses granted to the Collateral Agent
granted hereunder) shall automatically terminate and be released, without the
requirement for any further action by any Person, and the Collateral Agent
shall promptly (and each Secured Party, by its authorization of the Collateral
Agent's entering into this Agreement, hereby authorizes the Collateral Agent
to) take such actions and execute any such documents as may be reasonably
requested by the Grantor and at the Grantor's expense to further document and
evidence such termination and release.
(b) In the event that the Grantor conveys, sells, leases, assigns,
transfers or otherwise Disposes of all or any portion of any of the Capital
Stock or assets of the Grantor to a Person that is not (and is not required to
become) a Grantor hereunder in a transaction permitted under the Credit
Agreement, the Liens created hereunder in respect of such Capital Stock or
assets (including any irrevocable licenses granted to the Collateral Agent
granted hereunder) shall automatically terminate and be released, without the
requirement for any further action by any Person, and the Collateral Agent
shall promptly (and the Secured Parties, by their authorization of the
Collateral Agent's entering into this Agreement, hereby authorize the
Collateral Agent to) take such actions and execute any such documents as may
be reasonably requested by the Grantor and at the Grantor's expense to further
document and evidence such termination and release of Liens hereunder in
respect of such Capital Stock or assets.
(c) All releases or other documents delivered by the Collateral Agent
pursuant to this
Section 9.13
shall be without recourse to, or warranty by, the Collateral Agent.
(d) Except with respect to the exercise of setoff rights of any Lender in
accordance with Section 9.8 of the Credit Agreement or with respect to a
Lender's right to file a proof of claim in an insolvency proceeding, no
Secured Party shall have any right individually to realize upon any of the
Collateral, it being understood and agreed that all powers, rights and
remedies under the Loan Documents with respect to Collateral may be exercised
solely by the Collateral Agent on behalf of the Secured Parties in accordance
with the terms thereof. In the event of a foreclosure by the Collateral Agent
on any of the Collateral pursuant to a public or private sale or other
disposition, the Collateral Agent or any Lender may be the purchaser or
licensor of any or all of such Collateral at any such sale or other
disposition, and the Collateral Agent, as agent for and representative of the
Secured Parties (but not any Lender or Lenders in its or their respective
individual capacities unless the Required Lenders shall otherwise agree in
writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit
on account of the purchase price for any collateral payable by the Collateral
Agent on behalf of the Secured Parties at such sale or other disposition.
9.14
No Fiduciary Duty
. The Grantor agrees that the provisions of Section 9.16 of the Credit
Agreement are incorporated herein by reference,
mutatis mutandis
.
9.15
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR
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OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US-DOCS\148919012.9
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
HE AR BRWR LLC, as Grantor
By:
Name:
Title:
[
Signature Page to Collateral Agreement
]
-------------------------------------------------------------------------------
COLLATERAL AGENT:
BARCLAYS BANK PLC, as Collateral Agent
By:
Name:
Title:
[
Signature Page to Collateral Agreement
]
-------------------------------------------------------------------------------
Schedules to
ABL Collateral Agreement
Schedule 1
Description of Pledged Investment Property
PLEDGED CAPITAL STOCK
None.
PLEDGED DEBT SECURITIES
None.
PLEDGED NOTES
None.
US-DOCS\148919012.9
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Schedules to
ABL Collateral Agreement
Schedule 2
Filings and Other Actions Required to Perfect Security Interests
Type of Filing Entity Applicable Jurisdictions
Collateral Document
Mortgage, Security
Agreement or Other
UCC-1 Financing HE AR BRWR LLC ABL Collateral Agreement Delaware
US-DOCS\148919012.9
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Schedules to
ABL Collateral Agreement
Schedule 3
Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive
Office
Name Chief Executive Office Jurisdiction Tax ID Organizational Numbers
Number
HE AR BRWR LLC 1099 Alakea Street, Suite 2200, Honolulu, Hawaii Delaware EIN: 99- 3307698
96813 2548893
US-DOCS\148919012.9
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Schedules to
ABL Collateral Agreement
Schedule 4
Commercial Tort Claims
None.
US-DOCS\148919012.9
-------------------------------------------------------------------------------
Schedules to
ABL Collateral Agreement
Schedule 5
Intellectual Property
None.
US-DOCS\148919012.9
-------------------------------------------------------------------------------
EXHIBIT A-2
to the ABL
Credit Agreement
[FORM OF]
INTERMEDIATE COLLATERAL AGREEMENT
[ATTACHED]
A-2
US-DOCS\149007241.10
-------------------------------------------------------------------------------
Execution Version
________________________________________________________________________________
____
COLLATERAL AGREEMENT
dated as of
May 17, 2024,
by
HE AR INTER LLC,
as Grantor
in favor of
BARCLAYS BANK PLC,
as Collateral Agent
________________________________________________________________________________
____
US-DOCS\148935905.18
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TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS 1
1.1 Definitions 1
1.2 Other Definitional Provisions 2
SECTION 2. [RESERVED] 2
SECTION 3. GRANT OF SECURITY INTEREST 2
SECTION 4. REPRESENTATIONS AND WARRANTIES 3
4.1 Title; No Other Liens 3
4.2 Perfected First Priority Liens 3
4.3 Name; Jurisdiction of Organization, etc. 4
4.4 [Reserved] 4
4.5 [Reserved] 4
4.6 Deposit Accounts 4
4.7 Organization and Good Standing 4
4.8 Due Qualification 4
4.9 Power and Authority; Due Authorization 4
4.10 Binding Obligations 5
4.11 No Conflict or Violation 5
4.12 Litigation and Other Proceedings 5
4.13 No Consents 5
4.14 Taxes 5
SECTION 5. COVENANTS 5
5.1 [Reserved] 5
5.2 Maintenance of Perfected Security Interest; Further Documentation 6
5.3 Changes in Locations, Name, Jurisdiction of Incorporation, etc. 6
5.4 Payment of Taxes; Tax Status 6
SECTION 6. REMEDIAL PROVISIONS 7
6.1 [Reserved] 7
6.2 [Reserved] 7
6.3 Proceeds to be Turned Over to the Collateral Agent 7
6.4 Application of Proceeds 7
6.5 Code and Other Remedies 7
6.6 Waivers 10
6.7 Deficiency 11
SECTION 7. THE COLLATERAL AGENT 11
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc. 11
7.2 Duty of Collateral Agent 13
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US-DOCS\148935905.18
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7.3 Execution of Financing Statements 13
7.4 Authority of Collateral Agent 13
SECTION 8. [RESERVED] 13
SECTION 9. MISCELLANEOUS 13
9.1 Amendments in Writing 13
9.2 Notices 14
9.3 No Waiver by Course of Conduct; Cumulative Remedies 14
9.4 Enforcement Expenses; Indemnification 15
9.5 Successors and Assigns 15
9.6 [Reserved] 15
9.7 Counterparts 15
9.8 Severability 15
9.9 Section Headings 16
9.10 Integration 16
9.11 Governing Law 16
9.12 Submission to Jurisdiction; Waivers 16
9.13 Releases 16
9.14 No Fiduciary Duty 16
9.15 No Proceeding, Limited Recourse 16
9.16 WAIVER OF JURY TRIAL 17
9.17 Process Agent 17
SCHEDULES
Schedule 1 Description of Intermediate Accounts
Schedule 2 Filings and Other Actions Required to Perfect Security Interests
Schedule 3 Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office
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US-DOCS\148935905.18
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COLLATERAL AGREEMENT, dated as of May 17, 2024 (as amended, restated, amended
and restated, supplemented or otherwise modified from time to time, this "
Agreement
") made by HE AR INTER LLC, a Delaware limited liability company (the "
Grantor
") in favor of BARCLAYS BANK PLC, as collateral agent (together with its
successors and permitted assigns in such capacity, the "
Collateral Agent
") for the benefit of (a) the Lenders from time to time parties to the ABL
Credit Agreement, dated as of the date hereof (as amended, restated, amended
and restated, supplemented, refinanced or otherwise modified from time to
time, the "
ABL Credit Agreement
"), among HE AR BRWR LLC, a Delaware limited liability company (the "
Borrower
"), the Collateral Agent, the several banks and other financial institutions
from time to time parties thereto as Lenders and Agents, and (b) the other CA
Secured Parties (as hereinafter defined).
WITNESSETH
:
WHEREAS, the Grantor and the Borrower are a party to that certain Purchase and
Contribution Agreement, dated as of the date hereof (the "
Borrower Purchase Agreement
"), pursuant to which the Grantor has agreed to sell certain accounts
receivable to the Borrower.
NOW, THEREFORE, in consideration of the above premises the parties hereto
hereby agree as follows:
SECTION 1. DEFINED TERMS
1.1
Definitions
. (a) Unless otherwise defined herein, terms defined in the ABL Credit
Agreement and used herein shall have the meanings given to them in the ABL
Credit Agreement;
provided
that each term defined in the New York UCC and not defined in this Agreement
shall have the meaning specified in the New York UCC.
(b) The following terms shall have the following meanings:
"
ABL Credit Agreement
": as defined in the preamble hereto.
"
ABL Collateral Agreement
": as defined in the recitals hereto.
"
Agreement
": as defined in the preamble hereto.
"
Applicable Date
": the Closing Date, the Purchase Agreement Effective Date (as defined in the
Borrower Purchase Agreement) and each Sale Date (as defined in the Borrower
Purchase Agreement).
"
Borrower
": as defined in the preamble hereto.
"
Borrower Purchase Agreement
": as defined in the recitals hereto.
"
CA Secured Parties
": the "Secured Parties" as defined in the ABL Credit Agreement.
"
Closing Date
": the date of this Agreement.
"
Collateral
": as defined in
Section 3(a)
.
"
Collateral Account
": any collateral deposit account established by the Collateral Agent to hold
cash pending application to the Secured Obligations.
"
Collateral Agent
": as defined in the preamble hereto.
US-DOCS\148935905.18
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"
Discharge of Obligations
": shall have occurred when (a) all obligations of the Grantor under the
Borrower Purchase Agreement have been performed, satisfied or paid in full in
cash (other than contingent obligations as to which no claim has been
asserted) and (b) the Borrower Purchase Agreement has been terminated. "
Discharged
" shall have a correlative meaning.
"
Excluded Amounts
": taxes and other amounts collected by any Originator for others (including
payments to the Public Benefit Fund and Green Infrastructure fees (GEMS)) as
listed in reasonably satisfactory detail on a certificate of a responsible
officer of the Servicer (as updated and delivered to the Administrative Agent
from time to time).
"
Grantor
": as defined in the preamble hereto.
"
Grantor Material Adverse Effect
": as defined in
Section 4.8
.
"
Intermediate Accounts
": all Deposit Accounts of the Grantor described on
Schedule 1
(as such schedule may be amended from time to time).
"
Intermediate Purchase Agreement
": that Purchase and Contribution Agreement, dated as of the date hereof,
among Grantor, Hawaiian Electric Company, Inc., Maui Electric Company, Limited
and Hawaii Electric Light Company, Inc.
"
New York UCC
": the Uniform Commercial Code as from time to time in effect in the State of
New York.
"
Proceeds
": all "proceeds" as such term is defined in
Section 9-102(a)(64)
of the New York UCC.
"
Secured Obligations
": as defined in
Section 3(a)
.
"
UCC
" or "
Uniform Commercial Code
": the New York UCC or, where the context requires, the Uniform Commercial
Code or any equivalent statute of any other relevant jurisdiction.
1.2
Other Definitional Provisions
. (a) Except as otherwise expressly set forth herein, the rules of
construction specified under the heading "Definitions" in the Borrower
Purchase Agreement and, to the extent not contrary to the Borrower Purchase
Agreement, in Section 1.2 of the ABL Credit Agreement are incorporated herein
by reference
mutatis mutandis
.
(b) Where the context requires, terms relating to the Collateral or any
part thereof, when used in relation to the Grantor, shall refer to the
Grantor's Collateral or the relevant part thereof.
(c) All references herein to provisions of the UCC shall include all
successor provisions under any subsequent version or amendment to any Article
of the UCC.
SECTION 2. [RESERVED]
SECTION 3. GRANT OF SECURITY INTEREST
(a) The Grantor hereby grants and collaterally assigns and transfers to the
Collateral Agent, for the benefit of the Secured Parties, a security interest
in, all of its right, title and interest in and to all of the following
personal property, in each case, wherever located and whether now owned or at
any time hereafter acquired by the Grantor or in which the Grantor now has or
at any time in the future may
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US-DOCS\148935905.18
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acquire any right, title or interest (collectively, the "
Collateral
"), as collateral security for the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or otherwise) of the
Grantor's obligations under the Borrower Purchase Agreement and the
Intermediate Purchase Agreement (the "
Secured Obligations
"), in light of the further grant of security from the Borrower to the
Collateral Agent in its rights thereunder:
(i) the Intermediate Accounts and all cash and cash equivalents in deposit
thereof (except for Excluded Amounts);
(ii) to the extent not otherwise included, all rights of any nature
whatsoever in respect of the foregoing;
(iii) all of the Grantor's rights, title and interest in and to the
Intermediate Purchase Agreement; and
(iv) any and all Proceeds of the foregoing.
(b) Notwithstanding anything to the contrary in the Loan Documents, the
Grantor shall not be required pursuant to this Agreement, to take any action
to perfect the security interests granted by this Agreement by any means other
than by (1) filings pursuant to the UCC in the office of the Secretary of
State (or similar central filing office) of the relevant State or elsewhere as
required by the UCC and (2) entry into Cash Management Control Agreements or
otherwise deliver evidence of perfection by "control" (within the meaning of
the UCC) with respect to the Intermediate Accounts.
(c) Notwithstanding anything herein to the contrary, (i) the Grantor shall
remain liable for all of its obligations in respect of the Collateral
(including any agreement included therein) and nothing contained herein is
intended or shall be a delegation of duties to the Collateral Agent or any
other Secured Party, (ii) the Grantor agrees to indemnify and hold harmless
the Collateral Agent and the Secured Parties from and against any and all
liability resulting from Grantor's failure to perform its obligations or
otherwise default under any or each contract, agreement or instrument to which
it is a party relating to the Collateral (but shall be liable only to the
extent of funds available to it, including any indemnity proceeds paid to the
Grantor), (iii) neither the Collateral Agent nor any other Person shall have
any obligation or liability under any of Grantor's agreements or any
obligation or liability under any other Collateral by reason of or arising out
of this Agreement nor shall the Collateral Agent nor any other Secured Party
have any obligation to make any inquiry as to the nature or sufficiency of any
payment received by it or have any obligation to take any action to collect or
enforce any rights under any agreement included in the Collateral and (iv) the
exercise by the Collateral Agent of any of its rights hereunder shall not
release the Grantor from any of its duties or obligations under the contracts
and agreements included in the Collateral.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Grantor hereby represents and warrants to the Collateral Agent that:
4.1
Title; No Other Liens
. It owns each item of the Collateral free and clear of any and all Liens
except for Permitted Liens. No effective financing statement, fixture filing
or other public notice under applicable Law with respect to all or any part of
the Collateral is on file or of record in any public office, except those as
have been filed in favor of the Collateral Agent, for the benefit of the
Secured Parties, pursuant to this Agreement or the other Loan Documents or as
otherwise permitted herein.
4.2
Perfected First Priority Liens
. The security interests granted pursuant to this Agreement constitute legal,
valid, binding and enforceable and, subject to any Permitted Liens, first lien
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US-DOCS\148935905.18
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security interests in all of the Collateral in favor of the Collateral Agent,
for the benefit of the Secured Parties, as collateral security for the Secured
Obligations, enforceable against the Grantor in accordance with the terms
hereof, except as enforceability may be limited by applicable Debtor Relief
Laws and by general equitable principles (whether enforcement is sought in
proceedings in equity or at law) and, when financing statements in appropriate
form are filed in the appropriate filing offices as specified on
Schedule 2
, and such other actions specified in
Section 5.2
have been completed and upon the payment of all filing fees, will be perfected
(to the extent that perfection therein may be achieved by the foregoing
actions) and will be prior to the Liens on the Collateral of any other Person
(except for Permitted Liens).
4.3
Name; Jurisdiction of Organization, etc.
As of the Applicable Date, its exact legal name (as indicated on the public
record of its jurisdiction of formation or organization), jurisdiction of
organization, organizational identification number, if any, and the location
of its chief executive office or sole place of business, as the case may be,
are specified on
Schedule 3
(as such schedule may be amended from time to time). Except as specified on
Schedule 3
(as such schedule may be amended from time to time), the Grantor has not
changed its name, jurisdiction of organization, chief executive office or sole
place of business (as the case may be) within the five year period immediately
prior to the Closing Date.
4.4
[Reserved]
.
4.5
[Reserved]
.
4.6
Deposit Accounts
. As of the Applicable Date, the Intermediate Accounts are Controlled Accounts.
4.7
Organization and Good Standing
. The Grantor is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization or formation, with the power
and authority under its Organization Documents and under the laws of the
jurisdiction of its organization or formation to own its properties and to
conduct its business as such properties are currently owned and such business
is presently conducted.
4.8
Due Qualification
. The Grantor is duly qualified to do business, is in good standing and has
obtained all necessary licenses and approvals in all jurisdictions in which
the conduct of its business requires such qualification, licenses or
approvals, except where the failure to do so could not reasonably be expected
to have a material adverse effect on (i) the Collateral pledged hereunder,
(ii) the ability of the Grantor to perform its obligations under this
Agreement and any other Loan Document to which the Grantor is a party; or
(iii) the material rights and remedies of the Collateral Agent under this
Agreement and the other Loan Documents to which the Grantor is a party,
including the legality, validity, binding effect or enforceability of this
Agreement and the other Loan Documents to which the Grantor is a party (a "
Grantor Material Adverse Effect
").
4.9
Power and Authority; Due Authorization
. The Grantor (i) has all necessary power and authority to (A) execute and
deliver this Agreement and the other Loan Documents to which it is a party,
(B) perform its obligations under this Agreement and the other Loan Documents
to which it is a party and the execution, delivery and performance of, and the
consummation of the transactions provided for in, this Agreement and the other
Loan Documents to which it is a party have been duly authorized by the Grantor
by all necessary action and (C) grant a security interest in Collateral on the
terms and subject to the conditions provided herein and (ii) has duly
authorized by all necessary action such grant and the execution, delivery and
performance of, and the consummation of the transactions provided for in, this
Agreement and the other Loan Documents to which it is a party.
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4.10
Binding Obligations
. This Agreement and each of the other Loan Documents to which it is a party
constitutes legal, valid and binding obligations of the Grantor, enforceable
against the Grantor in accordance with their respective terms, except (i) as
such enforceability may be limited by applicable Debtor Relief Laws and (ii)
as such enforceability may be limited by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
4.11
No Conflict or Violation
. The execution and delivery of this Agreement and each other Loan Document to
which the Grantor is a party, the performance of the transactions contemplated
by this Agreement and the other Loan Documents to which it is a party and the
fulfillment of the terms of this Agreement and the other Loan Documents to
which it is a party by it will not (i) conflict with, result in any breach of
any of the terms or provisions of, or constitute (with or without notice or
lapse of time or both) a default under (x) its Organization Documents or (y)
any indenture, sale agreement, credit agreement, loan agreement, security
agreement, mortgage, deed of trust or other agreement or instrument to which
it is a party or by which it or any of its property is bound, (ii) result in
the creation or imposition of any Adverse Claim upon any of its properties
pursuant to the terms of any such indenture, credit agreement, loan agreement,
security agreement, mortgage, deed of trust or other agreement or instrument,
other than this Agreement and the other Loan Documents or (iii) conflict with
or violate any applicable Law, except in the case of
subclauses (i)(y)
,
(ii)
and
(iii)
, to the extent that any such conflict, breach, default, Adverse Claim or
violation could not reasonably be expected to have a Grantor Material Adverse
Effect.
4.12
Litigation and Other Proceedings
. There is no action, suit, proceeding or investigation pending, or to its
knowledge threatened, against the Grantor before any Governmental Authority:
(i) asserting the invalidity of this Agreement or any of the other Loan
Documents, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other Loan Document or (iii) seeking any
determination or ruling that could materially and adversely affect the
performance by it of its obligations under, or the validity or enforceability
of, this Agreement or any of the other Loan Documents.
4.13
No Consents
. The Grantor is not required to obtain the consent of any other party or any
consent, license, approval, registration, authorization or declaration of or
with any Governmental Authority in connection with the execution, delivery, or
performance of this Agreement or any other Loan Document (other than the PUC
Initial Order and the PUC Final Order) to which it is a party that has not
already been obtained or the failure of which to obtain could not reasonably
be expected to have a Grantor Material Adverse Effect.
4.14
Taxes
. Except as would not, either individually or in the aggregate, reasonably be
expected to result in a Grantor Material Adverse Effect, the Grantor has
timely filed all tax returns required to have been filed, and has paid all
Taxes levied or imposed upon it or its properties, income, profits or assets,
that are due and payable, in each case including in its capacity as a
withholding agent, except those which are being contested in good faith by
appropriate proceedings as to which no Collateral would become subject to
forfeiture or loss as a result of such contest and for which adequate reserves
have been provided in accordance with GAAP. The Grantor is (x) a wholly-owned
direct subsidiary of a US Person that is a corporation for US federal income
tax purposes and (y) a "disregarded entity" within the meaning of US Treasury
Regulation (s) 301.7701-3 for US federal income tax purposes.
SECTION 5. COVENANTS
The Grantor covenants and agrees with the Collateral Agent that, until the
Discharge of Obligations:
5.1
[Reserved]
.
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5.2
Maintenance of Perfected Security Interest; Further Documentation
. (a) Subject to
Section 3(b)
hereof, the Grantor shall maintain the security interest created by this
Agreement on the Collateral as a perfected security interest having at least
the priority described in
Section 4.2
, shall cause such Collateral to remain free of Liens other than Permitted
Liens, and shall use commercially reasonable efforts to defend such security
interest against the claims and demands of all Persons whomsoever (other than
Permitted Liens).
(b) The Grantor agrees to maintain or cause to be maintained, at its own
cost and expense, complete and accurate records in all material respects with
respect to the Collateral owned by it, in any event to include complete
accounting records in all respects with respect to all payments and proceeds
received with respect to any part of the Collateral, and, at such time or
times as the Collateral Agent may reasonably request, promptly to prepare and
deliver to the Collateral Agent a duly certified schedule or schedules in form
and detail reasonably satisfactory to the Collateral Agent showing the
identity, amount and location of any Collateral.
(c) Subject to
Section 3(b)
hereof, at any time and from time to time, upon the written request of the
Collateral Agent, and at the sole expense of the Grantor, the Grantor will
promptly and duly authorize, execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Collateral Agent may reasonably request to better assure, preserve, protect
and perfect the security interests granted hereby, the full benefits of this
Agreement and the rights and powers herein granted, including (i) subject to
Section 10.1 of the Borrower Purchase Agreement, the payment of any fees and
taxes required in connection with the execution and delivery of this Agreement
and the granting and perfecting of the security interests, (ii) the filing of
any financing or continuation statements under the Uniform Commercial Code in
effect in any applicable jurisdiction within the United States and (iii) in
the case of the Intermediate Accounts and any other relevant Collateral,
taking any actions necessary to enable the Collateral Agent to obtain
"control" with respect thereto, including without limitation the entry into
Cash Management Control Agreements meeting the requirements of Section 2.21 of
the ABL Credit Agreement. The Grantor will provide (or cause to be provided)
to the Collateral Agent from time to time upon reasonable request, evidence
reasonably satisfactory to the Collateral Agent as to the perfection (to the
extent required by this Agreement) and priority of the Lien created or
intended to be created pursuant to this Agreement.
5.3
Changes in Locations, Name, Jurisdiction of Incorporation, etc.
If the Grantor (i) changes its jurisdiction of organization or the location of
its chief executive office from that referred to on
Schedule 3
(as such schedule may be amended from time to time), (ii) changes its legal
name or (iii) changes its type of organization, the Grantor shall provide
written notice to the Collateral Agent within ten Business Days after any such
change and, substantially concurrently with such written notice (or within
such other period as is reasonably acceptable to the Collateral Agent), shall
deliver to the Collateral Agent all additional financing statements and any
other documents necessary to maintain the validity, perfection and priority of
the security interests in the Collateral provided for herein, subject to
Section 3(b)
of this Agreement.
5.4
Payment of Taxes; Tax Status
. Except as would not, either individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, the Grantor has timely filed
(or validly extended) or caused to be filed (or validly extended), and will
timely file (or validly extend) all material Tax returns and reports required
by Applicable Law to have been filed by it and has paid or caused to be paid
all Taxes required to be paid by it, except (i) any Taxes that are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP have been established or (ii) to the extent
that the failure to do so would not reasonably be expected to have a Grantor
Material Adverse Effect. The Grantor is and shall remain (x) a wholly-owned
direct subsidiary of a US Person that
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US-DOCS\148935905.18
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is a corporation for US federal income tax purposes and (y) a "disregarded
entity" within the meaning of US Treasury Regulation (s) 301.7701-3 for US
federal income tax purposes.
SECTION 6. REMEDIAL PROVISIONS
6.1
[Reserved]
.
6.2
[Reserved]
.
6.3
Proceeds to be Turned Over to the Collateral Agent
. If an Event of Default under the ABL Credit Agreement (including a "Purchase
and Contribution Termination Event" under the Borrower Purchase Agreement)
shall occur and be continuing, at the written request of the Collateral Agent,
all Proceeds of Collateral received by the Grantor consisting of cash, Cash
Equivalents and checks shall forthwith upon receipt by the Grantor, be turned
over to the Collateral Agent in the exact form received by the Grantor (duly
endorsed by the Grantor to the Collateral Agent, if reasonably required). All
such Proceeds of Collateral received by the Collateral Agent under this
Section 6.3
shall be held by the Collateral Agent in a Collateral Account maintained under
its control (as defined in and subject to Section 9-104 of the New York UCC).
All such Proceeds while held by the Collateral Agent in a Collateral Account
(or by the Grantor for the Secured Parties) shall, at the election of the
Collateral Agent, be held as collateral security for all Secured Obligations
and shall not constitute payment thereof until applied.
6.4
Application of Proceeds
. (a) If an Event of Default under the ABL Credit Agreement (including a
"Purchase and Contribution Termination Event" under the Borrower Purchase
Agreement) shall have occurred and be continuing, at any time at the
Collateral Agent's election, the Collateral Agent may apply all or any part of
the net Proceeds (after deducting out-of-pocket fees and expenses as provided
in
Section 6.5
below) of Collateral realized through the exercise by the Collateral Agent of
its remedies hereunder, whether or not held in any Collateral Account in
payment of the Secured Obligations.
(b) The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of proceeds in the amount agreed upon by the
Collateral Agent or by the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of
any part of the purchase money paid over to the Collateral Agent or such
officer or be answerable in any way for the misapplication thereof.
6.5
Code and Other Remedies
. (a) Upon (i) the occurrence and during the continuance of an Event of
Default under the ABL Credit Agreement (including a "Purchase and Contribution
Termination Event" under the Borrower Purchase Agreement), and (ii) the
Collateral Agent's notice of its intent to exercise such rights to the
Grantor, the Grantor agrees to deliver each item of Collateral to the
Collateral Agent promptly after written demand therefor, and it is agreed that
the Collateral Agent, on behalf of the Secured Parties, may exercise, in
addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing or relating to
the Secured Obligations, all rights and remedies of a secured party under the
New York UCC (whether or not the New York UCC applies to the affected
Collateral) and all rights under any other applicable Law or in equity.
Without limiting the generality of the foregoing, the Collateral Agent,
without demand of performance or other demand, defense, presentment, protest,
advertisement or notice of any kind (except any notice required by Law
referred to below) to or upon the Grantor or any other Person (all and each of
which demands, presentments, protests, defenses (other than the defense of
payment or performance or the
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Discharge of Obligations), advertisements and notices are hereby waived to the
extent permitted by applicable Law), may in such circumstances forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, or consent to the use by the Grantor of any cash collateral arising
in respect of the Collateral on such terms as the Collateral Agent deems
reasonable, and/or may forthwith sell, lease, license, assign, give option or
options to purchase, or otherwise dispose of and deliver, or acquire by credit
bid on behalf of the Secured Parties, the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange, broker's board or office of any
Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk, it being understood
that any sale pursuant to the provisions of this
Section 6.5
shall be deemed to conform to the commercially reasonable standards under the
UCC with respect to any disposition of Collateral. Each Secured Party shall
have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole
or any part of the Collateral so sold, free of any right or equity of
redemption in the Grantor, which right or equity is hereby waived and
released. To the fullest extent permitted by applicable Law, each purchaser at
any such sale shall hold the property sold to it absolutely free from any
claim or right on the part of the Grantor, and the Grantor hereby waives (to
the extent permitted by applicable Law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any Law
now existing or hereafter enacted. The Grantor agrees that, to the extent
notice of sale shall be required by Law, at least ten days' notice to the
Grantor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Collateral Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. The Collateral Agent
may sell the Collateral without giving any warranties as to the Collateral.
The Collateral Agent may specifically disclaim or modify any warranties of
title or the like. To the fullest extent permitted by applicable Law, this
procedure will not be considered to adversely affect the commercial
reasonableness of any sale of the Collateral. The Grantor agrees that it would
not be commercially unreasonable for the Collateral Agent to dispose of the
Collateral or any portion thereof by using Internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capability of doing so, or that match buyers and sellers of assets.
Each such purchaser at any such sale shall hold the property sold absolutely
free from any claim or right on the part of the Grantor, and the Grantor
hereby waives (to the extent permitted by Law) all rights of redemption, stay
and appraisal which the Grantor now has or may at any time in the future have
under any Law now existing or hereafter enacted. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent
may proceed by a suit or suits at law or in equity to foreclose this Agreement
and to sell the Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver. In the event of a foreclosure by the
Collateral Agent on any of the Collateral pursuant to a public or private sale
or other disposition, the Collateral Agent or any lender thereof may be the
purchaser or licensor of any or all of such Collateral at any such sale or
other disposition, and the Collateral Agent at the direction of the Required
Lenders, as agent for and representative of the Secured Parties (but not any
Lender or Lenders in its or their respective individual capacities unless the
Required Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any Collateral payable by the Collateral Agent on behalf of the Secured
Parties at such sale or other disposition. For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated
as a sale thereof and the Collateral Agent shall be free to carry out such
sale pursuant to such agreement and the Grantor shall not be entitled to the
return of the Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations
Discharged. To the extent permitted by applicable Law, the Grantor waives all
claims, damages and
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demands it may acquire against the Collateral Agent or any Secured Party
arising out of the exercise by them of any of their rights hereunder. The
Grantor further agrees, at the Collateral Agent's reasonable request, if an
Event of Default under the ABL Credit Agreement (including a "Purchase and
Contribution Termination Event" under the Borrower Purchase Agreement) has
occurred and is continuing, to assemble the Collateral and make it available
to the Collateral Agent at places which the Collateral Agent shall reasonably
select, whether at the Grantor's premises or elsewhere.
(b) The Collateral Agent shall apply the net proceeds of any action taken
by it pursuant to this
Section 6.5
, after deducting all reasonable and documented out-of-pocket costs and
expenses of the Collateral Agent of every kind incurred in connection
therewith or incidental to the care or safekeeping of any of the Collateral or
in any way relating to the Collateral or the rights of the Secured Parties
hereunder, including reasonable and documented out-of-pocket attorneys' fees
and disbursements to the extent permitted by Section 10.1 of the Borrower
Purchase Agreement, to the payment in whole or in part of the Secured
Obligations in accordance with
Section 6.4
and only after such application and after the payment by the Collateral Agent
of any other amount required by any provision of Law, including Section
9-615(a) of the New York UCC, need the Collateral Agent account for the
surplus, if any, to the Grantor. If the Collateral Agent sells any of the
Collateral upon credit, the Grantor will be credited only with payments
actually made by the purchaser and received by the Collateral Agent and
applied to Indebtedness of the purchaser. In the event the purchaser fails to
pay for the Collateral, the Collateral Agent may resell the Collateral and the
Grantor shall be credited with proceeds of the sale. To the extent permitted
by applicable Law, the Grantor waives all claims, damages and demands it may
acquire against the Collateral Agent or any other Secured Party arising out of
the exercise by each such Person of any rights hereunder.
(c) In view of the position of the Grantor in relation to the Collateral,
or because of other current or future circumstances, a question may arise
under the U.S. Securities Act of 1933, as now or hereafter in effect, or any
similar statute hereafter enacted analogous in purpose or effect (such Act and
any such similar statute as from time to time in effect being called the "
Securities Laws
") with respect to any disposition of the Collateral permitted hereunder. The
Grantor understands that compliance with the Securities Laws might very
strictly limit the course of conduct of the Collateral Agent if the Collateral
Agent were to attempt to dispose of all or any part of the Collateral, and
might also limit the extent to which or the manner in which any subsequent
transferee of any Collateral could dispose of the same. Similarly, there may
be other legal restrictions or limitations affecting the Collateral Agent in
any attempt to dispose of all or part of the Collateral under applicable "blue
sky" or other state securities laws or similar laws analogous in purpose or
effect. The Grantor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the
Collateral, limit the purchasers to those who will agree, among other things,
to acquire such Collateral for their own account, for investment, and not with
a view to the distribution or resale thereof. The Grantor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral
Agent, in its sole and absolute discretion (a) may proceed to make such a sale
whether or not a registration statement for the purpose of registering such
Collateral or part thereof shall have been filed under the Securities Laws and
(b) may approach and negotiate with a limited number of potential purchasers
(including a single potential purchaser) to effect such sale. The Grantor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale
without such restrictions. In the event of any such sale, the Collateral Agent
shall incur no responsibility or liability for selling all or any part of the
Collateral at a price that the Collateral Agent, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid
or if more than a limited number of purchasers (or a single purchaser) were
approached. The provisions of this
Section 6.5
will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at
which the Collateral Agent sells.
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6.6
Waivers
. (a) All rights of Collateral Agent hereunder, and all obligations of the
Grantor hereunder, shall be absolute and unconditional irrespective of, shall
not be affected by, and shall remain in full force and effect without regard
to, and the Grantor hereby waives all, rights, claims or defenses that it
might otherwise have (now or in the future) with respect to, each of the
following (whether or not the Grantor has knowledge thereof):
(i) the validity or enforceability of the ABL Credit Agreement, the
Borrower Purchase Agreement or any other Loan Document, any of the obligations
thereunder, or any right of offset with respect thereto at any time or from
time to time held by any party thereto;
(ii) any renewal, extension or acceleration of, or any increase in the
amount of the obligations under the ABL Credit Agreement, the Borrower
Purchase Agreement or any other Loan Document, or any amendment, supplement,
modification or waiver of, or any consent to departure from, any of the
foregoing;
(iii) any failure or omission to assert or enforce or agreement or election
not to assert or enforce, delay in enforcement, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether
arising under the ABL Credit Agreement, the Borrower Purchase Agreement or any
other Loan Document, at law, in equity or otherwise) with respect to the
obligations under the ABL Credit Agreement, the Borrower Purchase Agreement or
any other Loan Document or any agreement relating thereto, or with respect to
any other security for the payment of such obligations;
(iv) any change, reorganization or termination of the corporate structure
or existence of the Grantor or its Affiliates, and any corresponding
restructuring of the obligations under the ABL Credit Agreement, the Borrower
Purchase Agreement or any other Loan Document;
(v) any settlement, compromise, release, or discharge of, or acceptance or
refusal of any offer of payment or performance with respect to, or any
substitutions for, the obligations under the ABL Credit Agreement, the
Borrower Purchase Agreement or any other Loan Document or any subordination of
the obligations under the ABL Credit Agreement, the Borrower Purchase
Agreement or any other Loan Document to any other obligations;
(vi) the validity, perfection, non-perfection or lapse in perfection,
priority or avoidance of any security interest or Lien, the release of any or
all collateral securing, or purporting to secure, the obligations under the
ABL Credit Agreement, the Borrower Purchase Agreement or any other Loan
Document or any other impairment of such collateral;
(vii) any exercise of remedies with respect to any security for the
obligations under the ABL Credit Agreement, the Borrower Purchase Agreement or
any other Loan Document(including, without limitation, any collateral,
including the Collateral securing or purporting to secure any of the
obligations under the ABL Credit Agreement, the Borrower Purchase Agreement or
any other Loan Document) at such time and in such order and in such manner as
the Collateral Agent and the Secured Parties may decide and whether or not
every aspect thereof is commercially reasonable and whether or not such action
constitutes an election of remedies and even if such action operates to impair
or extinguish any right of reimbursement or subrogation or other right or
remedy that the Grantor would otherwise have and without limiting the
generality of the foregoing or any other provisions hereof, the Grantor hereby
expressly waives any and all benefits which might otherwise be available to
such Grantor under applicable Law; and
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(viii) any other circumstance whatsoever which may or might in any manner
or to any extent vary the risk of the Grantor as an obligor in respect of the
obligations under the ABL Credit Agreement, the Borrower Purchase Agreement or
any other Loan Document or which constitutes, or might be construed to
constitute, an equitable or legal discharge of the applicable debtor for the
obligations under the ABL Credit Agreement, the Borrower Purchase Agreement or
any other Loan Document, or of any security interest granted by the applicable
debtor, whether in a Bankruptcy Event or in any other instance.
(b) In addition the Grantor further waives any and all other defenses,
set-offs or counterclaims (other than the defense of payment or performance or
the Discharge of Obligations) which may at any time be available to or be
asserted by it, the Borrower or any other Person against any Secured Party,
including, without limitation, failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction and usury.
(c) The Grantor waives diligence, presentment, protest, marshaling, demand
for payment, notice of dishonor, notice of default and notice of nonpayment to
or upon itself. Except for notices provided for herein, the Grantor hereby
waives notice (to the extent permitted by Law) of any kind in connection with
this Agreement or any collateral securing the Secured Obligations, including,
without limitation, the Collateral. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against the Grantor, the
Collateral Agent may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
any Person or against any collateral security for the Secured Obligations or
any right of offset with respect thereto, and any failure by the Collateral
Agent to make any such demand, to pursue such other rights or remedies or to
collect any payments from any Person or to realize upon any such collateral
security or to exercise any such right of offset, or any release of any Person
or any such collateral security or right of offset, shall not relieve the
Grantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Collateral Agent against the Grantor. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
6.7
Deficiency
. The Grantor shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to pay the
Secured Obligations and the fees and disbursements of any attorneys employed
by the Collateral Agent to collect such deficiency.
SECTION 7. THE COLLATERAL AGENT
7.1
Collateral Agent's Appointment as Attorney-in-Fact, etc.
(a) The Grantor hereby irrevocably appoints the Collateral Agent and any
officer or agent thereof in its capacity as an officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full
power and authority in the place and stead of the Grantor and in the name of
the Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, the Grantor hereby gives the Collateral Agent the power and right,
on its behalf, without notice to or assent by the Grantor, to do any or all of
the following:
(i) in the name of the Grantor or its own name, or otherwise, take
possession of and endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of money due constituting Collateral or
with respect to any other Collateral and file any claim or take any other
action or proceeding in any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose of collecting any and all
such moneys due or with respect to any other Collateral whenever payable;
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(ii) [reserved];
(iii) pay or discharge taxes, assessments, charges, fees, Liens, security
interests or other encumbrances levied or placed on or threatened against the
Collateral, effect any repairs or any insurance, and pay all or any part of
the premiums therefor and the costs thereof;
provided
,
however
,
that nothing in this paragraph shall be interpreted as excusing the Grantor
from the performance of, or imposing any obligation on the Collateral Agent or
any Secured Party to cure or perform, any covenants or other promises of the
Grantor with respect to taxes, assessments, charges, fees, Liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Loan Documents;
(iv) execute, in connection with the exercise of any right or remedy
provided for in
Section 6
, any endorsements, assignments or other instruments of conveyance or transfer
with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral
to make payment of any and all moneys due or to become due thereunder directly
to the Collateral Agent or as the Collateral Agent shall direct; (2) ask or
demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect
of or arising out of any Collateral and to give discharges and releases of all
or any of the Collateral; (3) sign and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in connection
with any of the Collateral; (4) [reserved]; (5) commence and prosecute any
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to enforce
any other right in respect of any Collateral; (6) defend any suit, action or
proceeding brought against the Grantor with respect to any Collateral; (7)
settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the Collateral Agent
may deem appropriate; (8) [reserved]; and (9) generally, sell, transfer,
pledge and make any agreement with respect to, or consent to any use of cash
collateral arising in respect of, or otherwise deal with any of the Collateral
as fully and completely as though the Collateral Agent were the absolute owner
thereof for all purposes, and do, at the Collateral Agent's option and the
Grantor's expense, at any time, or from time to time, all acts and things
which the Collateral Agent reasonably deems necessary to protect, preserve or
realize upon the Collateral and the CA Secured Parties' security interests
therein and to effect the intent of this Agreement, all as fully and
effectively as the Grantor might do.
Anything in this
Section 7.1(a)
to the contrary notwithstanding, the Collateral Agent agrees that, except as
expressly provided in
Section 7.1(b)
, it will not exercise any rights under the power of attorney provided for in
this
Section 7.1(a)
unless an Event of Default shall have occurred and be continuing.
(b) If the Grantor fails to perform or comply with any of its agreements
contained herein, the Collateral Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement;
provided
,
however
,
that unless an Event of Default under the ABL Credit Agreement (including a
"Purchase and Contribution Termination Event" under the Borrower Purchase
Agreement) has occurred and is continuing or time is of the essence, the
Collateral Agent shall not exercise this power without first making written
demand on the Grantor and the Grantor failing to comply therewith within a
reasonable period of time after such receipt of such written demand.
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(c) The reasonable and documented out-of-pocket expenses of the Collateral
Agent incurred in connection with actions undertaken as provided in this
Section 7.1
shall be payable by the Grantor to the Collateral Agent on demand.
(d) Each Secured Party, by its authorization of the Collateral Agent's
entering into this Agreement, consents to the exercise by the Collateral Agent
of any power, right or remedy provided for herein. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until the termination of this Agreement.
7.2
Duty of Collateral Agent
. Neither the Collateral Agent nor any other Secured Party nor any of their
respective officers, directors, partners, employees, agents, attorneys and
other advisors, attorneys-in-fact or affiliates shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The
powers conferred on the CA Secured Parties hereunder are solely to protect the
CA Secured Parties' interests in the Collateral and shall not impose any duty
upon any Secured Party to exercise any such powers. The CA Secured Parties
shall be accountable only for amounts that they actually receive as a result
of the exercise of such powers, and neither they nor any of their officers,
directors, partners, employees, agents, attorneys and other advisors,
attorneys-in-fact or affiliates shall be responsible to the Grantor for any
act or failure to act hereunder, except to the extent that any such act or
failure to act is found by a final and unappealable decision of a court of
competent jurisdiction to have resulted directly from their own gross
negligence, bad faith or willful misconduct (including a material breach of
their obligations under the Loan Documents).
7.3
Execution of Financing Statements
. The Grantor hereby authorizes the Collateral Agent to file or record
financing or continuation statements, and amendments thereto, and other filing
or recording documents or instruments with respect to the Collateral in such
form and in such offices as the Collateral Agent reasonably determines
appropriate to perfect or maintain the perfection of the security interests of
the Collateral Agent under this Agreement. The Grantor agrees that such
financing statements may describe the Collateral in this Agreement or such
other description as the Collateral Agent reasonably determines is necessary
or advisable. The Grantor also ratifies its authorization for the Collateral
Agent to file in any relevant jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.
7.4
Authority of Collateral Agent
. The Grantor acknowledges that the rights and responsibilities of the
Collateral Agent under this Agreement with respect to any action taken by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
Collateral Agent and the other CA Secured Parties, be governed by the ABL
Credit Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Collateral Agent and
the Grantor, the Collateral Agent shall be conclusively presumed to be acting
as agent for the CA Secured Parties with full and valid authority so to act or
refrain from acting, and the Grantor shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
SECTION 8. [RESERVED]
SECTION 9. MISCELLANEOUS
9.1
Amendments in Writing
. None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by written agreement between the
Grantor
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and the Collateral Agent;
provided
that the Schedules to this Agreement may be amended or supplemented by the
Grantor at any time by delivering such amended or supplemented schedule to the
Collateral Agent.
9.2
Notices
. All notices, requests and demands to or upon the Collateral Agent or the
Grantor hereunder shall be effected in the manner provided for in Section 9.1
of the ABL Credit Agreement. All notices and other communications hereunder
shall be made as follows:
if to the Grantor, at:
HE AR INTER LLC
c/o Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
with copies (which shall not constitute notice) to:
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
if to the Collateral Agent, at:
Barclays Bank PLC
US Originations - Agency
745 7
th
Ave
New York, NY 10019
Attention: Arup Ghosh
Telephone: (201) 499-8490
Email: arup.ghosh@barclays.com and bdmabl2@barclays.com
with copies to (which shall not constitute notice) to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Jennifer Buczek Ezring
Telephone: 212-906-1633
9.3
No Waiver by Course of Conduct; Cumulative Remedies
. No Secured Party shall by any act (except by a written instrument pursuant to
Section 9.1
), delay, indulgence, or omission, or otherwise, be deemed to have waived any
right or remedy hereunder or to have acquiesced in any default hereunder or
under the Borrower Purchase Agreement or any other Loan Document. No failure
to exercise, nor any delay in exercising, on the part of any Secured Party,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by any Secured Party of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which such Secured Party would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
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9.4
Enforcement Expenses; Indemnification
. (a) The Grantor agrees to pay or reimburse the Collateral Agent and each
other Secured Party for all its reasonable and documented out-of-pocket costs
and expenses incurred in enforcing or preserving any rights under this
Agreement and the other Loan Documents to which the Grantor is a party to the
extent the Grantor would be required to do so pursuant to Section 10.1 of the
Borrower Purchase Agreement, including the reasonable and documented
out-of-pocket fees and disbursements and other charges of such legal counsel
to the Collateral Agent and the Secured Parties as the Grantor would be
required to pay or reimburse pursuant to Section 10.1 of the Borrower Purchase
Agreement.
(b) Subject to Section 9.1 of the Borrower Purchase Agreement, the Grantor
agrees to pay, and to hold the Collateral Agent and each other Secured Party
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, court or documentary, intangible,
recording, filing or similar taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) The Grantor agrees to pay, and to hold the Lenders and the Collateral
Agent harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable and documented out-of-pocket
costs and expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, in each case, to the extent the Grantor would be required
to do so pursuant to Section 10.1 of the Borrower Purchase Agreement.
9.5
Successors and Assigns
. This Agreement shall be binding upon the successors and assigns of the
Grantor and shall inure to the benefit of the Secured Parties and their
successors and assigns;
provided
that the Grantor may not assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Collateral Agent.
9.6
[Reserved]
.
9.7
Counterparts
. This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement shall become effective when it shall have been executed by the
Collateral Agent and when the Collateral Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
facsimile or other electronic transmission (
e.g
., "PDF" or "TIFF") shall be effective as delivery of a manually executed
counterpart of this Agreement. The words "execution," "signed," "signature,"
and words of like import in this Agreement or in any amendment or other
modification hereof (including waivers and consents) shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any
applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state Laws based on the Uniform Electronic
Transactions Act.
9.8
Severability
. Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof;
and the invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction.
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9.9
Section Headings
. Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
9.10
Integration
. The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights or remedies
provided by Law or any Loan Document.
9.11
Governing Law
. This Agreement 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 and the transactions contemplated hereby shall be
construed in accordance with and governed by the law of the State of New York.
9.12
Submission to Jurisdiction; Waivers
. (a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding shall be
heard and determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Notwithstanding the foregoing, the Collateral Agent may bring
an action or proceeding against any Collateral in a jurisdiction where such
Collateral is located.
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
court referred to in
paragraph (a)
of this
Section 9.12
. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each of the parties hereto irrevocably consents to service of process
in the manner provided for notices in
Section 9.2
. Nothing in this Agreement or any other Loan Document will affect the right
of any party to this Agreement to serve process in any other manner permitted
by law.
9.13
Releases
. (a) Upon the Discharge of Obligations, this Agreement and the Liens granted
hereby shall automatically terminate and be released, without the requirement
for any further action by any Person, and the Collateral Agent shall promptly
(and each Secured Party, by its authorization of the Collateral Agent's
entering into this Agreement, hereby authorizes the Collateral Agent to) take
such actions and execute any such documents as may be reasonably requested by
the Grantor and at the Grantor's expense to further document and evidence such
termination and release.
(b) [Reserved].
(c) All releases or other documents delivered by the Collateral Agent
pursuant to this
Section 9.13
shall be without recourse to, or warranty by, the Collateral Agent.
9.14
No Fiduciary Duty
. The Grantor agrees that the provisions of Section 9.16 of the ABL Credit
Agreement are incorporated herein by reference,
mutatis mutandis
.
No Proceeding, Limited Recourse
. The Collateral Agent hereby agrees that it will not institute, or join any
other Person in instituting,
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US-DOCS\148935905.18
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any insolvency proceeding against the Grantor. The Collateral Agent further
agrees that notwithstanding any provisions contained in this Agreement to the
contrary, the liability of the Grantor under this Agreement is limited to the
Collateral and the proceeds, if any, realized by the Collateral Agent from the
Collateral, and no action or proceeding shall be brough by the Collateral
Agent or any CA Secured Party against the Grantor or against any of its assets
(other than the Collateral) under this Agreement (other than an action or
proceeding to enforce all of the rights and remedies under this Agreement
which the Collateral Agent now has or may hereafter have against the
Collateral).
9.16
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
9.17
Process Agent
. The Grantor irrevocably and unconditionally appoints HE AR BRWR LLC, a
Delaware limited liability company, with an office on the date hereof at 1099
Alakea Street, Suite 2200, Honolulu, Hawaii 96813, and its successors
hereunder (in each case, and in such capacity, the "
Process Agent
"), as its agent to receive on behalf of the Grantor and its property all
writs, claims, process, and summonses in any action or proceeding brought
against it in the State of New York. Such service may be made by mailing or
delivering a copy of such process to the Grantor in care of the Process Agent
at the address specified above for the Process Agent, and the Grantor
irrevocably authorizes and directs the Process Agent to accept such service on
its behalf. Failure by the Process Agent to give notice to the Grantor, or
failure of the Grantor to receive notice of such service of process shall not
impair or affect the validity of such service on the Process Agent or the
Grantor, or of any judgment based thereon. The Grantor covenants and agrees
that it shall take any and all reasonable action, including the execution and
filing of any and all documents, that may be necessary to continue the
designation of the Process Agent above in full force and effect, and to cause
the Process Agent to act as such. Nothing herein shall in any way be deemed to
limit the ability to serve any such writs, process or summonses in any other
manner permitted by applicable law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US-DOCS\148935905.18
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
HE AR INTER LLC
, as Grantor
By:
Name:
Title:
[
Signature Page to Intermediate Collateral Agreement
]
-------------------------------------------------------------------------------
BARCLAYS BANK PLC
, as Collateral Agent
By:
Name:
Title:
[
Signature Page to Intermediate Collateral Agreement
]
-------------------------------------------------------------------------------
Schedules to
ABL Collateral Agreement
Schedule 1
Intermediate Accounts
As of the Closing Date: None.
US-DOCS\148935905.18
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Schedules to
ABL Collateral Agreement
Schedule 2
Filings and Other Actions Required to Perfect Security Interests
Type of Filing Entity Applicable Jurisdictions
Collateral Document
Mortgage, Security
Agreement or Other
UCC-1 Financing HE AR INTER LLC Collateral Agreement Delaware
US-DOCS\148935905.18
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Schedules to
ABL Collateral Agreement
Schedule 3
Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive
Office
Name Chief Executive Office Jurisdiction Tax ID Organizational Numbers
Number
HE AR INTER LLC 1099 Alakea Street, Suite 2200, Honolulu, Hawaii Delaware EIN: 99- 3307664
96813 2525201
US-DOCS\148935905.18
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EXHIBIT A-3
to the ABL
Credit Agreement
[FORM OF]
INTERMEDIATE PLEDGE AGREEMENT
[ATTACHED]
A-3
US-DOCS\149007241.10
-------------------------------------------------------------------------------
Execution Version
PLEDGE AGREEMENT
dated as of
May 17, 2024,
by
HE AR INTER LLC,
as Grantor
in favor of
BARCLAYS BANK PLC,
as Collateral Agent
US-DOCS\149536231.6
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TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS 1
1.1 Definitions 1
1.2 Other Definitional Provisions 3
SECTION 2. [RESERVED] 3
SECTION 3. PLEDGE 3
SECTION 4. REPRESENTATIONS AND WARRANTIES 4
4.1 Title; No Other Liens 4
4.2 Perfected First Priority Liens 4
4.3 Name; Jurisdiction of Organization, etc. 4
4.4 [Reserved] 4
4.5 Pledged LLC Interests 4
4.6 [Reserved] 4
4.7 Organization and Good Standing 4
4.8 Due Qualification 4
4.9 Power and Authority; Due Authorization 5
4.10 Binding Obligations 5
4.11 No Conflict or Violation 5
4.12 Litigation and Other Proceedings 5
4.13 No Consents 5
4.14 Taxes 5
SECTION 5. COVENANTS 6
5.1 [Reserved] 6
5.2 Maintenance of Perfected Security Interest; Further Documentation 6
5.3 Changes in Locations, Name, Jurisdiction of Incorporation, etc. 6
5.4 Payment of Taxes; Tax Status 7
5.5 Delivery of Certificated Pledged LLC Interests 7
SECTION 6. REMEDIAL PROVISIONS 7
6.1 [Reserved] 7
6.2 Pledged LLC Interests 7
6.3 Proceeds to be Turned Over to the Collateral Agent 9
6.4 Application of Proceeds 9
6.5 Code and Other Remedies 10
6.6 Waivers 12
6.7 Deficiency 13
SECTION 7. THE COLLATERAL AGENT 13
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc. 13
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US-DOCS\149536231.6
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7.2 Duty of Collateral Agent 15
7.3 Execution of Financing Statements 15
7.4 Authority of Collateral Agent 15
SECTION 8. [RESERVED] 16
SECTION 9. MISCELLANEOUS 16
9.1 Amendments in Writing 16
9.2 Notices 16
9.3 No Waiver by Course of Conduct; Cumulative Remedies 17
9.4 Enforcement Expenses; Indemnification 17
9.5 Successors and Assigns 17
9.6 [Reserved] 17
9.7 Counterparts 17
9.8 Severability 18
9.9 Section Headings 18
9.10 Integration 18
9.11 Governing Law 18
9.12 Submission to Jurisdiction; Waivers 18
9.13 Releases 19
9.14 No Fiduciary Duty 19
9.15 No Proceeding, Limited Recourse 19
9.16 WAIVER OF JURY TRIAL 19
9.17 Process Agent 19
SCHEDULES
Schedule 1 Description of Pledged LLC Interests
Schedule 2 Filings and Other Actions Required to Perfect Security Interests
Schedule 3 Exact Legal Name, Location of Jurisdiction of Organization and
Chief Executive Office
EXHIBITS
Exhibit I Form of Borrower's Acknowledgement
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US-DOCS\149536231.6
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PLEDGE AGREEMENT, dated as of May 17, 2024 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, this "
Agreement
") made by HE AR INTER LLC, a Delaware limited liability company (the "
Grantor
") in favor of BARCLAYS BANK PLC, as collateral agent (together with its
successors and permitted assigns in such capacity, the "Collateral
Agent
") for the benefit of (a) the Lenders from time to time parties to the ABL
Credit Agreement, dated as of the date hereof (as amended, restated, amended
and restated, supplemented, refinanced or otherwise modified from time to
time, the "
ABL Credit Agreement
"), among HE AR BRWR LLC, a Delaware limited liability company (the "
Borrower
"), the Collateral Agent, the several banks and other financial institutions
from time to time parties thereto as Lenders and Agents, and (b) the other CA
Secured Parties (as hereinafter defined).
WITNESSETH
:
WHEREAS, the Grantor and the Borrower are a party to that certain Purchase and
Contribution Agreement, dated as of the date hereof (the "
Borrower Purchase Agreement
"), pursuant to which the Grantor has agreed to sell certain accounts
receivable to the Grantee;
WHEREAS, under that certain ABL Collateral Agreement, dated as of the date
hereof (the "
ABL Collateral Agreement
") and as required by the ABL Credit Agreement, the Borrower has granted a
security interest over, and collaterally assigned, all of its rights, assets
and personal property (including all its rights under the Borrower Purchase
Agreement) in favor of the Collateral Agent (for the benefit of the CA Secured
Parties);
WHEREAS, the Grantor is the direct legal and beneficial owner of 100% of the
Pledged LLC Interests of the Borrower;
WHEREAS, the Grantor will derive substantial direct and indirect benefit from
the making of the extensions of credit to the Borrower, pursuant to the terms
of the ABL Credit Agreement and the other Loan Documents; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make
their respective extensions of credit to the Borrower under the ABL Credit
Agreement that the Grantor shall have executed and delivered this Agreement to
the Collateral Agent for the benefit of the CA Secured Parties.
NOW, THEREFORE, in consideration of the above premises the parties hereto
hereby agree as follows:
SECTION 1. DEFINED TERMS
1.1
Definitions
. (a) Unless otherwise defined herein, terms defined in the ABL Credit
Agreement and used herein shall have the meanings given to them in the ABL
Credit Agreement;
provided
that each term defined in the New York UCC and not defined in this Agreement
shall have the meaning specified in the New York UCC.
(b) The following terms shall have the following meanings:
"
ABL Credit Agreement
": as defined in the preamble hereto.
"
ABL Collateral Agreement
": as defined in the recitals hereto.
"
Agreement
": as defined in the preamble hereto.
US-DOCS\149536231.6
-------------------------------------------------------------------------------
"
Applicable Date
": the Closing Date, the Purchase Agreement Effective Date (as defined in the
Borrower Purchase Agreement) and each Sale Date (as defined in the Borrower
Purchase Agreement).
"
Borrower Purchase Agreement
": as defined in the recitals hereto.
"
Borrower
": as defined in the preamble hereto.
"
CA Secured Parties
": the "Secured Parties" as defined in the ABL Credit Agreement.
"
Closing Date
": the date of this Agreement.
"
Collateral
": as defined in
Section 3(a)
.
"
Collateral Account
": any collateral deposit account established by the Collateral Agent to hold
cash pending application to the Secured Obligations.
"Collateral
Agent
": as defined in the preamble hereto.
"
Discharge of Obligations
": shall have occurred when (a) (i) all Obligations have been paid in full in
cash and all other obligations under the Loan Documents have been performed
(other than contingent obligations as to which no claim has been asserted),
and (ii) obligations and liabilities under Cash Management Obligations as to
which arrangements satisfactory to the applicable Qualified Counterparties
shall have been made and (b) all Revolving Credit Commitments shall have been
terminated or expired; when referring to Obligations. "
Discharged
" shall have a correlative meaning.
"
Grantor
": as defined in the preamble hereto.
"
Grantor Material Adverse Effect
": as defined in
Section 4.8
.
"
New York UCC
": the Uniform Commercial Code as from time to time in effect in the State of
New York.
"
Pledged LLC Interests
": all limited liability company interests, membership interests or other
equity interests of the Borrower now owned or hereafter acquired by the
Grantor, including all limited liability company interests described on
Schedule 1 (as such schedule may be amended from time to time), and the
certificates, if any, representing such Pledged LLC Interests and any interest
of the Grantor in the entries on the books of the Borrower, and all Proceeds
thereof and other warrants, rights, options or other property received,
receivable or otherwise distributed in respect of or in exchange for any or
all Pledged LLC Interests, and any warrant, right or option to acquire any of
the foregoing.
"
Proceeds
": all "proceeds" as such term is defined in
Section 9-102(a)(64)
of the New York UCC and, in any event, shall include, all cash dividends or
other income from the Pledged LLC Interests, collections thereon or
distributions or payments with respect thereto (other than cash dividends
received from the Borrower or other income from Pledged LLC Interests that has
been distributed by the Borrower free and clear of any Liens, pursuant to the
terms of the ABL Credit Agreement).
"
Secured Obligations
": as defined in
Section 3(a)
.
"
UCC
" or "
Uniform Commercial Code
": the New York UCC or, where the context requires, the Uniform Commercial
Code or any equivalent statute of any other relevant jurisdiction.
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US-DOCS\149536231.6
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1.2
Other Definitional Provisions
. (a) Except as otherwise expressly set forth herein, the rules of
construction specified under the heading "Definitions" in Section 1.2 of the
ABL Credit Agreement are incorporated herein by reference
mutatis mutandis
.
(b) Where the context requires, terms relating to the Collateral or any
part thereof, when used in relation to the Grantor, shall refer to the
Grantor's Collateral or the relevant part thereof.
(c) All references herein to provisions of the UCC shall include all
successor provisions under any subsequent version or amendment to any Article
of the UCC.
SECTION 2. [RESERVED]
SECTION 3. PLEDGE
(a) The Grantor hereby pledges, grants and collaterally assigns and
transfers to the Collateral Agent, for the benefit of the CA Secured Parties,
a security interest in, all of its right, title and interest in and to all of
the following personal property, in each case, wherever located and whether
now owned or at any time hereafter acquired by the Grantor or in which the
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "
Collateral
"), as collateral security for the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations under the ABL Credit Agreement (the "
Secured Obligations
"):
(i) the Pledged LLC Interests;
(ii) to the extent not otherwise included, all rights of any nature
whatsoever in respect of the foregoing, including without limitation, all
voting rights and economic rights of the Grantor in the Borrower; and
(iii) any and all Proceeds of the foregoing.
(b) Notwithstanding anything to the contrary in the Loan Documents, the
Grantor shall not be required pursuant to this Agreement, to take any action
to perfect the security interests granted by this Agreement by any means other
than by filings pursuant to the UCC in the office of the Secretary of State
(or similar central filing office) of the relevant State or elsewhere as
required by the UCC.
(c) Notwithstanding anything herein to the contrary, (i) the Grantor shall
remain liable for all of its obligations in respect of the Collateral
(including any agreement included therein) and nothing contained herein is
intended or shall be a delegation of duties to the Collateral Agent or any
other CA Secured Party, (ii) the Grantor agrees to indemnify and hold harmless
the Collateral Agent and the CA Secured Parties from and against any and all
liability for performance under each contract, agreement or instrument
relating to the Collateral, (iii) the Grantor shall remain liable under each
of its agreements included in the Collateral, and shall perform all of its
obligations undertaken by it thereunder all in accordance with and pursuant to
the terms and provisions thereof and
neither the Collateral Agent nor any other CA Secured Party shall have any
obligation or liability under any of such agreements or any obligation or
liability under any other Collateral by reason of or arising out of this
Agreement nor shall the Collateral Agent nor any other Person have any
obligation to make any inquiry as to the nature or sufficiency of any payment
received by it or have any obligation to take any action to collect or enforce
any rights under any agreement included in the Collateral and (iv) the
exercise by the Collateral Agent of any of its rights hereunder shall not
release the Grantor from any of its duties or obligations under the contracts
and agreements included in the Collateral.
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US-DOCS\149536231.6
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SECTION 4. REPRESENTATIONS AND WARRANTIES
The Grantor hereby represents and warrants to the Collateral Agent that:
4.1
Title; No Other Liens
. It owns each item of the Collateral free and clear of any and all Liens. No
effective financing statement, fixture filing or other public notice under
applicable Law with respect to all or any part of the Collateral is on file or
of record in any public office, except those as have been filed in favor of
the Collateral Agent, for the benefit of the CA Secured Parties, pursuant to
this Agreement or the other Loan Documents or as otherwise permitted herein.
4.2
Perfected First Priority Liens
. The security interests granted pursuant to this Agreement constitute legal,
valid, binding and enforceable and first lien security interests in all of the
Collateral in favor of the Collateral Agent, for the benefit of the CA Secured
Parties, as collateral security for the Secured Obligations, enforceable
against the Grantor in accordance with the terms hereof, except as
enforceability may be limited by applicable Debtor Relief Laws and by general
equitable principles (whether enforcement is sought in proceedings in equity
or at law) and, when financing statements in appropriate form are filed in the
appropriate filing offices as specified on
Schedule 2
, and such other actions specified in
Sections 5.2
and
5.5
have been completed and upon the payment of all filing fees, will be perfected
(to the extent that perfection therein may be achieved by the foregoing
actions) and will be prior to the Liens on the Collateral of any other Person.
4.3
Name; Jurisdiction of Organization, etc.
As of the Applicable Date, its exact legal name (as indicated on the public
record of its jurisdiction of formation or organization), jurisdiction of
organization, organizational identification number, if any, and the location
of its chief executive office or sole place of business, as the case may be,
are specified on
Schedule 3
(as such schedule may be amended from time to time). Except as specified on
Schedule 3
(as such schedule may be amended from time to time), the Grantor has not
changed its name, jurisdiction of organization, chief executive office or sole
place of business (as the case may be) within the five year period immediately
prior to the Closing Date.
4.4
[Reserved]
.
4.5
Pledged LLC Interests
. As of each Applicable Date: (i) the Grantor is the record and beneficial
owner of all Pledged LLC Interests pledged by it hereunder which are issued by
the Borrower, (ii) the Grantor has good title to all such Pledged LLC
Interests, free of any and all Liens, and (iii) the units of Pledged LLC
Interests pledged by the Grantor (identified on
Schedule 1
) hereunder (x) constitute all of the limited liability company interests of
the Borrower, (y) have been duly and validly authorized and issued and are
fully paid and nonassessable, and (z) are uncertificated.
4.6
[Reserved]
.
4.7
Organization and Good Standing
. The Grantor is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization or formation, with the power
and authority under its Organization Documents and under the laws of the
jurisdiction of its organization or formation to own its properties and to
conduct its business as such properties are currently owned and such business
is presently conducted.
4.8
Due Qualification
. The Grantor is duly qualified to do business, is in good standing and has
obtained all necessary licenses and approvals in all jurisdictions in which
the conduct of its business requires such qualification, licenses or
approvals, except where the failure to do so could not reasonably be expected
to have a material adverse effect on (i) the Collateral pledged hereunder,
(ii) the ability of the Grantor to perform its obligations under this
Agreement and any other Loan Document to which the Grantor
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US-DOCS\149536231.6
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is a party; or (iii) the material rights and remedies of the Collateral Agent
under this Agreement and the other Loan Documents to which the Grantor is a
party, including the legality, validity, binding effect or enforceability of
this Agreement and the other Loan Documents to which the Grantor is a party (a
"
Grantor Material Adverse Effect
").
4.9
Power and Authority; Due Authorization
. The Grantor (i) has all necessary power and authority to (A) execute and
deliver this Agreement and the other Loan Documents to which it is a party,
(B) perform its obligations under this Agreement and the other Loan Documents
to which it is a party and the execution, delivery and performance of, and the
consummation of the transactions provided for in, this Agreement and the other
Loan Documents to which it is a party have been duly authorized by the Grantor
by all necessary action and (C) grant a security interest in Collateral on the
terms and subject to the conditions provided herein and (ii) has duly
authorized by all necessary action such grant and the execution, delivery and
performance of, and the consummation of the transactions provided for in, this
Agreement and the other Loan Documents to which it is a party.
4.10
Binding Obligations
. This Agreement and each of the other Loan Documents to which it is a party
constitutes legal, valid and binding obligations of the Grantor, enforceable
against the Grantor in accordance with their respective terms, except (i) as
such enforceability may be limited by applicable Debtor Relief Laws and (ii)
as such enforceability may be limited by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
4.11
No Conflict or Violation
. The execution and delivery of this Agreement and each other Loan Document to
which the Grantor is a party, the performance of the transactions contemplated
by this Agreement and the other Loan Documents to which it is a party and the
fulfillment of the terms of this Agreement and the other Loan Documents to
which it is a party by it will not (i) conflict with, result in any breach of
any of the terms or provisions of, or constitute (with or without notice or
lapse of time or both) a default under (x) its Organization Documents or (y)
any indenture, sale agreement, credit agreement, loan agreement, security
agreement, mortgage, deed of trust or other agreement or instrument to which
it is a party or by which it or any of its property is bound, (ii) result in
the creation or imposition of any Adverse Claim upon any of its properties
pursuant to the terms of any such indenture, credit agreement, loan agreement,
security agreement, mortgage, deed of trust or other agreement or instrument,
other than this Agreement and the other Loan Documents or (iii) conflict with
or violate any applicable Law, except in the case of
subclauses (i)(y)
,
(ii)
and
(iii)
, to the extent that any such conflict, breach, default, Adverse Claim or
violation could not reasonably be expected to have a Grantor Material Adverse
Effect.
4.12
Litigation and Other Proceedings
. There is no action, suit, proceeding or investigation pending, or to its
knowledge threatened, against the Grantor before any Governmental Authority:
(i) asserting the invalidity of this Agreement or any of the other Loan
Documents, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other Loan Document or (iii) seeking any
determination or ruling that could materially and adversely affect the
performance by it of its obligations under, or the validity or enforceability
of, this Agreement or any of the other Loan Documents.
4.13
No Consents
. The Grantor is not required to obtain the consent of any other party or any
consent, license, approval, registration, authorization or declaration of or
with any Governmental Authority in connection with the execution, delivery, or
performance of this Agreement or any other Loan Document to which it is a
party that has not already been obtained or the failure of which to obtain
could not reasonably be expected to have a Grantor Material Adverse Effect.
4.14
Taxes
. Except as would not, either individually or in the aggregate, reasonably be
expected to result in a Grantor Material Adverse Effect, the Grantor has
timely filed all tax returns required
-5-
US-DOCS\149536231.6
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to have been filed, and has paid all Taxes levied or imposed upon it or its
properties, income, profits or assets, that are due and payable, in each case
including in its capacity as a withholding agent, except those which are being
contested in good faith by appropriate proceedings as to which no Collateral
would become subject to forfeiture or loss as a result of such contest and for
which adequate reserves have been provided in accordance with GAAP. The
Grantor is (x) a wholly-owned direct subsidiary of a US Person that is a
corporation for US federal income tax purposes and (y) a "disregarded entity"
within the meaning of US Treasury Regulation (s) 301.7701-3 for US federal
income tax purposes.
SECTION 5. COVENANTS
The Grantor covenants and agrees with the Collateral Agent that, until the
Discharge of Obligations:
5.1
[Reserved]
.
5.2
Maintenance of Perfected Security Interest; Further Documentation
. (a) Subject to
Section 3(b)
hereof, the Grantor shall maintain the security interest created by this
Agreement on the Collateral as a perfected security interest having at least
the priority described in
Section 4.2
, shall cause such Collateral to remain free of Liens, and shall use
commercially reasonable efforts to defend such security interest against the
claims and demands of all Persons whomsoever.
(b) The Grantor agrees to maintain or cause to be maintained, at its own
cost and expense, complete and accurate records in all material respects with
respect to the Collateral owned by it, in any event to include complete
accounting records in all respects with respect to all payments and proceeds
received with respect to any part of the Collateral, and, at such time or
times as the Collateral Agent may reasonably request, promptly to prepare and
deliver to the Collateral Agent a duly certified schedule or schedules in form
and detail reasonably satisfactory to the Collateral Agent showing the
identity, amount and location of any Collateral.
(c) Subject to
Section 3(b)
hereof, at any time and from time to time, upon the written request of the
Collateral Agent, and at the sole expense of the Grantor, the Grantor will
promptly and duly authorize, execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Collateral Agent may reasonably request to better assure, preserve, protect
and perfect the security interests granted hereby, the full benefits of this
Agreement and the rights and powers herein granted, including (i) subject to
Section 9.3 of the ABL Credit Agreement (as if the Grantor were the "Borrower"
thereunder), the payment of any fees and taxes required in connection with the
execution and delivery of this Agreement and the granting and perfecting of
the security interests, and (ii) the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any applicable
jurisdiction within the United States. The Grantor will provide (or cause to
be provided) to the Collateral Agent from time to time upon reasonable
request, evidence reasonably satisfactory to the Collateral Agent as to the
perfection (to the extent required by this Agreement) and priority of the Lien
created or intended to be created pursuant to this Agreement.
5.3
Changes in Locations, Name, Jurisdiction of Incorporation, etc.
If the Grantor (i) changes its jurisdiction of organization or the location of
its chief executive office from that referred to on
Schedule 3
(as such schedule may be amended from time to time), (ii) changes its legal
name or (iii) changes its type of organization, the Grantor shall provide
written notice to the Collateral Agent within ten Business Days after any such
change and, substantially concurrently with such written notice (or within
such other period as is reasonably acceptable to the Collateral Agent), shall
deliver to the Collateral Agent all additional financing statements and any
other documents necessary to maintain the validity, perfection and
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priority of the security interests in the Collateral provided for herein,
subject to
Section 3(b)
of this Agreement.
5.4
Payment of Taxes; Tax Status
. Except as would not, either individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, the Grantor has timely filed
(or validly extended) or caused to be filed (or validly extended), and will
timely file (or validly extend) all material Tax returns and reports required
by Applicable Law to have been filed by it and has paid or caused to be paid
all Taxes required to be paid by it, except (i) any Taxes that are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP have been established or (ii) to the extent
that the failure to do so would not reasonably be expected to have a Grantor
Material Adverse Effect. The Grantor is and shall remain (x) a wholly-owned
direct subsidiary of a US Person that is a corporation for US federal income
tax purposes and (y) a "disregarded entity" within the meaning of US Treasury
Regulation (s) 301.7701-3 for US federal income tax purposes.
5.5
Delivery of Certificated Pledged LLC Interests
.
(a) [Reserved].
(b) If any of the Pledged LLC Interests shall become evidenced or
represented, by any certificate, such certificate shall be delivered to the
Collateral Agent no later than the later of (x) the next date of delivery of a
Compliance Certificate pursuant to Section 5.1(b) of the ABL Credit Agreement
covering the period that includes the date when such Pledged LLC Interest
became evidenced or represented by a certificate and (y) 60 days after such
Pledged LLC Interest became so evidenced or represented by a certificate (or
such later date as the Collateral Agent may agree in its reasonable
discretion), in each case accompanied by undated stock powers or other
instruments of transfer duly executed by the Grantor in blank in a manner and
in such form as contemplated by applicable Law, to be held as Collateral
pursuant to this Agreement.
(c) The Grantor acknowledges and agrees that to the extent each interest in
any limited liability company or limited partnership that is a Subsidiary of a
Grantor and pledged hereunder is a "security" within the meaning of Article 8
of the New York UCC and is governed by Article 8 of the New York UCC or the
Uniform Commercial Code or any other applicable jurisdiction, such interest
shall be certificated and delivered to the Collateral Agent in accordance with
the provisions of
Section 5.5(b)
. The Grantor hereby agrees that if any of the Pledged LLC Interests are at
any time not evidenced by certificates of ownership, then it shall (i) cause
the Borrower to execute and deliver to the Collateral Agent an acknowledgment
of the pledge of such Pledged LLC Interests substantially in the form of
Exhibit I
hereto or such other form that is reasonably satisfactory to the Collateral
Agent, and (ii) after the occurrence and during the continuance of any Event
of Default under the ABL Credit Agreement (including a "Purchase and Sale
Termination Event" under the Borrower Purchase Agreement), upon request by the
Collateral Agent and to the fullest extent permitted by applicable Law, (A)
cause the Organization Documents of the Borrower to be amended to provide that
such Pledged LLC Interests shall be treated as "securities" for purposes of
the UCC and (B) cause such Pledged LLC Interests to become certificated and
delivered to the Collateral Agent in accordance with
Section 5.5(b)
above.
SECTION 6. REMEDIAL PROVISIONS
6.1
[Reserved]
.
6.2
Pledged LLC Interests
. (a) Unless an Event of Default under the ABL Credit Agreement shall have
occurred and be continuing (including a "Purchase and Sale Termination Event"
under the Borrower Purchase Agreement) and the Collateral Agent shall have
given prior notice to the
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Grantor of the Collateral Agent's intent to exercise its corresponding rights
pursuant to Section 6.2(b) (which notice shall be deemed to have been given
(x) if given to the Borrower or (y) immediately upon the occurrence of an
Event of Default under Section 7.1(f) of the ABL Credit Agreement), the
Grantor shall be permitted to (i) receive all dividends, interest, principal
or other payments or distributions paid or made in respect of the Pledged LLC
Interests free and clear of any security interest herein, to the extent not
prohibited by the ABL Credit Agreement; provided, however, that any noncash
dividends, interest, principal or other distributions that would constitute
Pledged LLC Interests, whether resulting from a subdivision, combination or
reclassification of the outstanding equity interests of the issuer of any
Pledged LLC Interests or received in exchange for Pledged LLC Interests or any
part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer
may be a party or otherwise, shall be and become part of the Collateral, and,
if received by the Grantor shall be held for the benefit of the Collateral
Agent and the CA Secured Parties and shall be forthwith delivered to the
Collateral Agent in the same form as so received (with any necessary
endorsement or instrument of assignment), and (ii) exercise all voting and
limited liability company or other ownership rights with respect to the
Pledged LLC Interests; provided, however, that no vote shall be cast or
corporate or other ownership right exercised or other action taken which would
reasonably be expected to materially and adversely affect the rights inuring
to a holder of any Pledged LLC Interests or the rights and remedies of the
Collateral Agent or the other CA Secured Parties under this Agreement or any
other Loan Document or the ability of the Collateral Agent (for the benefit of
the CA Secured Parties) to exercise the same or which would violate any
provision of this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing under the ABL
Credit Agreement (including a "Purchase and Sale Termination Event" under the
Borrower Purchase Agreement) and the Collateral Agent shall have given prior
notice to the Grantor of the Collateral Agent's intent to execute its rights
pursuant to this Section 6.2(b) (which notice shall be deemed to have been
given (x) if given to the Borrower or (y) immediately upon the occurrence of
an Event of Default under Section 7.1(f) of the ABL Credit Agreement): (i) all
rights of the Grantor to receive and retain all dividends, interest, principal
or other payments paid or made in respect of the Pledged LLC Interests shall
cease and shall thereupon become vested in the Collateral Agent, who shall
have the sole right to receive any and all dividends, interest, principal or
other payments or distributions paid in respect to the Pledged LLC Interests
included in the Collateral and make application thereof to the payment of the
Secured Obligations in accordance with Section 6.4 (except to the extent of
any distributions or dividends permitted to be made under the ABL Credit
Agreement), (ii) all rights of the Grantor to exercise or refrain from
exercising the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant hereto shall cease and all such rights shall
thereupon become vested in the Collateral Agent which shall thereupon have the
sole right, but shall be under no obligation, to exercise or refrain from
exercising such voting and other consensual rights and (iii) the Collateral
Agent shall have the right, without notice to the Grantor, to transfer all or
any portion of the Pledged LLC Interest in its name or the name of its nominee
or agent or the name of the applicable Grantor, endorsed or assigned in blank
in favor of the Collateral Agent, and the Grantor will, upon request, promptly
give to the Collateral Agent copies of any notices or other communications
received by it with respect to Pledged LLC Interests included in the
Collateral registered in the name of the Grantor. In addition, if an Event of
Default has occurred and is continuing (including a "Purchase and Sale
Termination Event" under the Borrower Purchase Agreement), the Collateral
Agent shall have the right at any time, without notice to the Grantor, to
exchange any certificates or instruments representing any Pledged LLC Interest
included in the Collateral for certificates or instruments of smaller or
larger denominations. In order to permit the Collateral Agent to exercise the
voting and other consensual rights which it may be entitled to exercise
pursuant hereto and to receive all dividends and other distributions which it
may be entitled to receive hereunder if an Event of Default has occurred and
is continuing under the ABL Credit Agreement (including a "Purchase and Sale
Termination Event" under the Borrower Purchase Agreement), the Grantor shall
promptly execute and deliver (or cause to be executed and delivered) to the
Collateral Agent all proxies, dividend payment orders and other instruments as
the
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Collateral Agent may from time to time reasonably request, and the Grantor
acknowledges that the Collateral Agent may utilize the power of attorney set
forth herein. All dividends, interest, principal or other payments or
distributions received by the Grantor contrary to the provisions of this
Section 6.2(b)
shall be held for the benefit of the Collateral Agent, shall be promptly
delivered to the Collateral Agent promptly following demand in the same form
as so received (with any necessary endorsement reasonably requested by the
Collateral Agent).
(c) Any notice given by the Collateral Agent to the Grantor under this
Section 6.2
(i) shall be given in writing (which, for the avoidance of doubt, includes
Electronically) and (ii) may suspend the rights of the Grantor under
paragraph (a)
or
(b)
of this
Section 6.2
in part without suspending all such rights (as specified by the Collateral
Agent in its sole and absolute discretion) and without waiving or otherwise
affecting the Collateral Agent's rights to give additional notices from time
to time suspending other rights so long as an Event of Default has occurred
and is continuing (including a "Purchase and Sale Termination Event" under the
Borrower Purchase Agreement).
(d) The Grantor hereby authorizes and instructs the Borrower, in its
capacity as issuer of the Pledged LLC Interests to (i) comply with any
instruction received by it from the Collateral Agent in writing that states
that an Event of Default has occurred and is continuing under the ABL Credit
Agreement (including a "Purchase and Sale Termination Event" under the
Borrower Purchase Agreement), without any other or further instructions from
the Grantor, and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged LLC Interests directly
to the Collateral Agent.
6.3
Proceeds to be Turned Over to the
Collateral
Agent
. If an Event of Default under the ABL Credit Agreement (including a "Purchase
and Contribution Termination Event" under the Borrower Purchase Agreement)
shall occur and be continuing , at the written request of the Collateral
Agent, all Proceeds of Collateral received by the Grantor consisting of cash,
Cash Equivalents and checks shall forthwith upon receipt by the Grantor, be
turned over to the Collateral Agent in the exact form received by the Grantor
(duly endorsed by the Grantor to the Collateral Agent, if reasonably
required). All such Proceeds of Collateral received by the Collateral Agent
under this
Section 6.3
shall be held by the Collateral Agent in a Collateral Account maintained under
its control (as defined in and subject to Section 9-104 of the New York UCC).
All such Proceeds while held by the Collateral Agent in a Collateral Account
(or by the Grantor for the CA Secured Parties) shall, at the election of the
Collateral Agent, be held as collateral security for all Secured Obligations
and shall not constitute payment thereof until applied as provided in
Section 6.4
of the ABL Collateral Agreement.
6.4
Application of Proceeds
. (a) If an Event of Default under the ABL Credit Agreement (including a
"Purchase and Contribution Termination Event" under the Borrower Purchase
Agreement) shall have occurred and be continuing, at any time at the
Collateral Agent's election, the Collateral Agent may apply all or any part of
the net Proceeds (after deducting out-of-pocket fees and expenses as provided
in
Section 6.5
below) of Collateral realized through the exercise by the Collateral Agent of
its remedies hereunder, whether or not held in any Collateral Account in
payment of the Secured Obligations.
(b) The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of proceeds in the amount agreed upon by the
Collateral Agent or by the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of
any part of the purchase money paid over to the Collateral Agent or such
officer or be answerable in any way for the misapplication thereof.
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6.5
Code and Other Remedies
. (a) Upon (i) the occurrence and during the continuance of an Event of
Default under the ABL Credit Agreement (including a "Purchase and Contribution
Termination Event" under the Borrower Purchase Agreement), and (ii) the
Collateral Agent's notice of its intent to exercise such rights to the
Grantor, the Grantor agrees to deliver each item of Collateral to the
Collateral Agent promptly after written demand therefor, and it is agreed that
the Collateral Agent, on behalf of the CA Secured Parties, may exercise, in
addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing or relating to
the Secured Obligations, all rights and remedies of a secured party under the
New York UCC (whether or not the New York UCC applies to the affected
Collateral) and all rights under any other applicable Law or in equity.
Without limiting the generality of the foregoing, the Collateral Agent,
without demand of performance or other demand, defense, presentment, protest,
advertisement or notice of any kind (except any notice required by Law
referred to below) to or upon the Grantor or any other Person (all and each of
which demands, presentments, protests, defenses (other than the defense of
payment or performance or the Discharge of Obligations), advertisements and
notices are hereby waived to the extent permitted by applicable Law), may in
such circumstances forthwith collect, receive, appropriate and realize upon
the Collateral, or any part thereof, or consent to the use by the Grantor of
any cash collateral arising in respect of the Collateral on such terms as the
Collateral Agent deems reasonable, and/or may forthwith sell, lease, license,
assign, give option or options to purchase, or otherwise dispose of and
deliver, or acquire by credit bid on behalf of the CA Secured Parties, the
Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, at any exchange,
broker's board or office of any CA Secured Party or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk, it being understood that any sale pursuant to the provisions of
this Section 6.5 shall be deemed to conform to the commercially reasonable
standards under the UCC with respect to any disposition of Collateral. Each CA
Secured Party shall have the right upon any such public sale or sales, and, to
the extent permitted by law, upon any such private sale or sales, to purchase
the whole or any part of the Collateral so sold, free of any right or equity
of redemption in the Grantor, which right or equity is hereby waived and
released. To the fullest extent permitted by applicable Law, each purchaser at
any such sale shall hold the property sold to it absolutely free from any
claim or right on the part of the Grantor, and the Grantor hereby waives (to
the extent permitted by applicable Law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any Law
now existing or hereafter enacted. The Grantor agrees that, to the extent
notice of sale shall be required by Law, at least ten days' notice to the
Grantor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Collateral Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. The Collateral Agent
may sell the Collateral without giving any warranties as to the Collateral.
The Collateral Agent may specifically disclaim or modify any warranties of
title or the like. To the fullest extent permitted by applicable Law, this
procedure will not be considered to adversely affect the commercial
reasonableness of any sale of the Collateral. The Grantor agrees that it would
not be commercially unreasonable for the Collateral Agent to dispose of the
Collateral or any portion thereof by using Internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capability of doing so, or that match buyers and sellers of assets.
Each such purchaser at any such sale shall hold the property sold absolutely
free from any claim or right on the part of the Grantor, and the Grantor
hereby waives (to the extent permitted by Law) all rights of redemption, stay
and appraisal which the Grantor now has or may at any time in the future have
under any Law now existing or hereafter enacted. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent
may proceed by a suit or suits at law or in equity to foreclose this Agreement
and to sell the Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver. In the event of a foreclosure by the
Collateral Agent on any of the Collateral pursuant to a public or private sale
or other
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disposition, the Collateral Agent or any lender thereof may be the purchaser
or licensor of any or all of such Collateral at any such sale or other
disposition, and the Collateral Agent, at the direction of the Required
Lenders, as agent for and representative of the CA Secured Parties (but not
any Lender or Lenders in its or their respective individual capacities unless
the Required Lenders shall otherwise agree in writing) shall be entitled, for
the purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Collateral sold at any such public sale, to use
and apply any of the Obligations as a credit on account of the purchase price
for any Collateral payable by the Collateral Agent on behalf of the CA Secured
Parties at such sale or other disposition. For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated
as a sale thereof and the Collateral Agent shall be free to carry out such
sale pursuant to such agreement and the Grantor shall not be entitled to the
return of the Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations
Discharged. To the extent permitted by applicable Law, the Grantor waives all
claims, damages and demands it may acquire against the Collateral Agent or any
CA Secured Party arising out of the exercise by them of any of their rights
hereunder. The Grantor further agrees, at the Collateral Agent's reasonable
request, if an Event of Default under the ABL Credit Agreement (including a
"Purchase and Contribution Termination Event" under the Borrower Purchase
Agreement) has occurred and is continuing, to assemble the Collateral and make
it available to the Collateral Agent at places which the Collateral Agent
shall reasonably select, whether at the Grantor's premises or elsewhere.
(b) The Collateral Agent shall apply the net proceeds of any action taken
by it pursuant to this Section 6.5, after deducting all reasonable and
documented out-of-pocket costs and expenses of the Collateral Agent of every
kind incurred in connection therewith or incidental to the care or safekeeping
of any of the Collateral or in any way relating to the Collateral or the
rights of the CA Secured Parties hereunder, including reasonable and
documented out-of-pocket attorneys' fees and disbursements to the extent
permitted by Section 9.3 of the ABL Credit Agreement, to the payment in whole
or in part of the Secured Obligations in accordance with Section 6.4 (which,
in turn, may be applied in whole or in part in payment of the Obligations of
the Borrower under the ABL Credit Agreement, including to the extent permitted
under Section 9.3 thereof, to the payment of any remaining reasonable and
document out-of-pocket attorney's fees and disbursements) and only after such
application and after the payment by the Collateral Agent of any other amount
required by any provision of Law, including Section 9-615(a) of the New York
UCC, need the Collateral Agent account for the surplus, if any, to the
Grantor. If the Collateral Agent sells any of the Collateral upon credit, the
Grantor will be credited only with payments actually made by the purchaser and
received by the Collateral Agent and applied to Indebtedness of the purchaser.
In the event the purchaser fails to pay for the Collateral, the Collateral
Agent may resell the Collateral and the Grantor shall be credited with
proceeds of the sale. To the extent permitted by applicable Law, the Grantor
waives all claims, damages and demands it may acquire against the Collateral
Agent or any other CA Secured Party arising out of the exercise by each such
Person of any rights hereunder.
(c) In view of the position of the Grantor in relation to the Collateral,
or because of other current or future circumstances, a question may arise
under the U.S. Securities Act of 1933, as now or hereafter in effect, or any
similar statute hereafter enacted analogous in purpose or effect (such Act and
any such similar statute as from time to time in effect being called the
"Securities Laws") with respect to any disposition of the Collateral permitted
hereunder. The Grantor understands that compliance with the Securities Laws
might very strictly limit the course of conduct of the Collateral Agent if the
Collateral Agent were to attempt to dispose of all or any part of the
Collateral, and might also limit the extent to which or the manner in which
any subsequent transferee of any Collateral could dispose of the same.
Similarly, there may be other legal restrictions or limitations affecting the
Collateral Agent in any attempt to dispose of all or part of the Collateral
under applicable "blue sky" or other state securities laws or similar laws
analogous in purpose or effect. The Grantor recognizes that in light of such
restrictions and limitations the Collateral Agent may, with respect to any
sale of the Collateral, limit the purchasers to those who will agree,
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among other things, to acquire such Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. The
Grantor acknowledges and agrees that in light of such restrictions and
limitations, the Collateral Agent, in its sole and absolute discretion (a) may
proceed to make such a sale whether or not a registration statement for the
purpose of registering such Collateral or part thereof shall have been filed
under the Securities Laws and (b) may approach and negotiate with a limited
number of potential purchasers (including a single potential purchaser) to
effect such sale. The Grantor acknowledges and agrees that any such sale might
result in prices and other terms less favorable to the seller than if such
sale were a public sale without such restrictions. In the event of any such
sale, the Collateral Agent shall incur no responsibility or liability for
selling all or any part of the Collateral at a price that the Collateral
Agent, in its sole and absolute discretion, may in good faith deem reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might have been realized if the sale were deferred until after
registration as aforesaid or if more than a limited number of purchasers (or a
single purchaser) were approached. The provisions of this Section 6.5 will
apply notwithstanding the existence of a public or private market upon which
the quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
6.6 Waivers. (a) All rights of Collateral Agent hereunder, and all
obligations of the Grantor hereunder, shall be absolute and unconditional
irrespective of, shall not be affected by, and shall remain in full force and
effect without regard to, and the Grantor hereby waives all, rights, claims or
defenses that it might otherwise have (now or in the future) with respect to,
each of the following (whether or not the Grantor has knowledge thereof):
(i) the validity or enforceability of the ABL Credit Agreement or any other
Loan Document, any of the obligations thereunder, or any right of offset with
respect thereto at any time or from time to time held by any party thereto;
(ii) any renewal, extension or acceleration of, or any increase in the
amount of the obligations under the ABL Credit Agreement or any other Loan
Document, or any amendment, supplement, modification or waiver of, or any
consent to departure from, any of the foregoing;
(iii) any failure or omission to assert or enforce or agreement or election
not to assert or enforce, delay in enforcement, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether
arising under the ABL Credit Agreement or any other Loan Document, at law, in
equity or otherwise) with respect to the obligations under the ABL Credit
Agreement or any other Loan Document or any agreement relating thereto, or
with respect to any other security for the payment of such obligations;
(iv) any change, reorganization or termination of the corporate structure
or existence of the Grantor or its Affiliates, and any corresponding
restructuring of the obligations under the ABL Credit Agreement or any other
Loan Document;
(v) any settlement, compromise, release, or discharge of, or acceptance or
refusal of any offer of payment or performance with respect to, or any
substitutions for, the obligations under the ABL Credit Agreement or any other
Loan Document or any subordination of the obligations under the ABL Credit
Agreement or any other Loan Document to any other obligations;
(vi) the validity, perfection, non-perfection or lapse in perfection,
priority or avoidance of any security interest or Lien, the release of any or
all collateral securing, or purporting to secure, the obligations under the
ABL Credit Agreement or any other Loan Document or any other impairment of
such collateral;
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(vii) any exercise of remedies with respect to any security for the
obligations under the ABL Credit Agreement or any other Loan Document(including,
without limitation, any collateral, including the Collateral securing or
purporting to secure any of the obligations under the ABL Credit Agreement or
any other Loan Document) at such time and in such order and in such manner as
the Collateral Agent and the CA Secured Parties may decide and whether or not
every aspect thereof is commercially reasonable and whether or not such action
constitutes an election of remedies and even if such action operates to impair
or extinguish any right of reimbursement or subrogation or other right or
remedy that the Grantor would otherwise have and without limiting the
generality of the foregoing or any other provisions hereof, the Grantor hereby
expressly waives any and all benefits which might otherwise be available to
such Grantor under applicable Law; and
(viii) any other circumstance whatsoever which may or might in any manner
or to any extent vary the risk of the Grantor as an obligor in respect of the
obligations under the ABL Credit Agreement or any other Loan Document or which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the applicable debtor for the obligations under the ABL Credit
Agreement or any other Loan Document, or of any security interest granted by
the applicable debtor, whether in a Bankruptcy Event or in any other instance.
(b) In addition the Grantor further waives any and all other defenses,
set-offs or counterclaims (other than the defense of payment or performance or
the Discharge of Obligations) which may at any time be available to or be
asserted by it, the Borrower or any other Person against any CA Secured Party,
including, without limitation, failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction and usury.
(c) The Grantor waives diligence, presentment, protest, marshaling, demand
for payment, notice of dishonor, notice of default and notice of nonpayment to
or upon itself. Except for notices provided for herein, the Grantor hereby
waives notice (to the extent permitted by Law) of any kind in connection with
this Agreement or any collateral securing the Secured Obligations, including,
without limitation, the Collateral. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against the Grantor, the
Collateral Agent may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
any Person or against any collateral security for the Secured Obligations or
any right of offset with respect thereto, and any failure by the Collateral
Agent to make any such demand, to pursue such other rights or remedies or to
collect any payments from any Person or to realize upon any such collateral
security or to exercise any such right of offset, or any release of any Person
or any such collateral security or right of offset, shall not relieve the
Grantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Collateral Agent against the Grantor. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
6.7
Deficiency
. The Grantor shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to pay its
Secured Obligations and the fees and disbursements of any attorneys employed
by any CA Secured Party to collect such deficiency.
SECTION 7. THE COLLATERAL AGENT
7.1 Collateral
Agent's Appointment as Attorney-in-Fact, etc.
(a) The Grantor hereby irrevocably appoints the Collateral Agent and any
officer or agent thereof in its capacity as an officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full
power and authority in the place and stead of the Grantor and in the name of
the Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute
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US-DOCS\149536231.6
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any and all documents and instruments which may be necessary to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, the Grantor hereby gives the Collateral Agent the power and right,
on its behalf, without notice to or assent by the Grantor, to do any or all of
the following:
(i) in the name of the Grantor or its own name, or otherwise, take
possession of and endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of money due constituting Collateral or
with respect to any other Collateral and file any claim or take any other
action or proceeding in any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose of collecting any and all
such moneys due or with respect to any other Collateral whenever payable;
(ii) [reserved];
(iii) pay or discharge taxes, assessments, charges, fees, Liens, security
interests or other encumbrances levied or placed on or threatened against the
Collateral, effect any repairs or any insurance, and pay all or any part of
the premiums therefor and the costs thereof;
provided
,
however
, that nothing in this paragraph shall be interpreted as excusing the Grantor
from the performance of, or imposing any obligation on the Collateral Agent or
any CA Secured Party to cure or perform, any covenants or other promises of
the Grantor with respect to taxes, assessments, charges, fees, Liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Loan Documents;
(iv) execute, in connection with the exercise of any right or remedy
provided for in
Section 6
, any endorsements, assignments or other instruments of conveyance or transfer
with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral
to make payment of any and all moneys due or to become due thereunder directly
to the Collateral Agent or as the Collateral Agent shall direct; (2) ask or
demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect
of or arising out of any Collateral and to give discharges and releases of all
or any of the Collateral; (3) sign and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in connection
with any of the Collateral; (4) [reserved]; (5) commence and prosecute any
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to enforce
any other right in respect of any Collateral; (6) defend any suit, action or
proceeding brought against the Grantor with respect to any Collateral; (7)
settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the Collateral Agent
may deem appropriate; (8) [reserved]; and (9) generally, sell, transfer,
pledge and make any agreement with respect to, or consent to any use of cash
collateral arising in respect of, or otherwise deal with any of the Collateral
as fully and completely as though the Collateral Agent were the absolute owner
thereof for all purposes, and do, at the Collateral Agent's option and the
Grantor's expense, at any time, or from time to time, all acts and things
which the Collateral Agent reasonably deems necessary to protect, preserve or
realize upon the Collateral and the CA Secured Parties' security interests
therein and to effect the intent of this Agreement, all as fully and
effectively as the Grantor might do.
Anything in this
Section 7.1(a)
to the contrary notwithstanding, the Collateral Agent agrees that, except as
expressly provided in
Section 7.1(b)
, it will not exercise any rights under the power of
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attorney provided for in this
Section 7.1(a)
unless an Event of Default shall have occurred and be continuing.
(b) If the Grantor fails to perform or comply with any of its agreements
contained herein, the Collateral Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement;
provided
,
however
, that unless an Event of Default under the ABL Credit Agreement (including a
"Purchase and Contribution Termination Event" under the Borrower Purchase
Agreement) has occurred and is continuing or time is of the essence, the
Collateral Agent shall not exercise this power without first making written
demand on the Grantor and the Grantor failing to comply therewith within a
reasonable period of time after such receipt of such written demand.
(c) The reasonable and documented out-of-pocket expenses of the Collateral
Agent incurred in connection with actions undertaken as provided in this
Section 7.1
shall be payable by the Grantor to the Collateral Agent on demand.
(d) Each CA Secured Party, by its authorization of the Collateral Agent's
entering into this Agreement, consents to the exercise by the Collateral Agent
of any power, right or remedy provided for herein. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until the termination of this Agreement.
7.2
Duty of
Collateral
Agent
. Neither the Collateral Agent nor any other CA Secured Party nor any of their
respective officers, directors, partners, employees, agents, attorneys and
other advisors, attorneys-in-fact or affiliates shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof. The
powers conferred on the CA Secured Parties hereunder are solely to protect the
CA Secured Parties' interests in the Collateral and shall not impose any duty
upon any CA Secured Party to exercise any such powers. The CA Secured Parties
shall be accountable only for amounts that they actually receive as a result
of the exercise of such powers, and neither they nor any of their officers,
directors, partners, employees, agents, attorneys and other advisors,
attorneys-in-fact or affiliates shall be responsible to the Grantor for any
act or failure to act hereunder, except to the extent that any such act or
failure to act is found by a final and unappealable decision of a court of
competent jurisdiction to have resulted directly from their own gross
negligence, bad faith or willful misconduct (including a material breach of
their obligations under the Loan Documents).
7.3
Execution of Financing Statements
. The Grantor hereby authorizes the Collateral Agent to file or record
financing or continuation statements, and amendments thereto, and other filing
or recording documents or instruments with respect to the Collateral in such
form and in such offices as the Collateral Agent reasonably determines
appropriate to perfect or maintain the perfection of the security interests of
the Collateral Agent under this Agreement. The Grantor agrees that such
financing statements may describe the Collateral in this Agreement or such
other description as the Collateral Agent reasonably determines is necessary
or advisable. The Grantor also ratifies its authorization for the Collateral
Agent to file in any relevant jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.
7.4
Authority of
Collateral
Agent
. The Grantor acknowledges that the rights and responsibilities of the
Collateral Agent under this Agreement with respect to any action taken by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
Collateral Agent and the other CA Secured Parties, be governed by the ABL
Credit
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Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Collateral Agent and the Grantor,
the Collateral Agent shall be conclusively presumed to be acting as agent for
the CA Secured Parties with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
SECTION 8. [RESERVED]
SECTION 9. MISCELLANEOUS
9.1
Amendments in Writing
. None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by written agreement between the
Grantor and the Collateral Agent;
provided
that the Schedules to this Agreement may be amended or supplemented by the
Grantor at any time by delivering such amended or supplemented schedule to the
Collateral Agent.
9.2
Notices
. All notices, requests and demands to or upon the Collateral Agent or the
Grantor hereunder shall be effected in the manner provided for in Section 9.1
of the ABL Credit Agreement. All notices and other communications hereunder
shall be made as follows:
if to the Grantor, at:
HE AR INTER LLC
c/o Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
with copies (which shall not constitute notice) to:
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
if to the Collateral Agent, at:
Barclays Bank PLC
US Originations - Agency
745 7
th
Ave
New York, NY 10019
Attention: Arup Ghosh
Telephone: (201) 499-8490
Email: arup.ghosh@barclays.com and bdmabl2@barclays.com
with copies to (which shall not constitute notice) to:
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Jennifer Buczek Ezring
Telephone: 212-906-1633
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US-DOCS\149536231.6
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9.3
No Waiver by Course of Conduct; Cumulative Remedies
. No act, delay, indulgence or omission of the Collateral Agent, or otherwise,
be deemed to have waived any right or remedy hereunder or to have acquiesced
in any default hereunder or under the ABL Credit Agreement or any other Loan
Document. No failure to exercise, nor any delay in exercising, on the part of
the Collateral Agent, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the
Collateral Agent of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which such Person would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive
of any other rights or remedies provided by law.
9.4
Enforcement Expenses; Indemnification
. (a) The Grantor agrees to pay or reimburse the Collateral Agent for all its
reasonable and documented out-of-pocket costs and expenses incurred in
enforcing or preserving any rights under this Agreement and the other Loan
Documents to which the Grantor is a party to the extent the Grantor would be
required to do so pursuant to Section 9.3 of the ABL Credit Agreement as if
the Grantor were the "Borrower" thereunder, including the reasonable and
documented out-of-pocket fees and disbursements and other charges of such
legal counsel to the Collateral Agent and the CA Secured Parties as the
Grantor would be required to pay or reimburse pursuant to Section 9.3 of the
ABL Credit Agreement.
(b) Subject to Section 9.3 of the ABL Credit Agreement (as if the Grantor
were the "Borrower" thereunder), the Grantor agrees to pay, and to hold the
Collateral Agent harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, court or documentary,
intangible, recording, filing or similar taxes which may be payable or
determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement, in
each case, to the extent the Grantor would be required to do so pursuant to
Section 2.16(b) of the ABL Credit Agreement (as if it the Grantor were the
"Borrower" thereunder).
(c) The Grantor agrees to pay, and to hold the Lenders and the Collateral
Agent harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable and documented out-of-pocket
costs and expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, in each case, to the extent the Grantor would be required
to do so pursuant to Section 9.3 of the ABL Credit Agreement (as if the
Grantor were the "Borrower" thereunder).
(d) The Grantor agrees that the provisions of Section 9.3(c) and (d) of the
ABL Credit Agreement are incorporated herein by reference,
mutatis mutandis
.
9.5
Successors and Assigns
. This Agreement shall be binding upon the successors and assigns of the
Grantor and shall inure to the benefit of the Collateral Agent for the benefit
of the CA Secured Parties and their successors and assigns; provided that the
Grantor may not assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Collateral Agent.
9.6
[Reserved]
.
9.7
Counterparts
. This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement shall become effective when it shall have been executed by the
Collateral Agent and when the Collateral Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter
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US-DOCS\149536231.6
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shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by facsimile or other electronic transmission
(
e.g
., "PDF" or "TIFF") shall be effective as delivery of a manually executed
counterpart of this Agreement. The words "execution," "signed," "signature,"
and words of like import in this Agreement or in any amendment or other
modification hereof (including waivers and consents) shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any
applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state Laws based on the Uniform Electronic
Transactions Act.
9.8
Severability
. Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof;
and the invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction.
9.9
Section Headings
. Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
9.10
Integration
. The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights or remedies
provided by Law or any Loan Document.
9.11
Governing Law
. This Agreement 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 and the transactions contemplated hereby shall be
construed in accordance with and governed by the law of the State of New York.
9.12
Submission to Jurisdiction; Waivers
. (a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding shall be
heard and determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Notwithstanding the foregoing, the Collateral Agent may bring
an action or proceeding against any Collateral in a jurisdiction where such
Collateral is located.
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
court referred to in
paragraph (a)
of this
Section 9.12
. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
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US-DOCS\149536231.6
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(c) Each of the parties hereto irrevocably consents to service of process
in the manner provided for notices in
Section 9.2
. Nothing in this Agreement or any other Loan Document will affect the right
of any party to this Agreement to serve process in any other manner permitted
by law.
9.13
Releases
. (a) Upon the Discharge of Obligations, this Agreement and the Liens granted
hereby shall automatically terminate and be released, without the requirement
for any further action by any Person, and the Collateral Agent shall promptly
(and each CA Secured Party, by its authorization of the Collateral Agent's
entering into this Agreement, hereby authorizes the Collateral Agent to) take
such actions and execute any such documents as may be reasonably requested by
the Grantor and at the Grantor's expense to further document and evidence such
termination and release.
(b) [Reserved].
(c) All releases or other documents delivered by the Collateral Agent
pursuant to this
Section 9.13
shall be without recourse to, or warranty by, the Collateral Agent.
9.14
No Fiduciary Duty
. The Grantor agrees that the provisions of Section 9.16 of the ABL Credit
Agreement are incorporated herein by reference,
mutatis mutandis
.
9.15
No Proceeding, Limited Recourse
. The Collateral Agent hereby agrees that it will not institute, or join any
other Person in instituting, any insolvency proceeding against the Grantor.
The Collateral Agent further agrees that notwithstanding any provisions
contained in this Agreement to the contrary, the liability of the Grantor
under this Agreement is limited to the Collateral and the proceeds, if any,
realized by the Collateral Agent from the Collateral, and no action or
proceeding shall be brough by the Collateral Agent or any CA Secured Party
against the Grantor or against any of its assets (other than the Collateral)
under this Agreement (other than an action or proceeding to enforce all of the
rights and remedies under this Agreement which the Collateral Agent now has or
may hereafter have against the Collateral).
9.16
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
9.17
Process Agent
. The Grantor irrevocably and unconditionally appoints HE AR BRWR LLC, a
Delaware limited liability company, with an office on the date hereof at 1099
Alakea Street, Suite 2200, Honolulu, Hawaii 96813, and its successors
hereunder (in each case, and in such capacity, the "
Process Agent
"), as its agent to receive on behalf of the Grantor and its property all
writs, claims, process, and summonses in any action or proceeding brought
against it in the State of New York. Such service may be made by mailing or
delivering a copy of such process to the Grantor in care of the Process Agent
at the address specified above for the Process Agent, and the Grantor
irrevocably authorizes and directs the Process Agent to accept such service on
its behalf. Failure by the Process Agent to give notice to the Grantor, or
failure of the Grantor to receive notice of such service of process shall not
impair or affect the validity of such service on the Process Agent or the
Grantor, or of any judgment based thereon. The Grantor
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US-DOCS\149536231.6
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covenants and agrees that it shall take any and all reasonable action,
including the execution and filing of any and all documents, that may be
necessary to continue the designation of the Process Agent above in full force
and effect, and to cause the Process Agent to act as such. Nothing herein
shall in any way be deemed to limit the ability to serve any such writs,
process or summonses in any other manner permitted by applicable law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US-DOCS\149536231.6
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
HE AR INTER LLC, as Grantor
By:
Name:
Title:
[
Signature Page to Intermediate Pledge Agreement
]
-------------------------------------------------------------------------------
BARCLAYS BANK PLC
,
as Collateral Agent
By:
Name:
Title:
[
Signature Page to Intermediate Pledge Agreement
]
-------------------------------------------------------------------------------
Schedules to
ABL Collateral Agreement
Schedule 1
Description of Collateral
PLEDGED LLC INTERESTS
Debtor/Grantor Issuer Type of # of Membership Total Membership % of Interests Certificate
Organization Interests Owned Interests Pledged No. (if
Outstanding uncertificated
please
indicate so)
HE AR INTER LLC HE AR BRWR LLC Limited Liability 100% N/A 100% Uncertificated
Company
US-DOCS\149536231.6
-------------------------------------------------------------------------------
Schedules to
ABL Collateral Agreement
Schedule 2
Filings and Other Actions Required to Perfect Security Interests
Type of Filing Entity Applicable Jurisdictions
Collateral Document
Mortgage, Security
Agreement or Other
UCC-1 Financing HE AR INTER LLC Collateral Agreement Delaware
US-DOCS\149536231.6
-------------------------------------------------------------------------------
Schedules to
ABL Collateral Agreement
Schedule 3
Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive
Office
Name Chief Executive Office Jurisdiction Tax ID Organizational Numbers
Number
HE AR INTER LLC 1099 Alakea Street, Suite 2200, Honolulu, Hawaii Delaware EIN: 99- 3307664
96813 2525201
US-DOCS\149536231.6
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EXHIBIT 1
[Form of]
ISSUER'S ACKNOWLEDGMENT
The undersigned hereby (i) acknowledges receipt of the Collateral Agreement
(as amended, amended and restated, supplemented or otherwise modified from
time to time, the "
Collateral Agreement
"; capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Collateral Agreement), dated as of May
17, 2024, made by HE AR INTER LLC, a Delaware corporation (the "
Grantor
"), in favor of BARCLAYS BANK PLC, as administrative agent and collateral
agent (together with its successors and permitted assigns in such capacities,
the "Collateral
Agent
"), (ii) agrees promptly to note on its books the security interests granted
to the Collateral Agent and confirmed under the Collateral Agreement, (iii)
agrees that it will comply with instructions of the Collateral Agent with
respect to the applicable Collateral (including all Capital Stock of the
undersigned) without further consent by the Grantor upon the occurrence and
during the continuation of an Event of Default, (iv) agrees to notify the
Collateral Agent upon obtaining knowledge of any interest in favor of any
person in the Collateral that is adverse to the interest of the Collateral
Agent therein and (v) waives any right or requirement at any time hereafter to
receive a copy of the Collateral Agreement in connection with the registration
of any Collateral thereunder in the name of the Collateral Agent or its
nominee or the exercise of voting rights by the Collateral Agent or its
nominee.
HE AR BRWR LLC
By:
Name:
Title:
US-DOCS\149536231.6
-------------------------------------------------------------------------------
EXHIBIT B
to the ABL
Credit Agreement
[FORM OF]
COMPLIANCE CERTIFICATE
This Compliance Certificate (this "
Certificate
") is delivered pursuant to
Section 5.1(b)
of the ABL Credit Agreement, dated as of May 17, 2024 (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time,
the "
Credit Agreement
"), among HE AR BRWR LLC, a Delaware limited liability company (the "
Borrower
"), the several banks and financial institutions from time to time party
thereto and BARCLAYS BANK PLC, as administrative agent and as collateral
agent, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as co-collateral agent.
Capitalized terms used and not defined herein have the meanings given to such
terms in the Credit Agreement.
1. I am the duly elected, qualified and acting [
]
1
of the Borrower.
2. I have reviewed and am familiar with the contents of this Certificate.
3. I have reviewed the terms of the Credit Agreement and the other Loan
Documents and have made, or caused to be made under my supervision, a review
in reasonable detail of the transactions and condition of the Company and its
Subsidiaries during the [Fiscal Year][Fiscal Quarter] covered by the financial
statements required to be furnished pursuant to
Section 5.1(a)
[(i)
/ (ii)] of the Credit Agreement attached hereto as
Attachment 1
(the "
Financial Statements
"). [Except as specified on
Attachment 2
,]
2
[S][s]uch review did not disclose the existence during or at the end of the
[Fiscal Year][Fiscal Quarter] covered by the Financial Statements, and I have
no knowledge of the existence, as of the date of this Certificate, of any
continuing Event of Default.
4. Attached hereto as
Attachment 3
is a calculation of the Consolidated Fixed Charge Coverage Ratio calculated as
of the last day of the [Fiscal Year][Fiscal Quarter] covered by the Financial
Statements.
[
Signature page follows
]
________________________________
1
Insert title of Responsible Officer. "Responsible Officer" means: the chief
executive officer, president, vice president, chief financial officer, chief
administrative officer, secretary or assistant secretary, treasurer or
assistant treasurer, controller or other similar officer of any Person or any
other Responsible Officer or employee of such Person designated in or pursuant
to an agreement between such Person and the Administrative Agent.
2
Attachment 2 should be included if there is any Event of Default.
B-1
US-DOCS\149007241.10
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IN WITNESS WHEREOF, the undersigned has executed this Certificate this
day of
, 20
in the name of and on behalf of the Borrower.
HE AR INTER LLC
By:
Name:
Title:
B-2
US-DOCS\149007241.10
-------------------------------------------------------------------------------
Attachment 1
of Exhibit B
The information described herein pertains to the [Fiscal Quarter / Fiscal
Year] ended
,
20
.
[Attach Financial Statements.]
1-B-1
US-DOCS\149007241.10
-------------------------------------------------------------------------------
Attachment 2
of Exhibit B
[Description of Event of Default, if applicable]
[Specify the nature and extent thereof and any action taken or proposed to be
taken with respect
thereto]
2-B-1
US-DOCS\149007241.10
-------------------------------------------------------------------------------
Attachment 3
of Exhibit B
The information described herein pertains to the [Fiscal Quarter / Fiscal
Year] ended
,
20
.
[Set forth calculation of the Consolidated Fixed Charge Coverage Ratio.]
3-B-1
US-DOCS\149007241.10
-------------------------------------------------------------------------------
Exhibit C
to ABL
Credit Agreement
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "
Assignment and Assumption
") is dated as of the Effective Date set forth below and is entered into
between the Assignor named below (the "
Assignor
") and the Assignee named below (the "
Assignee
"). Capitalized terms used but not defined herein shall have the meanings
given to them in the Credit Agreement (as defined below), receipt of a copy of
which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in
Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns
to the Assignee, and the Assignee hereby irrevocably purchases and assumes
from the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent below (i) all of the Assignor's rights and obligations in
its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including any letters of credit and guarantees included in such facilities)
and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold
and assigned pursuant to
clause (i)
above (the rights and obligations sold and assigned pursuant to
clauses (i)
and
(ii)
above being referred to herein collectively as the "
Assigned Interest
"). Such sale and assignment is without recourse to the Assignor and, except
as expressly provided in this Assignment and Assumption, without representation
or warranty by the Assignor.
1. Assignor:
2. Assignee:
[and is an Affiliate/Approved Fund of [
identify Lender
]]
1
3 Borrower: HE AR BRWR LLC
4 Administrative Barclays Bank PLC, as Administrative
Agent: Agent under the Credit Agreement
5. Credit Agreement: The ABL Credit Agreement, dated as of May 17, 2024 (as amended, restated, amended
and restated, supplemented or otherwise modified from time to time, the "
Credit Agreement
"), among HE AR BRWR LLC, the several banks and other financial institutions from
time to time party thereto, BARCLAYS BANK PLC, as administrative agent (in such
1
Select as applicable.
C-1
US-DOCS\149007241.10
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capacity, together with its successors and permitted assigns, the "
Administrative Agent
") and as collateral agent, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as co-collateral agent.
6. Assigned Interest:
Class Aggregate Amount of Amount of Percentage Assigned of
2 Commitment/Loans for Commitment/Loans Commitment/Loans
all Lenders Assigned 4
3
$ $ %
$ $ %
$ $ %
Effective Date:
, 20
[TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE
DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee (if it is not a Lender) agrees to deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or
more credit contacts to whom all syndicate-level information (which may
contain material non-public information about the Borrower, the Company and
their Subsidiaries and their related parties or their respective securities)
will be made available and who may receive such information in accordance with
the assignee's compliance procedures and applicable laws, including federal
and state securities laws.
[
Signature page follows
]
2
Specify the Class of assigned Commitments or Loans.
3
Except (i) in the case of an assignment of the entire remaining amount of the
Assignor's Revolving Credit Commitment or Loans or assignments to a Lender or
an Affiliate or branch of a Lender and (ii) if no Event of Default has
occurred and is continuing, the assignment of an amount less than $5,000,000
will require the consent of the Borrower and the Administrative Agent.
4
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all Lenders.
C-2
US-DOCS\149007241.10
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The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
NAME OF ASSIGNOR
By:
Name:
Title:
ASSIGNEE
NAME OF ASSIGNEE
By:
Name:
Title:
C-3
US-DOCS\149007241.10
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[Consented to and]
5
Accepted:
BARCLAYS BANK PLC,
as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
5
To be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.
C-4
US-DOCS\149007241.10
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[Consented to:
HE AR BRWR LLC, as the Borrower
By:
Name:
Title:]
6
6
To be added only if the consent of Borrower is required by the terms of the
Credit Agreement.
C-5
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ANNEX 1
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
1.
Representations and Warranties
.
1.1
Assignor
. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim, (iii) it has full
power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and (iv) it is [not] a Defaulting Lender and (b) assumes
no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower or Affiliates or any
other Person obligated in respect of any Loan Document or (iv) the performance
or observance by the Borrower or Affiliates or any other Person of any of
their respective obligations under any Loan Document or any other instrument
or documents furnished pursuant hereto or thereto.
1.2
Assignee
. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it satisfies
the requirements, if any, specified in the Credit Agreement that are required
to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the
type represented by the Assigned Interest and either it, or the person
exercising discretion in making its decision to acquire the Assigned Interest,
is experienced in acquiring assets of such type, (v) it has received a copy of
the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to
Section 5.1
thereof, and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, (vi) it is not a Disqualified Lender
or an Affiliate of a Disqualified Lender and (vii) attached to the Assignment
and Assumption is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the Loan
Documents, (ii) that it appoints and authorizes the Administrative Agent to
take such action on its behalf and to exercise such powers under the Credit
Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto and (iii) it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required
to be performed by it as a Lender.
2.
Payments
. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have
accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.
Annex 1-1
US-DOCS\149007241.10
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3.
General Provisions
. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
This Assignment and Assumption may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by email or
telecopy or other electronic method shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Annex 1-2
US-DOCS\149007241.10
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EXHIBIT D
to the ABL
Credit Agreement
[FORM OF]
SOFR NOTICE
BARCLAYS BANK PLC, as Administrative Agent
US Originations - Agency
745 7
th
Ave
New York, NY 10019
Attn: Arup Ghosh
Telephone: (201) 499-8490
HE AR BRWR LLC
[ ], 20[ ]
1
Ladies and Gentleman:
Reference is made to that certain ABL Credit Agreement, dated as of May 17,
2024 (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the "
Credit
Agreement
"), among HE AR BRWR LLC (the "
Borrower
"), the several banks and other financial institutions from time to time party
thereto and BARCLAYS BANK PLC, as administrative agent (the "
Administrative Agent
") and as collateral agent, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
co-collateral agent.
The undersigned hereby gives the Administrative Agent irrevocable notice
pursuant to
Section 2.10
of the Credit Agreement of an interest rate election, and in that connection
sets forth below the terms thereof:
1. $[
] of the presently outstanding principal amount of the Revolving Credit Loans
originally made on [
],
2. and all presently being maintained as [Base Rate Loans] [Term SOFR Loans],
3. be [converted into] [continued as],
4. Term SOFR Loans having an Interest Period of [one/three/six months].
2
The undersigned hereby certifies that the foregoing [conversion] [continuation]
complies with the terms and conditions of the Credit Agreement (including,
without limitation,
Section 2.10
of the Credit Agreement).
[Signature Page Follows]
________________________________
1
The Interest Election Request shall be delivered not later than 3:00 p.m. (New
York City time) three U.S. Government Securities Business Days prior to the
commencement of the proposed Interest Period. The requested date must be a
Business Day.
2
If no Interest Period is specified, then Borrower shall be deemed to have
selected an Interest Period of one month.
D-1
US-DOCS\149007241.10
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The Borrower has hereby caused this Interest Election Request to be duly
executed by its respective authorized officer as of the date first written
above.
HE AR BRWR LLC
By:
Name:
Title:
D-2
US-DOCS\149007241.10
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EXHIBIT E
to the ABL
Credit Agreement
[FORM OF]
REVOLVING CREDIT NOTE
$[ ] New York, New York
[ ]
FOR VALUE RECEIVED, the undersigned (including its permitted successors, the "
Borrower
"), hereby unconditionally promises to pay to [
] (the "
Lender
") or its registered assigns at the office of the Administrative Agent
specified in the Credit Agreement (as hereinafter defined) in lawful money of
the United States in immediately available funds, the original principal
amount of (a) [
] DOLLARS ($[
]) (consisting of Revolving Credit Loans in an original principal amount of [
] DOLLARS ($[
])) or, if less, (b) the aggregate unpaid principal amount of all Revolving
Credit Loans (as defined in the Credit Agreement) owing by the Borrower to the
Lender pursuant to the Credit Agreement. The principal amount shall be paid on
the applicable dates specified in the Credit Agreement. The Borrower further
agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the applicable rates and on the
applicable dates specified in the Credit Agreement.
The holder of this Revolving Credit Note (this "
Note
") is authorized to endorse on the schedules annexed hereto and made a part
hereof or on a continuation thereof which shall be attached hereto and made a
part hereof the date, Class, Type and amount of each Revolving Credit Loan
made pursuant to the Credit Agreement and the date and amount of each payment
or prepayment of principal thereof, each continuation thereof, each conversion
of all or a portion thereof to another Type and, in the case of Eurodollar
Loans, the length of each Interest Period with respect thereto. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed absent manifest error. The failure to make any such
endorsement or any error in any such endorsement shall not affect the
obligations of the Borrower in respect of any Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the ABL Credit Agreement,
dated as of May 17, 2024 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the "
Credit Agreement
"), among HE AR BRWR LLC, the several banks and other financial institutions
from time to time party thereto and BARCLAYS BANK PLC, as administrative agent
(the "
Administrative
Agent
") and as collateral agent and WELLS FARGO BANK, NATIONAL ASSOCIATION, as co-
collateral agent, (b) is subject to the provisions of the Credit Agreement
which are hereby incorporated herein by reference and (c) is subject to
prepayment in whole or in part as provided in the Credit Agreement. This Note
is secured and guaranteed as provided in the Loan Documents. Reference is
hereby made to the Loan Documents for a description of the properties and
assets in which a security interest has been granted, the nature and extent of
the security and the guarantees, the terms and conditions upon which the
security interests and each guarantee were granted and the rights of the
holder of this Note in respect thereof.
The principal balance of the Revolving Credit Loans owing to the Lender, the
rates of interest applicable thereto and the date and amount of each payment
made on account of the principal thereof, shall be recorded by the Lender on
its books; provided that the failure of the Lender to make any such recordation
E-1
US-DOCS\149007241.10
-------------------------------------------------------------------------------
or any error therein shall not in any manner affect the obligation of the
Borrower to make a payment when due of any amount owing under the Credit
Agreement or this Note.
Upon the occurrence and during the continuation of any one or more Events of
Default, all principal and all accrued interest then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all
as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive to the
extent permitted by applicable law presentment, demand, protest and all other
notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT
AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 9.4 OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK. SECTION 9.10 OF THE CREDIT AGREEMENT IS INCORPORATED BY
REFERENCE,
MUTATIS MUTANDIS
.
In the event of any conflict between the terms of this Note and the Credit
Agreement, the Credit Agreement shall govern and control in all respects.
[Signature page follows]
E-2
US-DOCS\149007241.10
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have hereby caused this Note to be duly
executed by their respective authorized officers as of the day and year first
above written.
HE AR BRWR LLC
By:
Name:
Title:
E-3
[
Signature Page to Revolving Credit Note
]
-------------------------------------------------------------------------------
Schedule A
to Revolving Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Date Class Amount of Amount Amount of Amount of Base Unpaid Principal Notation Made
Base Rate Loans Converted to Principal of Base Rate Loans Balance of Base By
Base Rate Loans Rate Loan Converted to Rate Loans
Repaid Term SOFR
Loans
E-4
Schedule A
-------------------------------------------------------------------------------
Schedule B
to Revolving Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF TERM SOFR LOANS
Interest Period Amount of
and adjusted Term SOFR Unpaid
Amount Term SOFR Amount of Loans Principal
Amount of Converted to Rate with Principal of Converted to Balance of
Term SOFR Term SOFR Respect Term SOFR Base Rate Term SOFR Notation
Date Class Loans Loans Thereto Loans Repaid Loans Loans Made By
E-5
Schedule B
-------------------------------------------------------------------------------
EXHIBIT F-1
to the ABL
Credit Agreement
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of May 17, 2024
(as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the "
Credit
Agreement
"), among HE AR BRWR LLC, the several banks and other financial institutions
from time to time party thereto, Barclays Bank PLC, as administrative agent
(the "
Administrative Agent
") and collateral agent, and Wells Fargo Bank, National Association as
co-collateral agent.
Pursuant to the provisions of
Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record and beneficial owner of the Loan(s) (as well as any Note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate,
(ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,
(iii) it is not a ten percent shareholder of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code, (iv) it is not a controlled foreign
corporation related to the Borrower as described in Section 881(c)(3)(C) of
the Code and (v) no payments under any Loan Documents are effectively
connected with the undersigned's conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrower with a
certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E (or any
successor form), as applicable. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, or if
a lapse in time or change in circumstances renders the information on this
certificate obsolete, expired or inaccurate in any respect, the undersigned
shall promptly so inform the Borrower and the Administrative Agent in writing
and deliver promptly to the Borrower and the Administrative Agent an updated
certificate or other appropriate documentation (including any new
documentation reasonably requested by the Borrower or the Administrative
Agent) or promptly notify the Borrower and the Administrative Agent in writing
of its legal ineligibility to do so, and (2) the undersigned shall have at all
times furnished the Borrower and the Administrative Agent with a properly
completed and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two
calendar years preceding each such payment.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:
Name:
Title:
Date: , 20[ ]
F-1-1
US-DOCS\149007241.10
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EXHIBIT F-2
to the ABL
Credit Agreement
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income
Tax Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of May 17, 2024
(as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the "
Credit
Agreement
"), among HE AR BRWR LLC, the several banks and other financial institutions
from time to time party thereto, Barclays Bank PLC, as administrative agent
(the "
Administrative Agent
") and collateral agent, and Wells Fargo Bank, National Association as
co-collateral agent.
Pursuant to the provisions of
Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record and beneficial owner of the participation in respect of which it
is providing this certificate, (ii) it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of
the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (iv) it
is not a controlled foreign corporation related to the Borrower as described
in Section 881(c)(3)(C) of the Code and (v) no payments under any Loan
Documents are effectively connected with the undersigned's conduct of a U.S.
trade or business.
The undersigned has furnished its participating Lender with a certificate of
its non-US Person status on IRS Form W-8BEN or W-8BEN-E (or any successor
form), as applicable. By executing this certificate, the undersigned agrees
that (1) if the information provided on this certificate changes, or if a
lapse in time or change in circumstances renders the information on this
certificate obsolete, expired or inaccurate in any respect, the undersigned
shall promptly so inform such Lender in writing and deliver promptly to such
Lender an updated certificate or other appropriate documentation (including
any new documentation reasonably requested by such Lender) or promptly notify
such Lender in writing of its legal ineligibility to do so, and (2) the
undersigned shall have at all times furnished such Lender with a properly
completed and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two
calendar years preceding each such payment.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: , 20[ ]
F-2-1
US-DOCS\149007241.10
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EXHIBIT F-3
to the ABL
Credit Agreement
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of May 17, 2024
(as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the "
Credit
Agreement
"), among HE AR BRWR LLC, the several banks and other financial institutions
from time to time party thereto, Barclays Bank PLC, as administrative agent
(the "
Administrative Agent
") and collateral agent, and Wells Fargo Bank, National Association as
co-collateral agent.
Pursuant to the provisions of
Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record owner of the participation in respect of which it is providing
this certificate, (ii) its direct or indirect partners/members are the sole
beneficial owners of such participation, (iii) neither the undersigned nor any
of its direct or indirect partners/members claiming the portfolio interest
exemption is a bank within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its direct or indirect partners/members claiming the portfolio
interest exemption is a ten percent shareholder of the Borrower within the
meaning of Section 881(c)(3)(B) of the Code, (v) none of its direct or
indirect partners/members claiming the portfolio interest exemption is a
controlled foreign corporation related to the Borrower as described in Section
881(c)(3)(C) of the Code and (vi) no payments under any Loan Documents are
effectively connected with a U.S. trade or business conducted by the
undersigned or its direct or indirect partners/members claiming the portfolio
interest exemption.
The undersigned has furnished its participating Lender with IRS Form W-8IMY
(or any successor form) accompanied by one of the following forms from each of
its direct or indirect partners/members that is claiming the portfolio
interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable or (ii)
an IRS Form W-8IMY (accompanied by an IRS Form W-8BEN or W-8BEN-E, as
applicable, from each of such partner's/member's beneficial owners that is
claiming the portfolio interest exemption), or in each case any successor
form. By executing this certificate, the undersigned agrees that (1) if the
information provided on this certificate changes, or if a lapse in time or
change in circumstances renders the information on this certificate obsolete,
expired or inaccurate in any respect, the undersigned shall promptly so inform
such Lender in writing and deliver promptly to such Lender an updated
certificate or other appropriate documentation (including any new
documentation reasonably requested by such Lender) or promptly notify such
Lender in writing of its legal ineligibility to do so, and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and
currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar
years preceding each such payment.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
F-3-1
US-DOCS\149007241.10
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Date: , 20[ ]
F-3-2
US-DOCS\149007241.10
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EXHIBIT F-4
to the ABL
Credit Agreement
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of May 17, 2024
(as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the "
Credit
Agreement
"), among HE AR BRWR LLC, the several banks and other financial institutions
from time to time party thereto, Barclays Bank PLC, as administrative agent
(the "
Administrative Agent
") and collateral agent, and Wells Fargo Bank, National Association as
co-collateral agent.
Pursuant to the provisions of
Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record owner of the Loan(s) (as well as any Note(s) evidencing such
Loan(s)) in respect of which it is providing this certificate, (ii) its direct
or indirect partners/members are the sole beneficial owners of such Loan(s)
(as well as any Note(s) evidencing such Loan(s)), (iii) neither the
undersigned nor any of its direct or indirect partners/members claiming the
portfolio interest exemption is a bank within the meaning of Section
881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members
claiming the portfolio interest exemption is a ten percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code, (v) none of
its direct or indirect partners/members claiming the portfolio interest
exemption is a controlled foreign corporation related to the Borrower as
described in Section 881(c)(3)(C) of the Code and (vi) no payments under any
Loan Documents are effectively connected with a U.S. trade or business
conducted by the undersigned or its direct or indirect partners/members
claiming the portfolio interest exemption.
The undersigned has furnished the Administrative Agent and the Borrower with
IRS Form W- 8IMY (or any successor form) accompanied by one of the following
forms from each of its direct or indirect partners/members that is claiming
the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN- E, as
applicable or (ii) an IRS Form W-8IMY(accompanied by an IRS Form W-8BEN or
W-8BEN-E, as applicable, from each of such partner's/member's beneficial
owners that is claiming the portfolio interest exemption), or in each case any
successor form. By executing this certificate, the undersigned agrees that (1)
if the information provided on this certificate changes, or if a lapse in time
or change in circumstances renders the information on this certificate
obsolete, expired or inaccurate in any respect, the undersigned shall promptly
so inform the Borrower and the Administrative Agent in writing and deliver
promptly to the Borrower and the Agent an updated certificate or other
appropriate documentation (including any new documentation reasonably
requested by the Borrower or the Agent) or promptly notify the Borrower and
the Administrative Agent in writing of its legal ineligibility to do so, and
(2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to
the undersigned, or in either of the two calendar years preceding each such
payment.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
F-4-1
US-DOCS\149007241.10
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[NAME OF LENDER]
By:
Name:
Title:
Date: , 20[ ]
F-4-2
US-DOCS\149007241.10
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EXHIBIT G
to the ABL
Credit Agreement
[FORM OF]
BORROWING REQUEST
[Date]
BARCLAYS BANK PLC, as Administrative Agent
US Originations - Agency
745 7
th
Ave
New York, NY 10019
Attn: Arup Ghosh
Telephone: (201) 499-8490
HE AR BRWR LLC
Ladies and Gentlemen:
Pursuant to
Section 2.2
of that certain ABL Credit Agreement, dated as of May 17, 2024 (as amended,
restated, amended and restated, supplemented or otherwise modified from time
to time, the "
Credit Agreement
"; capitalized terms used but not defined herein having the meanings given
such terms in the Credit Agreement), among HE AR BRWR LLC, the several banks
and other financial institutions from time to time party thereto, Barclays
Bank PLC, as administrative agent and collateral agent, and Wells Fargo Bank,
National Association as co-collateral agent, the Borrower hereby requests a
Revolving Credit Loan under the Credit Agreement, and in that connection sets
forth below the information relating to such Revolving Credit Loan:
[TRANCHE A LOAN] / [TRANCHE B LOAN]
1
1. The Borrower with respect to the proposed Revolving Credit Loan is HE AR
BRWR LLC.
2. The requested date for the borrowing of the proposed Revolving Credit
Loan is [ ] (the "
Funding Date
").
2
3. The Type of the proposed Revolving Credit Loan is a [Base Rate Loan]
[Term SOFR Loan],
4. The borrowing is a [Short-Term Borrowing] [Long-Term Borrowing],
5. The aggregate principal amount of the proposed Revolving Credit Loan is $[
].
6. [The initial Interest Period for each Term SOFR Borrowing made as part
of the proposed Revolving Credit Loan is [one / three / six] month[s].]
1
Repeat instructions 1-8 for each additional tranche borrowing made on the same
date.
2
The Borrowing Request shall be delivered not later than (i) 3:00 p.m. (New
York City time) in the case of a Term SOFR Borrowing, three U.S. Governmental
Securities Business Days prior to the date of the requested Borrowing or
(ii) 3:00 p.m. (New York City time) in the case of a Base Rate Borrowing, one
Business Day prior to the date of the requested Borrowing. The requested date
must be a Business Day.
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7. [Insert location and number of the account to which the funds requested
pursuant to this Borrowing Request are to be disbursed.]
8. After giving effect to the requested Borrowing (and the use of proceeds
thereof), the conditions in Section 2.1 of the Credit Agreement will be met.
9. In accordance with the Credit Agreement the proposed Revolving Credit
Loans hereunder shall constitute $[
] Tranche A Loans and $[
] Tranche B Loans.
[The undersigned hereby represents and warrants that [the conditions specified
in
Section 4.3
of the Credit Agreement have been satisfied (or waived in accordance with
Section 9.2
of the Credit Agreement) as of the Funding Date]
3
.]
Very truly yours,
HE AR BRWR LLC, as Borrower
By:
Name:
Title:
3
Not to be included with respect to Agent Advances.
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EXHIBIT H
to the ABL
Credit Agreement
[FORM OF]
SOLVENCY CERTIFICATE
[
],_______
This Solvency Certificate is being executed and delivered pursuant to
Section 4.1(d)
of that certain ABL Credit Agreement, dated as of May 17, 2024 (as amended,
restated, amended and restated, supplemented or otheriwse modified from time
to time, the "
ABL Credit Agreement
"), by and among, inter alios, HE AR BRWR LLC, as Borrower, the several banks
and other financial institutions from time to time party thereto, BARCLAYS
BANK PLC, as administrative agent and collateral agent (in such capacity,
together with its successors and permitted assigns), Funding Agent and
Collateral Agent, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Collateral
Agent; the terms defined therein being used herein as therein defined.
The undersigned hereby certifies, solely in [his][her] capacity as an officer
of the Borrower and not in [his][her] individual capacity, as follows:
1. I am the Chief Financial Officer of the Borrower. I am generally
familiar with the businesses and assets of the Borrower, and have reviewed the
Credit Agreement, Loan Documents and such other documents and made such other
investigations and inquiries as I have deemed relevant for the purposes of
this Solvency Certificate.
2. As of the date hereof and after giving effect to the incurrence of the
indebtedness and obligations being incurred in connection with [
o
] on the date hereof, that, (a) the sum of the debt (including contingent
liabilities) of the Borrower does not exceed the present fair saleable value
(on a going concern basis) of the assets of the Borrower; (b) the capital of
the Borrower is not unreasonably small in relation to the business of the
Borrower contemplated as of the date hereof; and (c) the Borrower does not
intend to incur, or believe that they will incur, debts including current
obligations beyond their ability to pay such debt as they mature in the
ordinary course of business. For the purposes hereof, the amount of any
contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).
3. As of the date hereof, the Borrower does not intend to, and the Borrower
does not believe that it or any of its subsidiaries will, incur debts beyond
its ability to pay such debts as they mature, taking into account the timing
and amounts of cash to be received by it or any such subsidiary and the timing
and amounts of cash to be payable on or in respect of its debts or the debts
of any such subsidiary.
This Solvency Certificate is being delivered by the undersigned officer only
in [his][her] capacity as [Chief Financial Officer] of the Borrower and not
individually and the undersigned shall have no personal liability to the Agent
or the Lenders with respect thereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date
first written above.
HE AR BRWR LLC
, as
Borrower
By:
Name: [_____]
Title: [_____]
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EXHIBIT I
to the ABL
Credit Agreement
[FORM OF]
BORROWING BASE CERTIFICATE
[ATTACHED]
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Borrowing Base Certificate - Summary Page
Date:
Name: HE AR BRWR LLC
A/R as of:
The undersigned, each a Responsbile Officer of HE AR BRWR LLC (the
"Borrower"), certifies on behalf of itself after due inquiry that: (x) the
information contained in this certificate presents accurately and fairly in
all material respects the Borrowing Base and the calculation thereof as of the
date referenced above, (y) the calculation herein are made in accordance with
the terms and definitions set forth in the Credit Agreement and (z) this
certificate is delivered pursuant to the ABL Credit Agreement dated as of May
, 2024 (as amended, restated, amended and restated, modified, supplemented,
refinanced, renewed, or extended from time to time, the "Credit Agreement"),
entered into among the Borrower, the Lenders signatory thereto from time to
time and Barclays Bank PLC, as the administrative agent and collateral agent
(in such capacity, together with its successors and assigns, the "Agent").
Unless otherwise defined herein, capitalized terms used in this certificate
shall have the meanings set forth in the Credit Agreement.
Total Accounts Receivable
($ in 'mm) Non-Residential Residential Aggregate
Gross Billed Accounts Receivable
Less Ineligibles
Eligible Billed Accounts Receivable
Advance Rate
Billed A/R Availability
Gross Unbilled Accounts Receivable
Less Ineligibles
Eligible Unbilled Accounts Receivable
Advance Rate
Unadjusted Unbilled A/R Availability
Less: Unbilled 50% of the Respective Borrowing Base
Total Billed and Unbilled A/R Availability
Less: Federal / State Receivables $50 million (without Assignment of Claims)
Total Adjusted Billed and Unbilled A/R Availability
Reserves
($ in 'mm) Non-Residential Residential Aggregate
Reserves
Billed Regulatory Fee Reserves
Public Benefits Fund Regulatory Fee
Green Infrastructure Regulatory Fee
Total Billed Reserves
Other Reserves
Servicing Fee - 3 months
Customer Deposits
Customer Advances
Total Other Reserves
Total Reserves
Total Loans
($ in 'mm) Non-Residential Residential Aggregate
Total Net Borrowing Base Availability
Line Cap (Lesser of Availability or Respective Tranche Limit)
Total Total Total
Less: Loan Balance
Excess Availability
Responsible Officer
Responsible Officer Name (print)
Execution Version
Hawaiian Electric Exhibit 10.2
PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of May 17, 2024 among
THE VARIOUS ENTITIES LISTED ON SCHEDULE I HERETO,
as Originators,
HAWAIIAN ELECTRIC COMPANY, INC.,
as Servicer,
and
HE AR INTER LLC,
as Buyer
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CONTENTS
Page
ARTICLE I AGREEMENT TO PURCHASE AND SELL 2
SECTION 1.1 Agreement To Purchase and Sell 2
SECTION 1.2 Timing of Purchases 3
SECTION 1.3 Consideration for Purchases 3
SECTION 1.4 Purchase Termination Date 3
SECTION 1.5 Intention of the Parties 3
ARTICLE II PURCHASE REPORT; CALCULATION OF PURCHASE PRICE 4
SECTION 2.1 Purchase Report 4
SECTION 2.2 Calculation of Purchase Price 4
ARTICLE III PAYMENT OF PURCHASE PRICE 5
SECTION 3.1 Initial Purchase Price Payment 5
SECTION 3.2 Subsequent Purchase Price Payments 5
SECTION 3.3 Allocation of Payments 5
SECTION 3.4 Settlement as to Specific Receivables; Reconveyance of Specific Receivables 5
ARTICLE IV CONDITIONS OF PURCHASES; ADDITIONAL ORIGINATORS 7
SECTION 4.1 Conditions Precedent to Initial Purchase 7
SECTION 4.2 Certification as to Representations and Warranties 8
SECTION 4.3 Additional Originators 8
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS 9
SECTION 5.1 Representations and Warranties 9
ARTICLE VI COVENANTS OF THE ORIGINATORS 13
SECTION 6.1 Covenants 13
SECTION 6.2 Separateness Covenants 18
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF SUBJECT RECEIVABLES 19
SECTION 7.1 Rights of the Buyer 19
SECTION 7.2 Responsibilities of the Originators 20
SECTION 7.3 Further Action Evidencing Purchases 20
SECTION 7.4 Application of Collections 21
SECTION 7.5 Performance of Obligations 21
ARTICLE VIII THE SERVICER AND SERVICING OF SUBJECT RECEIVABLES 21
SECTION 8.1 Servicing. 21
SECTION 8.2 Purchase Report 22
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CONTENTS
Clause Subject Matter Page
ARTICLE IX . PURCHASE AND CONTRIBUTION TERMINATION EVENTS 22
SECTION 9.1 Purchase and Contribution Termination Events 22
SECTION 9.2 Remedies 23
ARTICLE X INDEMNIFICATION 23
SECTION 10.1 Indemnities by the Originators 23
ARTICLE XI MISCELLANEOUS 25
SECTION 11.1 Amendments, etc. 25
SECTION 11.2 Notices, etc 25
SECTION 11.3 No Waiver; Cumulative Remedies 26
SECTION 11.4 Binding Effect; Assignability 26
SECTION 11.5 Governing Law 26
SECTION 11.6 Costs, Expenses and Taxes 26
SECTION 11.7 CONSENT TO JURISDICTION 27
SECTION 11.8 WAIVER OF JURY TRIAL 27
SECTION 11.9 Captions and Cross References; Incorporation by Reference 27
SECTION 11.10 Execution in Counterparts 28
SECTION 11.11 Third Party Beneficiaries 28
SECTION 11.12 No Proceeding 28
SECTION 11.13 Mutual Negotiations 28
SECTION 11.14 Limited Recourse 28
SECTION 11.15 Limitation of Liability 28
SECTION 11.16 Certain Defined Terms 29
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SCHEDULES
Schedule I List and Location of each Originator
Schedule II Location of Books and Records of Originators
Schedule III Trade Names
Schedule IV Notice Addresses
Schedule V Intermediate Accounts
Schedule VI Credit and Collection Policy
EXHIBITS
Exhibit A Form of Purchase Report
Exhibit B Form of Joinder Agreement
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This PURCHASE AND CONTRIBUTION AGREEMENT (as amended, restated, supplemented
or otherwise modified from time to time, this "
Agreement
"), dated as of May 17, 2024 is entered into among the various entities listed
on
Schedule I
hereto or that become parties hereto from time to time pursuant to
Section 4.3
hereof (the "
Originators
" and each, an "
Originator
"), Hawaiian Electric Company, Inc., a Hawaiian corporation ("
HECO
" or the "
Company
"), as the initial Servicer, and HE AR INTER LLC, a Delaware limited liability
company (the "
Buyer
").
INTRODUCTORY STATEMENT
Unless otherwise indicated herein, capitalized terms used and not otherwise
defined in this Agreement are defined in the ABL Credit Agreement, dated as of
the date hereof, among HE AR BRWR LLC, as borrower, the several banks and
other financial institutions from time to time parties thereto as Lenders,
Barclays Bank PLC, as administrative agent, funding agent and collateral agent
for the benefit of the Secured Parties (together with its successors and
permitted assigns in such capacities, the "
Administrative Agent
") and the other agents party thereto (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "
ABL Credit Agreement
").
Certain capitalized terms used herein are defined in
Section 11.16
.
All references herein to months are to calendar months unless otherwise
expressly indicated. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. All terms used in Article 9 of the
UCC in the State of New York, and not specifically defined herein, are used
herein as defined in such Article 9. Unless the context otherwise requires,
"or" means "and/or," and "including" (and with correlative meaning "include"
and "includes") means including without limiting the generality of any
description preceding such term.
BACKGROUND
1. The Buyer is a bankruptcy remote special purpose limited liability
company that is a wholly-owned direct subsidiary of Company.
2. Each Originator is a wholly-owned direct or indirect subsidiary of the
Company. The Originators generate Receivables in the ordinary course of their
businesses.
3. The Originators, in order to finance their respective businesses, wish
to sell (and in the case of the Contributing Originator, sell or contribute,
as applicable) Subject Receivables, the Related Rights and Related Security to
the Buyer, and the Buyer is willing to purchase such Subject Receivables and
the Related Rights and Related Security from the Originators, on the terms and
subject to the conditions set forth herein.
4. The Originators and the Buyer intend each such transaction to be a true
sale and/or an absolute contribution and conveyance, as applicable, of the
Subject Receivables and the Related Rights in respect of such Subject
Receivables by each Originator to the Buyer, providing the Buyer with the full
benefits of ownership of such Subject Receivables, and the Originators and the
Buyer do not intend the transactions hereunder to be characterized as a loan
from the Buyer to any Originator.
5. The Originators acknowledge that the Buyer intends to on-sell, and grant
a security interest in, the Subject Receivables, Related Security and the
Related Rights, including its right, title and interest in this Agreement to
the Borrower under the ABL Credit Agreement and the Borrower, in turn, will
grant a security interest in the Subject Receivables, the Related Security and
Related Rights (including this agreement) to the Administrative Agent for the
benefit of the Secured Parties to secure its obligations under the ABL Credit
Agreement.
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6. The Buyer acknowledges that a portion of the payments made by the
various obligors under the Receivables (referred to herein as the "
Account Debtors
") in connection with their payments of the Receivables consist of taxes and
certain other Excluded Amounts (as defined below) that the Originators are
required to collect for third parties (such as GEMS).
7. The Buyer further acknowledges that the Originators may designate a
percentage of the outstanding amount of Receivables at any time as Excluded
Receivables. Such Excluded Receivables shall not constitute Subject
Receivables hereunder and any proceeds in respect of such Excluded Receivables
shall, to the extent paid to any account of the Buyer (including any
Intermediate Account) be turned over to or at the direction of, the relevant
Originator or its designee.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1
Agreement To Purchase and Sell
. On the terms and subject to the conditions set forth in this Agreement, each
Originator, severally and for itself, agrees to sell to the Buyer, and the
Buyer agrees to purchase from such Originator from time to time on or after
the Purchase Agreement Effective Date, but before the Purchase Termination
Date (as defined in
Section 1.4
), all of such Originator's right, title and interest (but not obligations) in
and to:
(a) each Receivable other than any Excluded Receivable, Non-Commodity
Related Receivable or Reconveyed Receivable (a "
Subject Receivable
") of such Originator that existed and was owing to such Originator at the
closing of such Originator's business on the date (the "
Cut-Off Date
") that is (i) with respect to each Originator party hereto on the Purchase
Agreement Effective Date, one (1) Business Day prior to the Purchase Agreement
Effective Date, and (ii) with respect to any Originator that first becomes a
party
hereto after the Purchase Agreement Effective Date, one (1) Business Day prior
to the date on which such Originator becomes a party hereto or such other date
as the Buyer and such Originator agree to in writing;
(b) each Subject Receivable generated by such Originator from and including
the Cut-Off Date to but excluding the Purchase Termination Date;
(c) all right, title and interest in, to and under, but not the obligations
of, such Originator under all Related Security with respect to any of the
foregoing Subject Receivables;
(d) all monies due or to become due to such Originator with respect to any
of the foregoing;
(e) all books, records and other information of such Originator to the
extent related to any of the foregoing;
(f) all Collections and other proceeds (as defined in the UCC) of any of
the foregoing that are or were received by such Originator on or after the
Cut-Off Date, (including, without limitation, all funds which either are
received by such Originator, the Buyer or the Servicer from or on behalf of
the Account Debtors in payment of any amounts owed (including, without
limitation, invoice price, finance charges, interest and all other charges) in
respect of any of the above Subject Receivables or Related Security or are
applied to such amounts owed by the Account Debtors (including, without
limitation, any
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US-DOCS\148030570.24
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insurance payments that such Originator, the Buyer or the Servicer applies in
the ordinary course of its business to amounts owed in respect of any of the
above Subject Receivables or Related Security, and net proceeds of sale or
other disposition of repossessed goods or other collateral or property of the
Account Debtors in respect of any of the above Receivables or any other
parties directly or indirectly liable for payment of such Subject
Receivables));
(g) all rights, remedies, powers, privileges, title and interest (but not
obligations) with respect to the Subject Receivables sold or contributed
hereunder; and
(h) all rights, remedies, powers, privileges, title and interest (but not
obligations) in and to all Intermediate Accounts, Controlled Accounts and
Collateral Agent Deposit Accounts into which any Collections or other proceeds
with respect to such Receivables may be deposited, and any related investment
property acquired with any such Collections or other proceeds (as such term is
defined in the applicable UCC).
All purchases hereunder shall be made without recourse, but shall be made
pursuant to, and in reliance upon, the representations, warranties and
covenants of the Originators set forth in this Agreement and each other Loan
Document to which they are a party. No obligation or liability to any Account
Debtor or any other Person on any Receivable is intended to be assumed by the
Buyer hereunder, and any such assumption is expressly disclaimed. The Buyer's
foregoing agreement to purchase Subject Receivables and the proceeds and
rights described in
clauses (e)
through
(h)
(collectively; the "
Related Rights
"), is herein called the "
Purchase Facility
."
SECTION 1.2
Timing of Purchases
.
(a)
Effective Date Purchases
. Effective on the Purchase Agreement Effective Date, each Originator hereby
sells to the Buyer, and the Buyer hereby purchases, such Originator's entire
right, title and interest in, to and under (i) each Subject Receivable that
existed and was owing to such Originator at the Cut-Off Date, and (ii) all
Related Rights and Related Security with respect thereto.
(b)
Subsequent Purchases
. After the Purchase Agreement Effective Date, until the Purchase Termination
Date, each Subject Receivable and the Related Rights for such Subject
Receivable generated by each Originator shall be, and shall be deemed to have
been, sold by such Originator to the Buyer (and without further action other
than the payment (including by way of netting) of the Purchase Price to such
Originator or its designee) on the date on which such Subject Receivable is
generated (or if such day is not a Business Day, the following Business Day)
(the Payment Date on which the sale of a Receivable takes place, the "
Sale Date
" with respect to such Receivable).
SECTION 1.3
Consideration for Purchases
. On the terms and subject to the conditions set forth in this Agreement, the
Buyer agrees to pay the Purchase Price for the Subject Receivables and Related
Rights to the Originators or their designees in accordance with
Article III
.
SECTION 1.4
Purchase Termination Date
. The "
Purchase Termination Date
" shall be the earlier to occur of (a) the Final Payout Date and (b) 45 days
following the day on which the Originators shall have given written notice to
the Buyer and the Administrative Agent at or prior to 10:00 a.m. (New York
City time) that the Originators desire to terminate this Agreement.
SECTION 1.5
Intention of the Parties
.
(a) It is the express intent of each Originator and the Buyer that each
conveyance by such Originator to the Buyer pursuant to this Agreement of the
Subject Receivables, (including without
3
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limitation, all Subject Receivables, if any, constituting general intangibles
as defined in the UCC), and all Related Rights be construed as a valid and
perfected sale and absolute assignment (without recourse except as provided
herein) of such Subject Receivables and Related Rights by such Originator to
the Buyer (rather than the grant of a security interest to secure a debt or
other obligation of such Originator) and that the right, title and interest in
and to such Subject Receivables and Related Rights conveyed to the Buyer be
prior to the rights of and enforceable against all other Persons at any time,
including, without limitation, lien creditors, secured lenders, purchasers and
any Person claiming through such Originator. The parties acknowledge that an
outright sale of Receivables or an interest in Receivables is a "security
interest" within the meaning of UCC 1-201(b)(35) and as such, the terms and
terminology of UCC Article 9 will apply to this Agreement and be used in, or
in connection with, this Agreement without thereby affecting the nature of the
outright sale hereunder and as such it is also the intent of the parties that
this Agreement shall be, and hereby is, a "security agreement" within the
meaning of the UCC. However, if, contrary to the mutual intent of the parties,
any conveyance of Subject Receivables, including without limitation any
Subject Receivables constituting general intangibles as defined in the UCC, or
any Related Rights with respect thereto is not construed to be both a valid
and perfected sale and absolute assignment of such Subject Receivables or
Related Rights, and a conveyance of such Subject Receivables or Related Rights
that is prior to the rights of and enforceable against all other Persons at
any time, including without limitation lien creditors, secured lenders,
purchasers and any Person claiming through such Originator, then, it is the
intent of such Originator and the Buyer that such Originator shall be deemed
to have granted to the Buyer as of the date of this Agreement, and such
Originator hereby grants to the Buyer, a security interest in, to and under
all of such Originator's right, title and interest in and to the Subject
Receivables and the Related Rights now existing and hereafter created by such
Originator transferred or purported to be transferred hereunder to secure such
Originator's obligations hereunder (including, without limitation, pursuant to
Section 3.4
and
Section 10.1
hereof).
(b) The Originators acknowledge that the Buyer is on-selling the Subject
Receivables (other than the Excluded Amounts) and Related Security pursuant to
the Borrower Purchase and Contribution Agreement to the Borrower under the ABL
Credit Facility and that the Buyer, to secure its obligations under such
Borrower Purchase and Contribution Agreement has granted to Borrower a
security interest in all of Buyer's right, title and interest in and under
this Agreement and each Originator hereby confirms that it recognizes
Borrower's security interest (and right to exercise such security interest)
herein. Each Originator further acknowledges that the Borrower has granted to
the Administrative Agent under the ABL Credit Facility, for the benefit of
such Agent, the Lenders thereunder and the other Secured Parties set forth
therein, a security interest in all or substantially all of Borrower's
personal property, including Borrower's right, title and interest in this
Agreement and each Originator hereby confirms that it recognizes the
Administrative Agent's security interest (and right to exercise such security
interest) herein.
ARTICLE II
PURCHASE REPORT; CALCULATION OF PURCHASE PRICE
SECTION 2.1
Purchase Report
. Each Originator shall provide the Servicer with the information reasonably
required by the Servicer for the Servicer to deliver all Purchase Reports
required in accordance with
Section 8.2
hereof.
SECTION 2.2
Calculation of Purchase Price
. The "
Purchase Price
" to be paid to each Originator in accordance with the terms of
Article III
for the Subject Receivables and the Related Rights that are purchased
hereunder from such Originator shall be determined in accordance with the
following formula:
PP = (OB x FMVD)
where:
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PP = Purchase Price for each Subject Receivable as calculated on the
relevant Payment Date.
OB = The Outstanding Balance of such Subject Receivable on the relevant
Payment Date.
FMVD = Such percentage as agreed between such Originator and the Buyer
to reflect the fair market price for the Subject Receivables, which initially
shall be equal to 1.0 minus a percentage, initially to be set at 0.5%;
provided that, such percentage shall not be greater than 1.5% or less than
0.25% without the prior written consent of the Administrative Agent, not to be
unreasonably withheld, conditioned or delayed
"
Payment Date
" means (i) the Purchase Agreement Effective Date and (ii) each Business Day
thereafter that the Originators are open for business.
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1
Initial Purchase Price Payment
. On the terms and subject to the conditions set forth in this Agreement, the
Buyer agrees to pay to each Originator or its designee the Purchase Price for
the purchase to be made from such Originator on the Purchase Agreement
Effective Date in a combination of, at the election of the Buyer, (a) cash of
the Buyer (subject to netting) or (b) through a contribution to the Buyer in
the case of the Contributing Originator representing an increase in the value
of the equity interest of the Contributing Originator in the Buyer in a
combined amount equal to the amount of the Purchase Price of Receivables
contributed.
SECTION 3.2
Subsequent Purchase Price Payments
. On each Payment Date subsequent to the Purchase Agreement Effective Date, on
the terms and subject to the conditions set forth in this Agreement, the Buyer
shall pay to each Originator or its designee the Purchase Price for the
Subject Receivables and the Related Rights sold by such Originator on such
Payment Date in a combination of, at the election of the Buyer, (a) cash of
the Buyer (subject to netting) or (b) through a contribution to the Buyer in
the case of the Contributing Originator representing an increase in the value
of the equity interest of the Contributing Originator in the Buyer equal to
the amount of the Purchase Price of Subject Receivables contributed.
SECTION 3.3
Allocation of Payments
. All amounts paid by the Buyer in cash shall be allocated
first
to each Originator other than the Contributing Originator to the extent the
Buyer has cash available therefor;
provided
, that if the Buyer does not have sufficient cash available to pay all of the
Purchase Price then due and payable to the Originators other than the
Contributing Originator, then the Contributing Originator shall, in its sole
discretion, contribute to the capital of the Buyer sufficient cash to pay the
Purchase Price then due and payable in full to such other Originators or such
Originator's designee (subject to netting against any cash then payable by
Buyer to such Originator or such Originator's designee, as applicable); and
second
to the Contributing Originator. To the extent cash of the Buyer is not
sufficient to pay in full the portion of the Purchase Price then due and
payable to the Contributing Originator that the Buyer has elected to pay in
cash, the Contributing Originator shall (and hereby irrevocably does without
further action) contribute to the capital of the Buyer all Receivables
attributable to such unpaid cash portion of the Purchase Price.
SECTION 3.4
Settlement as to Specific Receivables; Reconveyance of Specific Receivables
.
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(a) If, (A) on the day of purchase of any Subject Receivable from an
Originator hereunder, any of the representations or warranties set forth in
Section 5.1(k)
,
Section 5.1(l)
,
Section 5.1(w)
,
Section 5.1(z)
or
Section 5.1(aa)
are not true with respect to such Subject Receivable or (B) as a result of any
action or (other than with respect to
Section 5.1(z)
) inaction (other than solely as a result of the failure to collect such
Subject Receivable due to a discharge in bankruptcy or similar insolvency
proceeding or other credit related reasons with respect to the relevant
Account Debtor) of such Originator, on any subsequent day, any of such
representations or warranties set forth in
Section 5.1(k)
,
Section 5.1(l)
(other than as a result of clauses (k) or (l) in the definition of
"Exclusionary Criteria"),
Section 5.1(w)
,
Section 5.1(z)
or
Section 5.1(aa)
is no longer true with respect to such Receivable, then such Subject
Receivable will be deemed to be an "
Reconveyable Receivable
".
(b) Upon any Originator Responsible Officer obtaining knowledge of any
Subject Receivable included in the Borrowing Base under the ABL Credit
Facility being deemed an Reconveyable Receivable or any Subject Receivable
included in the Borrowing Base that is not an Reconveyable Receivable being
reduced or canceled as a result of any Dilution Factor (the "
Dilution Amount
"), the relevant Originator shall:
(i) if, after excluding all such Reconveyable Receivables and all Dilution
Amounts from the Borrowing Base, the Payment Conditions, are satisfied, within
5 Business Days of such Originator Responsible Officer obtaining such
knowledge, notify Buyer and the Servicer thereof (to the extent Buyer or
Servicer, as applicable, has not separately obtained knowledge thereof). The
relevant Originator may, or, if directed by the Buyer, shall, elect to have
the Buyer reconvey such Reconveyable Receivable to the Seller (in which case
Seller shall pay the Purchase Price to Buyer in cash, subject to netting, by
wire transfer to an Intermediate Account); or
(ii) if, after excluding all such Reconveyable Receivables and Dilution
Amounts from the Borrowing Base, the Payment Conditions are not satisfied, the
Relevant Originator shall promptly, and in any event within 3 Business Days
(or within 1 Business Day if the Excess Availability after excluding all such
Reconveyable Receivables from the Borrowing Base is not at least $1) of such
Originator Responsible Officer obtaining such knowledge pay to the Buyer the
Purchase Price for such Reconveyable Receivable or the Dilution Amounts, as
applicable, by wire transfer to an Intermediate Account, and notify the Buyer
and the Servicer thereof (to the extent Buyer or Servicer, as applicable, has
not separately obtained knowledge thereof).
(c) Any reconveyance in compliance with any Originator's payment
obligations in
clause (a)
of this Section shall be without recourse and without representation or
warranty except that such Subject Receivable is free and clear of all liens,
security interests, charges and encumbrances created by the Buyer. Once so
reconveyed by the Buyer to such Originator, such Originator shall not
thereafter sell such Receivable (a "
Reconveyed Receivable
") to the Buyer pursuant to this Agreement. The Originator shall be jointly
and severally liable with each Originator as to its obligations to the Buyer
with respect to Dilution Amounts and the payment of the Purchase Price of
Reconveyable Receivables, as provided in this
Section 3.4
. The Servicer shall be jointly and severally liable with each Originator
(except as to itself, in such capacity) as to its obligations to the Buyer
with respect to Dilution Amounts and the payment of the Purchase Price of
Reconveyable Receivables, as provided in this
Section 3.4
.
(d) Although the Purchase Price for each Subject Receivable purchased after
the date hereof shall be due and payable by the Buyer to the Originator on the
applicable Payment Date, a reconciliation of the Purchase Prices between Buyer
and each Originator may be effected on any date of determination thereafter as
part of reconciling the records as it relates to the outstanding balance of
any such Subject Receivable whether as a result of a Dilution Factor or
otherwise.
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ARTICLE IV
CONDITIONS OF PURCHASES; ADDITIONAL ORIGINATORS
SECTION 4.1
Conditions Precedent to Initial Purchase
. The initial purchase hereunder is subject to the condition precedent that
the Buyer, the Borrower (as Buyer's assignee) and the Administrative Agent (as
Borrower's assignee for the benefit of the Secured Parties under the ABL
Credit Agreement) shall have received the following, each (unless otherwise
indicated) dated the Purchase Agreement Effective Date, and each in form and
substance satisfactory to the Buyer, the Borrower and the Administrative Agent
(the date on which all such items have been received, the "
Purchase Agreement Effective Date
"):
(a) a copy of the resolutions or unanimous written consent of the board of
directors or other governing body of each Originator approving this Agreement
and the other Loan Documents to be executed and delivered by it and the
transactions contemplated hereby and thereby, certified by the Secretary or
Assistant Secretary of such Originator;
(b) good standing certificates for each Originator issued as of a recent
date reasonably acceptable to the Buyer and the Administrative Agent by the
Secretary of State (or similar official) of the jurisdiction of such
Originator's organization or formation and each other jurisdiction where such
Originator is required to be qualified to transact business, except where the
failure to be so qualified would not reasonably be expected to have an
Originator Material Adverse Effect;
(c) a certificate of each Originator Responsible Officer certifying the
names and true signatures of the officers authorized on such Originator's
behalf to sign this Agreement and the other Loan Documents to be executed and
delivered by it (on which certificate the Servicer, the Buyer, the
Administrative Agent and each Lender may conclusively rely until such time as
the Servicer, the Buyer and the Administrative Agent shall receive from such
Person a revised certificate meeting the requirements of this
clause (c)
);
(d) the certificate of formation, articles of incorporation or articles of
organization of each Originator (including all amendments and modifications
thereto), as applicable, duly certified by the Secretary of State of the
jurisdiction of such Originator's organization as of a recent date, together
with a copy of the by-laws, limited liability company agreement or other
governing documents of such Originator (including all amendments and
modifications thereto), as applicable, each duly certified by the Secretary or
an Assistant Secretary of such Originator;
(e) proper financing statements (Form UCC-1) that have been duly authorized
and name each Originator as the debtor/seller and the Buyer as the
buyer/assignor secured party (and the Borrower, as additional assignee/secured
party and the Administrative Agent, for the benefit of the Secured Parties, as
total assignee / secured party) of the Subject Receivables sold by such
Originator as may be necessary or, in the Buyer's, Borrower's or the
Administrative Agent's reasonable opinion, desirable under the UCC of all
appropriate jurisdictions to perfect the Buyer's ownership or security
interest in such Subject Receivables and the Related Rights in which an
ownership or security interest has been assigned to it hereunder;
(f) a written search report from a Person reasonably satisfactory to the
Buyer, the Borrower and the Administrative Agent listing all effective
financing statements that name the Originators as debtors or sellers and that
are filed in all jurisdictions in which filings may be made against such
Originator pursuant to the applicable UCC, together with copies of such
financing statements (none of which, except for those released or terminated,
as the case may be, prior to the date hereof), shall cover any Subject
Receivable or any Related Rights which are to be sold to the Buyer hereunder,
and tax and judgment lien search reports (including, without limitation, liens
of the PBGC) from a Person reasonably satisfactory
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to the Buyer, the Borrower and the Administrative Agent showing no evidence of
such liens filed against any Originator;
(g) an updated
Schedule V
hereto;
(h) evidence (i) of the execution and delivery by each of the parties
thereto of each of the Loan Documents to be executed and delivered by it in
connection herewith and (ii) that each of the conditions precedent to the
execution, delivery and effectiveness of such Loan Documents has been
satisfied to the Buyer's and the Administrative Agent's satisfaction;
(i) the Company shall have received the PUC Initial Order; and
(j) the Company and the Buyer shall have agreed that the Purchase Agreement
Effective Date has occurred and notified the Administrative Agent thereof in
writing (which may be by email).
SECTION 4.2
Certification as to Representations and Warranties
. On each day that a new Subject Receivable is sold or purportedly sold to the
Buyer hereunder, such Originator shall be deemed to have certified that (i)
all representations and warranties set forth in
Section 5.1
are true and correct in all material respects (unless such representation or
warranty contains a materiality qualification and, in such case, such
representation or warranty shall be true and correct as made) on and as of
such day (except for representations and warranties which apply as to an
earlier date (in which case such representations and warranties shall be true
and correct as of such earlier date)) and (ii) no Purchase and Contribution
Termination Event, Unmatured Purchase and Contribution Termination Event,
Default or Event of Default has occurred and is continuing, or would result
from the sale of such Receivables. Notwithstanding the foregoing, nothing in
this
Section 4.2
shall require any Originator to make as of a date later than the applicable
Sale Date any representation or warranty with respect to a Subject Receivable
that it has transferred to the Buyer, but each Originator shall promptly
notify the Buyer, the Borrower and the Administrative Agent if such Originator
Responsible Officer has knowledge that a representation and warranty that it
made under this Agreement was not correct when made.
SECTION 4.3
Additional Originators
. Additional Persons may be added as Originators hereunder, with the prior
written consent of the Buyer and the Administrative Agent (which consents may
be granted or withheld in their sole discretion);
provided
that the following conditions are satisfied or waived in writing by the
Administrative Agent on or before the date of such addition:
(a) the Servicer shall have given the Buyer and the Administrative Agent at
least thirty (30) days' prior written notice of such proposed addition and the
identity of the proposed additional Originator and shall have provided such
other information with respect to such proposed additional Originator as the
Buyer, the Administrative Agent or any Lender may reasonably request;
(b) such proposed additional Originator shall have executed and delivered
to the Buyer and the Administrative Agent an agreement substantially in the
form attached hereto as
Exhibit B
(a "
Joinder Agreement
");
(c) such proposed additional Originator shall have delivered to the Buyer
and the Administrative Agent each of the documents with respect to such
Originator described in
Section 4.1
, as well as any legal opinion reasonably requested by either the Collateral
Agent or the Co-Collateral Agent, in each case in form and substance
satisfactory to the Buyer and the Administrative Agent;
(d) no Purchase and Contribution Termination Event or Unmatured Purchase and
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Contribution Termination Event shall have occurred and be continuing; and
(e) no Default or Event of Default shall have occurred and be continuing;
(f) the Administrative Agent shall have received, and be satisfied with,
the final report in respect of the a field exam conducted on each Additional
Originator by a third party acceptable to the Administrative Agent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
SECTION 5.1
Representations and Warranties
. In order to induce the Buyer to enter into this Agreement and to make
purchases hereunder, each Originator hereby represents and warrants to Buyer,
to the Borrower (as Buyer's assignee) and to the Administrative Agent (as
Borrower's assignee for the benefit of the Secured Parties under the ABL
Credit Agreement) with respect to itself that each representation and warranty
set forth in this Section is true and correct with respect to it and the
Subject Receivables sold by it hereunder on the day such Subject Receivables
are sold by it hereunder:
(a)
Organization and Good Standing
. Such Originator is duly and validly organized and existing in good standing
under the laws of its jurisdiction of organization, formation or charter (it
being understood that the Borrower was originally organized under the laws of
the Kingdom of Hawaii, Hawaii Electric Light was organized under the laws of
the Republic of Hawaii and Maui Electric was organized under the laws of the
Territory of Hawaii).
(b)
Due Qualification.
Such Originator is duly licensed or qualified to transact business in each
other jurisdiction where failure to so qualify would have an Originator
Material Adverse Effect.
(c)
Power and Authority; Due Authorization
. Such Originator (i) has all necessary power and authority to (A) execute and
deliver this Agreement and the other Loan Documents to which it is a party,
(B) perform its obligations under this Agreement and the other Loan Documents
to which it is a party and the execution, delivery and performance of, and the
consummation of the transactions provided for in, this Agreement and the other
Loan Documents to which it is a party have been duly authorized by such
Originator by all necessary action and (C) grant a security interest in the
Subject Receivables and the Related Rights to the Buyer on the terms and
subject to the conditions herein provided and (ii) has duly authorized by all
necessary action such grant and the execution, delivery and performance of,
and the consummation of the transactions provided for in, this Agreement and
the other Loan Documents to which it is a party.
(d)
Binding Obligations.
This Agreement and each of the other Loan Documents to which it is a party
constitutes legal, valid and binding obligations of such Originator,
enforceable against such Originator in accordance with their respective terms,
except (i) as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) as such enforceability may
be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e)
No Conflict or Violation
. The execution and delivery of this Agreement and each other Loan Document to
which such Originator is a party, the performance of the transactions
contemplated by this Agreement and the other Loan Documents to which it is a
party and the fulfillment of the terms of this Agreement and the other Loan
Documents to which it is a party by it will not (i) conflict with, result in
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any breach of any of the terms or provisions of, or constitute (with or
without notice or lapse of time or both) a default under (x) its organizational
documents or (y) any indenture, sale agreement, credit agreement, loan
agreement, security agreement, mortgage, deed of trust or other material
agreement or material instrument to which it is a party or by which it or any
of its property is bound, (ii) result in the creation or imposition of any
Adverse Claim upon any of its properties pursuant to the terms of any such
indenture, credit agreement, loan agreement, security agreement, mortgage,
deed of trust or other material agreement or material instrument, other than
this Agreement and the other Loan Documents or (iii) conflict with or violate
any Applicable Law, except in the case of subclauses (i)(y), (ii) and (iii),
to the extent that any such conflict, breach, default, Adverse Claim or
violation would not reasonably be expected to have a Material Adverse Effect
or an Originator Material Adverse Effect.
(f)
Litigation and Other Proceedings.
There is no action, suit, proceeding or investigation pending, or to its
knowledge threatened, against such Originator before any Governmental
Authority: (i) asserting the invalidity of this Agreement or any of the other
Loan Documents to which it is a party, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
other Loan Document or (iii) seeking any determination or ruling that could
materially and adversely affect the performance by it of its obligations
under, or the validity or enforceability of, this Agreement or any of the
other Loan Documents to which it is a party.
(g)
No Consents.
Such Originator is not required to obtain the consent of any other party or
any consent, license, approval, registration, authorization or declaration of
or with any Governmental Authority in connection with the execution, delivery,
or performance of this Agreement or any other Loan Document to which it is a
party, except for the PUC Final Order, the consents, licenses, approvals,
registrations, authorizations or declarations that have already been obtained
or those consents, licenses, approvals, registrations, authorizations or
declarations the failure of which to obtain could not reasonably be expected
to have a Material Adverse Effect or an Originator Material Adverse Effect.
(h)
Compliance with Applicable Law
. Such Originator (i) has duly satisfied all obligations on its part to be
fulfilled under or in connection with the Subject Receivables and the related
Contracts and (ii) has complied in all material respects with all Applicable
Law in connection with the Subject Receivables.
(i)
[Reserved]
(j)
Names and Location
. Except as described in
Schedule III
, such Originator has not used any corporate names, trade names or assumed
names since the date occurring five calendar years prior to the Purchase
Agreement Effective Date other than its name set forth on the signature pages
hereto. Such Originator is "located" (as such term is defined in the
applicable UCC) in the jurisdiction specified in
Schedule I
and since the date occurring five calendar years prior to the Purchase
Agreement Effective Date, has not been "located" (as such term is defined in
the applicable UCC) in any other jurisdiction (except as specified in
Schedule I
). The office(s) where such Originator keeps its records concerning the
Subject Receivables is at the address(es) set forth on
Schedule II
.
(k)
Credit and Collection Policy
. Such Originator has complied in all material respects with its Credit and
Collection Policy in regard to each Subject Receivable sold by it hereunder
and the related Contracts.
(l)
Eligible Non-Residential Accounts and Eligible Residential Accounts
. Other than any Subject Receivable not included in the Borrowing Base, each
Subject Receivable sold, transferred or assigned hereunder by any Originator
to the Buyer is an Eligible Non-Residential Account or an Eligible Residential
Account (each as defined in the ABL Credit Agreement) on the applicable Sale
Date. No
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Subject Receivable, whether or not included in the Borrowing Base, is an
Account with respect to which the Account Debtor is subject to any Sanctions,
including a person named on the list of "Specially Designated Nationals and
Blocked Persons" maintained by OFAC or which is a designated person named on
any similar applicable list.
(m)
No Adverse Selection
. Each Subject Receivable was not selected by such Originator using any
materially adverse selection procedures that identified such Subject
Receivables as being materially less desirable or valuable than other
Receivables originated by such Originator.
(n)
Margin Stock; Investment Company Act
. Such Originator is not engaged, principally or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meanings of Regulations T, U and X of the
Board of Governors of the Federal Reserve System), and no Purchase Price
payments or proceeds under this Agreement will be used by it to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock. Such Originator is not and is not
required to be registered as an "investment company" under the Investment
Company Act of 1940.
(o)
Other Loan Documents
. Each representation and warranty made by such Originator under each other
Loan Document to which it is a party is true and correct in all material
respects as of the date when made or deemed made.
(p)
No Material Adverse Effect
. Since December 31, 2023, there has been no Originator Material Adverse Effect.
(q)
Patriot Act; Sanctions; Anti-Corruption
. For purposes of this
Section 5.1(q)
, "knowledge" as to any Originator means the actual knowledge of the
President, CEO, any Executive Vice President, General Counsel (or other chief
legal officer) or Financial Officer of the Company.
(i) Such Originator, its officers, employees, directors and, to the
knowledge of the Company, its or its Subsidiaries' agents, are in compliance
with Anti-Corruption Laws and Sanctions.
(ii) Such Originator has implemented and maintains in effect policies and
procedures designed to ensure compliance by it and its directors, officers,
employees and agents with Anti-Corruption Laws and Sanctions.
(iii) None of such Originator, any Subsidiary thereof, any of its or their
directors, officers or employees, or to the knowledge of the Borrower, any
agents of such Originator or its Subsidiaries that will act in any capacity in
connection with or benefit from the Purchase Facility established hereby, is a
Sanctioned Person. No use of the proceeds of the sales of Receivables
hereunder will violate Anti-Corruption Laws or Sanctions.
(r)
Bulk Sales Act
. No transaction contemplated by this Agreement requires compliance by such
Originator with any bulk sales act or similar law.
(s)
Taxes
. Except as would not, either individually or in the aggregate, reasonably be
expected to result in an Originator Material Adverse Effect, such Originator
has timely filed (or validly extended) or caused to be filed (or validly
extended) all material Tax returns and reports required by Applicable Law to
have been filed by it and has paid or caused to be paid all Taxes required to
be paid by it, except (i) any Taxes that are being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP have been established or (ii) to the extent that the failure to do
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so would not reasonably be expected to have an Originator Material Adverse
Effect.
(t)
Opinions
. The facts regarding such Originator, the Subject Receivables sold by it
hereunder, the Related Security and the related matters set forth or assumed
in each of the opinions of counsel delivered in connection with this Agreement
and the Loan Documents are true and correct in all material respects.
(u)
No Fraudulent Conveyance
. No sale hereunder constitutes a fraudulent transfer or conveyance under any
United States federal or applicable state bankruptcy or insolvency laws or is
otherwise void or voidable under such or similar laws or principles or for any
other reason.
(v)
ERISA
. No ERISA Event has occurred that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, would
reasonably be expected to result in an Originator Material Adverse Effect.
(w)
Ordinary Course of Business
. Such Originator represents and warrants that each remittance of Collections
by or on behalf of such Originator to the Buyer under this Agreement will have
been (i) in payment of an obligation of such Originator arising in the
ordinary course of business or financial affairs of such Originator and (ii)
made in the ordinary course of business or financial affairs of such
Originator.
(x)
Perfection; Good Title
. Immediately preceding its sale of each Subject Receivable hereunder, such
Originator was the owner of such Subject Receivable sold or purported to be
sold free and clear of any Adverse Claims, and each such sale hereunder
constitutes a valid sale, transfer and assignment of all of such Originator's
right, title and interest in, to and under the Subject Receivables and Related
Rights sold or transferred or purported to be sold or transferred by it, free
and clear of any Adverse Claims enforceable against creditors of and
purchasers from such Originator. At the time such Subject Receivable is sold
or purported to be sold hereunder by such Originator, all appropriate
financing statements, financing statement amendments and continuation
statements have been filed in the proper filing office in the appropriate
jurisdictions under Applicable Law in order to perfect (and continue the
perfection of) the sale of the Receivables and Related Rights from such
Originator to the Buyer pursuant to this Agreement. This Agreement creates a
valid and continuing security interest (as defined in New York UCC Section
1-201(b)(35)) in the Originator's right, title and interest in, to and under
the Subject Receivables and Related Rights. Upon the creation or acquisition
of each new Subject Receivable and the transfer to the Buyer of each new
Subject Receivable sold or otherwise conveyed or purported to be sold or
conveyed hereunder, and on the Purchase Agreement Effective Date for then
existing Subject Receivables, the Buyer shall have a valid and perfected first
priority ownership or security interest in each Subject Receivable sold to it
hereunder, free and clear of any Adverse Claim. The Receivables constitute
"accounts" or "general intangibles" within the meaning of Section 9-102 of the
UCC. Other than the ownership or security interest granted to the Buyer
pursuant to this Agreement, such Originator has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Subject
Receivables or Related Rights except as permitted by this Agreement and the
other Loan Documents. Such Originator has not authorized the filing of and is
not aware of any financing statements filed against such Originator that
include a description of collateral covering the Subject Receivables and
Related Rights other than any financing statement (i) in favor of Buyer (where
the Borrower (as Buyer's assignee) and the Administrative Agent for the
benefit of the Secured Parties under the ABL Agreement (as Borrower's
assignee) may be listed, respectively, as assignee/additional secured party or
total assignee/additional secured party as the case may be) or (ii) that has
been terminated or will be amended on or prior to the Purchase Agreement
Effective Date to exclude the Subject Receivables and the Related Rights. Such
Originator is not aware of any judgment lien, ERISA lien or tax lien filings
against such Originator.
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(y)
Reliance on Separate Legal Identity
. Such Originator acknowledges that each of the Lenders and the Administrative
Agent are entering into the Loan Documents to which they are parties in
reliance upon the Buyer's identity as a legal entity separate from such
Originator.
(z)
Enforceability of Contracts
. Each Contract related to any Receivable sold by such Originator hereunder is
effective to create, and has created, a legal, valid and binding obligation of
the related Account Debtor enforceable against the Account Debtor in
accordance with its terms and each Subject Receivable constitutes (or when
billed will constitute) a valid and binding obligation of the related Account
Debtor to pay the outstanding balance of such Subject Receivable, except in
each case as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium of other similar laws affecting the
creditors' rights generally and as such enforceability may be limited by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law, without being subject to any
defense, deduction, offset or counterclaim and such Originator has fully
performed its obligations under such Contract to the extent required for the
Account Debtor to be obligated to pay the related Subject Receivable.
(aa)
Nature of Pool Receivables
. All Subject Receivables: (i) were originated by such Originator in the
ordinary course of its business, (ii) were sold to Buyer for fair
consideration and reasonably equivalent value and (iii) represent all, or a
portion of the purchase price of merchandise, insurance or services within the
meaning of Section 3(c)(5)(A) of the Investment Company Act.
(bb)
No Adverse Change in Receivables
. Since December 31, 2023 there has been no material adverse change in either
the collectability or the payment history of the Receivables originated by
such Originator that are of the type that may be Subject Receivables hereunder.
(cc)
Solvent
. As of the Purchase Agreement Effective Date, after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents, such
Originator is Solvent.
(dd)
Intermediate Accounts
. The deposit accounts of the Buyer listed in
Schedule V
constitute, on the Purchase Agreement Effective Date, reflects all deposit
accounts into which any Account Debtors in respect of any Pool Receivables are
directed to make payments in respect of any such Pool Receivable.
ARTICLE VI
COVENANTS OF THE ORIGINATORS
SECTION 6.1
Covenants
. From the date hereof until the Final Payout Date, each Originator will,
unless the Buyer, the Borrower (as the Buyer's assignee) and the Administrative
Agent (as Borrower's assignee, for the benefit of the Secured Parties under
the ABL Credit Agreement) shall otherwise consent in writing, comply with the
following covenants:
(a)
Financial Reporting
. Each Originator will maintain a system of accounting established and
administered in accordance with GAAP, and each Originator shall furnish to the
Buyer and, the Administrative Agent such information as the Buyer, the
Administrative Agent or any Lender may from time to time reasonably request
relating to such system or otherwise, including, without limitation (but
without duplication of any such information furnished pursuant to Sections
5.1, 5.2, 5.6 or 5.7 of the ABL Credit Agreement), (i) the financial
statements, certificates and other documents and information required to be
delivered pursuant to Section 6.01 of the Company Credit Agreement and (ii)
any information necessary to allow the Buyer to comply with its obligations
regarding field examinations pursuant to Section 5.6 of the ABL Credit
Agreement.
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(b)
Notice of Events of Default, Default, Purchase and Contribution Termination
Events, Unmatured Purchase and Contribution Termination Events and Material
Adverse Effect
. Promptly after an Originator Responsible Officer has obtained knowledge
thereof, notify the Administrative Agent in writing (i) of the occurrence of
any Event of Default or Purchase and Contribution Termination Event, which
notice shall describe such Event of Default or Purchase and Contribution
Termination Event (except to the extent the Administrative Agent shall have
previously furnished to the Borrower or an Originator written notice of such
Event of Default or Purchase and Sale Termination Event, respectively), and if
applicable, the steps being taken by such Originator with respect thereto
(which notice shall be deemed given if such notice is provided pursuant to
Section 5.7(a) of the ABL Credit Agreement or Section 6.1(b) of the Borrower
Purchase Agreement) and (ii) of any change in the business, operations,
property or financial or other condition of such Originator which would
reasonably be expected to have an Originator Material Adverse Effect.
(c)
Existence; Conduct of Business
. Each Originator will do or cause to be done, all things necessary to
preserve, renew and maintain in full force and effect its legal existence and
take all reasonable action to maintain the rights, privileges (including its
good standing where applicable in the relevant jurisdictions), permits,
licenses and franchises material to the conduct of its business,
provided
that, other than in the case of the Buyer or the Borrower, the foregoing shall
not prohibit any merger, consolidation, liquidation or dissolution permitted
under Section 7.02 of the Company Credit Agreement or any merger or
consolidation of a Subsidiary into an Originator or another Subsidiary of an
Originator or the transfer of assets by any Subsidiary to an Originator or
another Subsidiary of an Originator followed by the liquidation of dissolution
of such Subsidiary, in each case solely to the extent permitted or not
prohibited under the ABL Credit Agreement.
(d) Compliance with Laws. Each Originator will comply in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or property, except if the
failure to comply would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect or an Originator Material Adverse
Effect.
(e)
Furnishing of Information and Inspection of Receivables
. Each Originator will furnish or cause to be furnished to the Buyer, the
Borrower (as the Buyer's assignee) and the Administrative Agent (as the
Borrower's assignee) from time to time such information with respect to the
Pool Receivables as the Buyer, the Borrower or the Administrative Agent or any
Lender may reasonably request. Each Originator will, at such Originator's
reasonable expense, at reasonable times during normal business hours with
reasonable prior written notice to such Originator, (i) permit the Buyer
and/or the Administrative Agent or their agents or representatives to (A)
examine and make copies of and abstracts from the books and records relating
to the Pool Receivables and the Related Rights, (B) visit the offices and
properties of such Originator for the purpose of examining such books and
records and (C) discuss matters relating to the Pool Receivables sold by it
hereunder, the Related Rights or such Originator's performance under the Loan
Documents to which it is a party with any of the officers, directors,
employees or independent public accountants (subject to such accountants'
customary policies and procedures) of such Originator (provided that
representatives of such Originator are present and have the opportunity to
participate during such discussions) having knowledge of such matters and (ii)
without limiting the provisions of clause (i) above, during normal business
hours, at such Originator's reasonable expense, upon reasonable prior written
notice from the Buyer or the Administrative Agent, permit certified public
accountants or other auditors acceptable to the Administrative Agent to
conduct a review of its books and records with respect to the Pool Receivables
and the Related Rights. Notwithstanding the foregoing, unless a Purchase and
Contribution Termination Event has occurred and is continuing, the
Administrative Agent shall not exercise such rights clause (i) and clause (ii)
more often than one time each during any calendar year with respect to all of
the Originators, taken as a whole, and such exercise shall be at the
Originators' expense.
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(f)
Payments on Receivables
. Each Originator will instruct all Account Debtors in respect of Subject
Receivables to deliver payments on the Pool Receivables to an Intermediate
Account or a Borrower Controlled Account. If any payments on the Pool
Receivables or other Collections are received by an Originator, it shall hold
such payments in trust for the benefit of the Administrative Agent (on behalf
of itself and the other Secured Parties under the ABL Credit Agreement) and
promptly (but in any event within two (2) Business Days after receipt thereof
by Borrower) remit such funds into an Intermediate Account, a Borrower
Controlled Account or Collateral Agent Deposit Account (subject to netting
against amounts then payable by Buyer to such Originator). The Originators
shall not instruct or permit any payments other than payments in respect of
Pool Receivables and Related Assets to be made to any Intermediate Account or
Borrower Controlled Account (except, with respect to any Borrower Controlled
Account, amounts payable to such Borrower (including for purposes of
on-payment to the Administrative Agent, the Lenders or as otherwise permitted
under the Loan Documents)). If any such funds are nevertheless deposited into
any Intermediate Account or Borrower Controlled Account, the Originators will
cause the Servicer to, within three (3) Business Days of an Originator
Responsible Officer having knowledge thereof, identify and transfer such funds
out of such account to (or pursuant to the instructions of) the Person
entitled to such funds. The Originators will not, and will not instruct any
other Person, to commingle collections on Subject Receivables with any other
funds. The Originators shall not add to, replace or terminate any of the
Intermediate Accounts (or any related lock-box or post office box) or make any
change in its (or their) instructions to the Account Debtors in respect of
Subject Receivables regarding payments to be made to the Intermediate Accounts
(or any related lock-box or post office box) other than instructing Account
Debtors to make payments to a different Intermediate Account (or related
lock-box or post office box), unless the Administrative Agent shall have
received (x) prior written notice of such addition, replacement, termination
or change (such consent not to be unreasonably withheld, delayed or
conditioned) and (y) a signed and acknowledged Cash Management Control
Agreement (or amendment thereto) with respect to any such new Intermediate
Accounts (or any related lock-box or post office box) confirming the
requirements of Section 2.21 of the ABL Credit Agreement have been met.
(g)
Sales, Liens, etc.
Except as otherwise provided herein, no Originator will sell, assign (by
operation of law or otherwise) or otherwise dispose of any Subject Receivable
or Related Rights, or assign any right to receive income in respect thereof,
or create or suffer to exist any Adverse Claim arising through or under it
upon, or with respect to, any Subject Receivable or Related Rights (including,
without limitation, by filing of any financing statement).
(h)
Extension or Amendment of Pool Receivables
.
No Originator will, or will permit the Servicer to, alter the delinquency
status or adjust the Outstanding Balance or otherwise modify the terms of any
Pool Receivable in any material respect, or amend, modify or waive, in any
material respect, any term or condition of any related Contract (other than
any alteration, adjustment, amendment, modification or waiver (x) made in
accordance with Originator's Credit and Collection Policy (including pursuant
to a request by the Originator's regulator or the Consumer Advocate, (y)
required to comply with federal, state or local laws, regulations, or
governmental or judicial orders or (z) made in respect of Reconveyable
Receivables or any other Receivable expressly excluded from the Borrowing
Base). Each Originator shall at its expense, timely and fully perform and
comply in all material respects with all provisions, covenants and other
promises required to be observed by it under the Contracts related to the Pool
Receivables, and timely and fully comply with the Credit and Collection Policy
with regard to each Pool Receivable and the related Contract (except to the
extent otherwise required to comply with federal, state or local laws,
regulations, governmental or judicial orders).
(i)
Change in Credit and Collection Policy
. Each Originator shall, in the event of any change to its Credit and
Collection Policy that is not subject to
Section 6.1(j)(ii)
below, provide written notice to the Buyer and the Administrative Agent
promptly and in any event not later than five (5) Business Days' following the
effectiveness thereof, of any change in or amendment to the Credit and
Collection
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Policy. Promptly following any change in the Credit and Collection Policy, the
applicable Originator will deliver a copy of the updated Credit and Collection
Policy identifying such change to the Administrative Agent.
(j)
Change in Business, Etc
. No Originator will (i) make any change in the character of its business that
could reasonably be expected to impair the collectability of any Subject
Receivable or (ii) make any change in the Credit and Collection Policy that
could reasonably be expected to materially and adversely affect the
collectability of the Subject Receivables, the credit quality of any Subject
Receivable, the enforceability of any related Contract or its ability to
perform its obligations under the related Contract or the Loan Documents
(other than any change implemented to comply with federal, state or local
laws, regulations, or governmental or judicial orders), in the case of either
clause (i)
or
(ii)
above, without the prior written consent of the Buyer, the Borrower (as the
Buyer's assignee) and the Administrative Agent acting, if required, at the
direction of the Required Lenders (as the Borrower's assignee).
(k)
Ownership Interest, Etc.
Each Originator shall, at its expense, take all action necessary or reasonably
desirable to establish and maintain a valid and enforceable ownership or first
priority perfected security interest in the Pool Receivables, the Related
Rights and Collections with respect thereto, free and clear of any Adverse
Claim (other than Excluded Amounts), in favor of the Buyer (and the Borrower
as the Buyer's assignee and the Administrative Agent as the Borrower's
assignee for the benefit of the Secured Parties under the ABL Credit
Agreement), including taking such action to perfect, protect or more fully
evidence the ownership or security interest of the Buyer (and the Borrower as
the Buyer's assignee and the Administrative Agent as the Borrower's assignee
for the benefit of the Secured Parties under the ABL Credit Agreement) as the
Buyer, the Borrower or the Administrative Agent may reasonably request. In
order to evidence such security interests, such Originator shall, from time to
time take such action, or execute and deliver such instruments as may be
necessary (including, without limitation, such actions as are reasonably
requested by the Buyer, the Borrower or by the Administrative Agent) to
maintain and perfect, as a first-priority interest, the Buyer's, the
Borrower's and the Administrative Agent's security interest in the Subject
Receivables, Contracts, Related Security and Related Rights. Such Originator
shall, from time to time and within the time limits established by law,
prepare and present to the Buyer, the Borrower and the Administrative Agent
for each such person's authorization and approval, all financing statements,
amendments, continuations or initial financing statements in lieu of a
continuation statement, or other filings necessary to continue, maintain and
perfect the Buyer's, the Borrower's and the Administrative Agent's security
interest as a first-priority interest. Notwithstanding anything else in the
Loan Documents to the contrary, such Originator shall not have any authority
to file a termination, partial termination, release, partial release, or any
amendment that deletes the name of a debtor or excludes collateral of any such
financing statements filed in connection with the Loan Documents, without the
prior written consent of the Administrative Agent.
(l)
Further Assurances.
Each Originator hereby authorizes and hereby agrees from time to time, at its
own expense, promptly to execute (if applicable) and deliver all further
instruments and documents, and to take all further actions, that may be
necessary or desirable, or that the Buyer, Borrower or the Administrative
Agent may reasonably request, to perfect, protect or more fully evidence the
purchases made hereunder and/or security interest granted to Borrower herein
or in the Subject Receivables or any Related Rights and/or security interest
granted herein or therein pursuant to this Agreement, the ABL Credit Agreement
or the other Loan Documents, or to enable the Buyer, the Borrower or the
Administrative Agent to exercise and enforce their respective rights and
remedies hereunder or under the ABL Credit Agreement or the other Loan
Documents. Without limiting the foregoing, such Originator hereby authorizes
the Buyer, Borrower and the Administrative Agent to, and will, upon the
request of the Buyer, Borrower or the Administrative Agent, at such
Originator's own expense, execute (if applicable) and file such financing
statements or continuation statements, or amendments thereto, and such other
instruments and documents,
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that may be necessary or desirable, or that the Buyer, Borrower or
Administrative Agent may reasonably request, to perfect, protect or evidence
any of the foregoing.
(m)
Mergers, Acquisitions, Sales, etc
. No Originator shall be a party to any merger, consolidation or other
organizational restructuring unless (A) the Buyer, the Borrower (as buyer's
assignee) and the Administrative Agent (as Borrower's assignee) have each
received notice prior to the consummation thereof, (B) the merger,
consolidation or restructuring is permitted by Section 7.02 of the Company
Credit Agreement, (C) any actions reasonably requested by the Buyer, the
Borrower or the Administrative Agent to protect the first priority security
interest of the Administrative Agent in and to the Subject Receivables to be
sold by such Originator hereunder and the Related Security and Related Rights,
have been taken by, and at the expense of, such Originator, (D) the surviving
entity of any such merger (if the Company or another Originator or any
Subsidiary thereof is a party to any such merger) shall have expressly assumed
all of the relevant Originator's obligations hereunder and (E) the Buyer, the
Borrower and the Administrative Agent have received executed copies of all
documents, certificates and opinions (including, without limitation, opinions
relating to corporate, bankruptcy and UCC matters) as the Buyer, the Borrower
or the Administrative Agent shall reasonably request. No Originator shall,
directly or indirectly sell, transfer, assign, convey or lease, whether in one
or a series of transactions (A) all or substantially all of its assets (except
in a transaction permitted by Section 7.02 of the Company Credit Agreement) or
(B) other than pursuant to this Agreement, any Subject Receivables, Related
Security or Related Rights or any interest therein.
(n)
Frequency of Billing
. Each Originator shall prepare and deliver (or cause to be prepared and
delivered) invoices with respect to all Subject Receivables in accordance with
the Credit and Collection Policies, but in any event no less frequently than
as required under the Contract related to such Subject Receivable.
(o)
Receivables Not to Be Evidenced by Promissory Notes or Chattel Paper
. No Originator shall take any action to cause or permit any Subject
Receivable created, acquired or originated by it to become evidenced by any
"instrument" or "chattel paper" (as defined in the applicable UCC).
(p)
Anti-Money Laundering/Sanctions Compliance
. The Company will, and/or will cause each of the other Originators to,
maintain in effect and enforce policies and/or procedures designed to ensure
compliance by the Originators, their Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws and
Sanctions. No Originator shall directly or knowingly indirectly use, and each
Originator shall procure that its Subsidiaries or joint venture partners and
its or their respective directors, officers, employees and agents shall not
directly or knowingly indirectly use, the proceeds of the sale of any
Receivable under this Agreement (i) to fund any activities or business of or
with any Person, or in any country or territory, that, at the time of such
funding, is the target of Sanctions, or (ii) in any other manner that would
result in a violation of Sanctions applicable to any party hereto or to any
Loan Document.
(q)
Fundamental Changes
. Such Originator shall not make any change in its legal name or location of
organization or any other change in its identity or corporate structure that
could impair or otherwise render any UCC financing statement filed in
connection with this Agreement, the Borrower Purchase and Contribution
Agreement or the ABL Credit Agreement "seriously misleading" as such term (or
similar term) is used in the applicable UCC, in each case, unless the Buyer,
Borrower and the Administrative Agent have each received ten (10) ten days'
prior notice thereof (or such shorter period as the Administrative Agent may
agree in its discretion and been reasonably satisfied that all other action to
perfect and protect the interests of the Buyer, Borrower and the Administrative
Agent), on behalf of the Secured Parties, in and to the Subject Receivables to
be sold by it hereunder and other Related Rights, as reasonably requested by
the Buyer, Borrower or the Administrative Agent shall have been taken by, and
at
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the expense of, such Originator (including the delivery of any legal opinions
reasonably requested by the Administrative Agent, the filing of any UCC
financing statements or amendments thereto, the receipt of certificates and
other requested documents from public officials and all such other actions
required pursuant to
Section 7.3
).
SECTION 6.2
Separateness Covenants
. Each Originator hereby acknowledges that this Agreement and the other Loan
Documents are being entered into in reliance upon the Borrower's and the
Buyer's identity as a legal entity separate from such Originator and its
Affiliates. Therefore, from and after the date hereof, each Originator shall
take all reasonable steps necessary to make it apparent to third Persons that
the Borrower and the Buyer is an entity with assets and liabilities distinct
from those of such Originator and any other Person, and is not a division of
such Originator, its Affiliates or any other Person. Without limiting the
generality of the foregoing and in addition to and consistent with the other
covenants set forth herein, such Originator shall take such actions as shall
be required in order that:
(a) such Originator (other than the Contributing Originator, solely in
accordance with its rights and obligations under the Borrower's and the
Buyer's limited liability company agreement) shall not be involved in the day
to day management of the Borrower or the Buyer;
(b) such Originator shall maintain separate corporate records and books of
account from the Borrower and from the Buyer and in a manner such that it will
not be difficult or costly to segregate, ascertain or otherwise identify the
assets and liabilities of such Originator, including any Excluded Receivables
and Non-Commodity Related Receivables, and shall otherwise observe corporate
formalities (to the extent that it and the Borrower and/or the Buyer have
offices in the same location, there shall be a fair and appropriate allocation
of overhead costs between them, and each shall bear its fair share of such
expenses);
(c) the financial statements and books and records of such Originator shall
be prepared after the date of creation of the Borrower and the Buyer to
reflect and shall reflect the separate existence of the Borrower and the Buyer;
provided
, that the Borrower's and the Buyer's assets and liabilities may be included
in a consolidated financial statement issued by an Affiliate of the Borrower
and the Buyer;
provided
,
however
, that any such consolidated financial statement or the loans thereto shall
make clear that the Borrower's and the Buyer's assets are not available to
satisfy the obligations of such Affiliate;
(d) except in connection with the servicing of the Receivables, (i) such
Originator shall maintain its assets (including, without limitation, deposit
accounts) separately from the assets (including, without limitation, deposit
accounts) of the Borrower and the Buyer and (ii) the Originator's assets, and
records relating thereto, have not been, are not, and shall not be, commingled
with those of the Borrower and/or the Buyer;
(e) such Originator shall not conduct any of the business of the Borrower
and/or the Buyer in its own name;
(f) except as required by the Loan Documents, such Originator shall not pay
any liabilities of the Borrower and/or the Buyer out of its own funds or
assets;
(g) except as required by the Loan Documents, such Originator shall not
assume or guarantee or become obligated for the debts of the Borrower and/or
the Buyer or hold out its credit as being available to satisfy the obligations
of the Borrower and/or the Buyer;
(h) such Originator shall not acquire obligations of the Borrower and/or
the Buyer;
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(i) such Originator shall identify and hold itself out as a separate and
distinct entity from the Borrower and from the Buyer;
(j) such Originator shall correct any known misunderstanding respecting its
separate identity from the Borrower and from the Buyer;
(k) such Originator shall maintain an arm's-length relationship with the
Buyer; shall not enter into, or be a party to, any transaction with the Buyer,
except in the ordinary course of its business and on terms which are
intrinsically fair and not less favorable to it than would be obtained in a
comparable arm's-length transaction with an unrelated third party;
(l) from and after the Effective Date, (i) not less than one member of the
Buyer's board of managers (the "
Independent Manager
") shall be a natural person who (A) shall not have been at the time of such
Person's appointment or at any time during the preceding five years and shall
not be as long as such person is a director or manager of the Buyer (1) a
director, officer, employee, partner, shareholder, member, manager or
Affiliate of any of the following Persons (collectively, the "
Independent Parties
"): the Servicer, any of the Originators, the Company or any of their
respective Subsidiaries or Affiliates (other than the Borrower or another
special purpose entity which is a Subsidiary or Affiliate of the Servicer or
the Company), (2) a supplier to any of the Independent Parties, (3) the
beneficial owner (at the time of such individual's appointment as an
Independent Manager or at any time thereafter while serving as an Independent
Manager) of any of the outstanding membership or other equity interests of the
Servicer, the Company or any of their respective Subsidiaries or Affiliates
having general voting rights, (4) a Person controlling or under common control
with any director, officer, employee, partner, shareholder, member, manager,
affiliate or supplier of any of the Independent Parties, or (5) a member of
the immediate family of any director, officer, employee, partner, shareholder,
member, manager, affiliate or supplier of any of the Independent Parties; (B)
has not less than three years' experience in serving as an independent
director or manager for special purpose vehicles engaged in securitization
and/or structured financing transactions, (C) is an independent director or
manager provided by a nationally recognized company that provides independent
directors or managers and also provides other corporate services in the
ordinary course of business; and (D) is otherwise reasonably acceptable to the
Administrative Agent as evidenced in a writing signed by the Administrative
Agent;
provided
,
however
, that the same individual may serve as Independent Manager for each of the
Company and the ABL Borrower. Under this
clause (l)
, the term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of management, policies or activities
of a Person, whether through ownership of voting securities or general
partnership or managing member interests, by contract or otherwise.
"Controlling" and "controlled" shall have correlative meanings. Without
limiting the generality of the foregoing, a Person shall be deemed to Control
any other Person in which it owns, directly or indirectly, a majority of the
ownership interests; and (ii) the operating agreement of the Buyer shall
provide that: (A) the Buyer's board of managers or other governing body shall
not approve, or take any other action to cause the filing of, a voluntary
bankruptcy petition with respect to the Buyer, a dissolution or merger of the
Buyer, an assignment for the benefit of creditors or a sale of all or
substantially all of its assets, in any case unless the Independent Manager
shall approve the taking of such action in writing before the taking of such
action, and (B) such provision and each other provision requiring an
Independent Manager cannot be amended without the prior written consent of the
Independent Manager;
(m) the Independent Manager shall not at any time serve as a trustee in
bankruptcy for the Buyer, the Borrower, the Servicer, any Originator or any of
their respective Affiliates; and
(n) such Originator shall not pay the salaries of the Buyer's employees, if
any.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF SUBJECT RECEIVABLES
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SECTION 7.1
Rights of the Buyer
. Each Originator hereby authorizes the Buyer, the Servicer or their
respective designees or assignees (including, without limitation, the Borrower
and the Administrative Agent) to take any and all steps in such Originator's
name necessary or desirable, in their respective determination, to collect all
amounts due under any and all Subject Receivables sold or otherwise conveyed
or purported to be conveyed by it hereunder, including, without limitation,
endorsing the name of such Originator on checks and other instruments
representing Collections and enforcing such Subject Receivables and the
provisions of the related Contracts that concern payment and/or enforcement of
rights to payment;
provided
,
however
, the Buyer, Borrower or Administrative Agent shall not take any of the
foregoing actions unless an Event of Default has occurred and is continuing
and any such action may only be taken to the extent permitted by, and in
accordance with, applicable law or regulation..
SECTION 7.2
Responsibilities of the Originators
. Anything herein to the contrary notwithstanding:
(a) Each Originator shall perform its obligations hereunder, and the
exercise by the Buyer or its designee of its rights hereunder shall not
relieve such Originator from such obligations.
(b) None of the Buyer, the Borrower, the Lenders or the Administrative
Agent shall have any obligation or liability to any Account Debtor or any
other third Person with respect to any Subject Receivables, Contracts related
thereto or any other related agreements, nor shall the Buyer, the Lenders or
the Administrative Agent be obligated to perform any of the obligations of
such Originator thereunder.
(c) Each Originator hereby grants to the Buyer, the Borrower (as assignee
of Buyer) and the Administrative Agent (as assignee of Borrower for the
benefit of the Secured Parties under the ABL Credit Agreement) an irrevocable
power-of-attorney, with full power of substitution, coupled with an interest,
during the occurrence and continuation of an Event of Default to take in the
name of such Originator all steps necessary or advisable to endorse, negotiate
or otherwise realize on any writing or other right of any kind held or
transmitted by such Originator or transmitted or received by the Buyer or
Borrower (as assignee of Buyer) or the Administrative Agent (as assignee of
Borrower for the benefit of the Secured Parties under the ABL Credit
Agreement) (whether or not from such Originator) in connection with any
Subject Receivable sold or otherwise conveyed or purported to be conveyed by
it hereunder or Related Right provided that any such action may only be taken
to the extent permitted by, and in accordance with, applicable law or
regulation..
SECTION 7.3
Further Action Evidencing Purchases
. On or prior to the Purchase Agreement Effective Date, each Originator shall
mark or code its master data processing records evidencing Subject Receivables
to evidence that the Subject Receivables have been transferred in accordance
with this Agreement and none of the Originators or Servicer shall change or
remove such notation with respect to any Subject Receivable without the
consent of the Buyer, Borrower and the Administrative Agent. Each Originator
agrees that from time to time, at its expense, it will promptly execute and
deliver all further instruments and documents, and take all further action
that the Buyer, Borrower the Servicer or the Administrative Agent may
reasonably request in order to perfect, protect or more fully evidence the
Subject Receivables and Related Rights purchased by the Buyer hereunder, or to
enable the Buyer, the Borrower (as the Buyer's assignee) or the Administrative
Agent (as Borrower's assignee) to exercise or enforce any of its rights
hereunder. Without limiting the generality of the foregoing, upon the
reasonable request of the Buyer, the Borrower, or the Administrative Agent,
such Originator will execute (if applicable), authorize and file such
financing or continuation statements, or amendments thereto or assignments
thereof, and such other instruments or notices, as may be necessary or
appropriate.
Each Originator hereby authorizes the Buyer or its designee or assignee
(including, without limitation, the Borrower and the Administrative Agent) to
file one or more financing or continuation statements, and amendments thereto
and assignments thereof, relative to all or any of the Subject Receivables and
Related
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Rights sold or otherwise conveyed or purported to be conveyed by it hereunder.
If any Originator fails to perform any of its agreements or obligations under
this Agreement, the Buyer or its designee or assignee (including, without
limitation, the Borrower and the Administrative Agent) may (but shall not be
required to) itself perform, or cause the performance of, such agreement or
obligation, and the expenses of the Buyer or its designee or assignee
(including, without limitation, the Borrower or the Administrative Agent)
incurred in connection therewith shall be payable by such Originator.
SECTION 7.4
Application of Collections
. Any payment by an Account Debtor in respect of any indebtedness owed by it
to any Originator pursuant to a Subject Receivable shall, except as otherwise
specified by such Account Debtor or required by Applicable Law and unless
otherwise instructed by the Servicer or the Administrative Agent, be applied
as a Collection of any Subject Receivable or Subject Receivables of such
Account Debtor to the extent of any amounts then due and payable thereunder
(such application to be made starting with the oldest outstanding Subject
Receivable or Subject Receivables) before being applied to any other
indebtedness of such Account Debtor as a collection of the oldest outstanding
indebtedness of such Account Debtor.
SECTION 7.5
Performance of Obligations
. EACH ORIGINATOR SHALL (I) PERFORM ALL OF ITS OBLIGATIONS, IF ANY, UNDER THE
CONTRACTS RELATED TO THE SUBJECT RECEIVABLES GENERATED BY SUCH ORIGINATOR TO
THE SAME EXTENT AS IF INTERESTS IN SUCH SUBJECT RECEIVABLES HAD NOT BEEN
TRANSFERRED HEREUNDER, BUT ONLY TO THE EXTENT THAT SUCH OBLIGATIONS ARE NOT
INCLUDED IN THE SUBJECT RECEIVABLES OR RELATED RIGHTS SOLD OR PURPORTEDLY SOLD
TO THE BUYER HEREUNDER, AND THE EXERCISE BY THE BUYER OR THE ADMINISTRATIVE
AGENT OF ITS RIGHTS HEREUNDER SHALL NOT RELIEVE ANY ORIGINATOR FROM ANY SUCH
OBLIGATIONS AND (II) PAY WHEN DUE ANY TAXES IMPOSED UPON IT OR UPON ITS INCOME
OR PROFITS OR IN RESPECT OF ITS PROPERTY, IN EACH CASE INCLUDING IN ITS
CAPACITY AS A WITHHOLDING AGENT, INCLUDING, WITHOUT LIMITATION, ANY SALES OR
OTHER TAXES PAYABLE BY SUCH ORIGINATOR IN CONNECTION WITH THE SUBJECT
RECEIVABLES GENERATED BY SUCH ORIGINATOR AND THEIR CREATION AND SATISFACTION,
EXCEPT TO THE EXTENT (A) ANY SUCH TAX IS BEING CONTESTED IN GOOD FAITH AND BY
APPROPRIATE PROCEEDINGS AS TO WHICH NO SUBJECT RECEIVABLE, RELATED SECURITY OR
RELATED RIGHTS WOULD BECOME SUBJECT TO FORFEITURE OR LOSS AS A RESULT OF SUCH
CONTEST AND FOR WHICH ADEQUATE RESERVES HAVE BEEN ESTABLISHED IN ACCORDANCE
WITH GAAP OR (B) THE FAILURE TO PAY OR DISCHARGE THE SAME WOULD NOT REASONABLY
BE EXPECTED TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, AN ORIGINATOR MATERIAL
ADVERSE EFFECT.
ARTICLE VIII
THE SERVICER AND SERVICING OF SUBJECT RECEIVABLES
SECTION 8.1
Servicing.
(a)
Appointment
. The servicing, administration and collection of the Pool Receivables shall
be conducted by a Person (the "
Servicer
") so designated from time to time in accordance with this
Section 8.1
. HECO is hereby designated as, and hereby agrees to perform the duties and
obligations of, the Servicer pursuant to the terms of this Agreement. The
Servicer may delegate any of its duties and responsibility to agents and
outside collection agencies in accordance with its customary practices
including, without limitation, to any other Originator, subject to compliance
with Applicable Law;
provided
, that in all cases, HECO shall remain liable for the performance of such
duties and responsibilities.
(b)
Servicing Standard
. The Servicer shall take or cause to be taken all such actions as may be
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necessary or advisable to collect and service each Pool Receivable from time
to time, all in accordance with applicable laws, rules and regulations, with
reasonable care and diligence and, in any event with no less care and
diligence than it would exercise in the collection and servicing of its own
receivables.
(c)
Servicing Fees
. In consideration of the Servicer's agreement to act hereunder, the Buyer
agrees to pay over to the Servicer a fee (the "
Servicing Fee
") equal to $90,000 per month, as compensation for its servicing activities.
The Servicer shall also be entitled to receive on each Interest Payment Date
all of the Servicer's reasonable and documented out-of-pocket costs and
expenses in connection with servicing, administering and collecting the Pool
Receivables ("
Servicing Expenses
"). Such compensation and expenses shall be payable on each Interest Payment
Date to the extent funds are available after the payment of any other
Obligations due and payable on such Interest Payment Date.
SECTION 8.2
Purchase Report
. On the Effective Date and on the 20
th
day of each Fiscal Month occurring in or after the month following the
Purchase Agreement Effective Date (each such date, a "
Monthly Purchase Report Date
"), the Servicer shall deliver to the Administrative Agent, the Buyer and each
Originator a report in substantially the form of
Exhibit A
(each such report being herein called a "
Purchase Report
") (which may be combined with the Borrowing Base Certificate to be delivered
to the Administrative Agent) setting forth, among other things:
(a) Subject Receivables purchased by the Buyer from the Originators on the
Effective Date (in the case of the Purchase Report to be delivered on the
Effective Date);
(b) Subject Receivables purchased by the Buyer from the Originators during
the Fiscal Month immediately preceding such Monthly Purchase Report Date (in
the case of each subsequent Purchase Report);
(c) Receivables designated as Excluded Receivables and any Excluded
Amounts; and
(d) Reconveyed Receivables and Reconveyable Receivables.
ARTICLE IX.
PURCHASE AND CONTRIBUTION TERMINATION EVENTS
SECTION 9.1
Purchase and Contribution Termination Events
. Each of the following events or occurrences described in this
Section 9.1
shall constitute a "
Purchase and Contribution Termination Event
" (each event which with notice or the passage of time or both would become a
Purchase and Contribution Termination Event being referred to herein as an "
Unmatured Purchase and Contribution Termination Event
"):
(a) an Event of Default shall have occurred under the ABL Credit Agreement;
or
(b) any Originator shall fail to make when due any payment or deposit to be
made by it under this Agreement or any other Loan Document to which it is a
party and such failure shall remain unremedied for two (2) Business Days; or
(c) any representation or warranty made or deemed to be made by any
Originator (or any of its officers), including in its capacity as Servicer,
under or in connection with this Agreement, any other Loan Documents to which
it is a party, or any other information or report delivered by it pursuant
hereto or thereto shall prove to have been incorrect or untrue in any material
respect when made or deemed made or delivered;
provided
, that no breach of a representation or warranty set forth in
Section 5.1(k)
,
Section 5.1(l)
,
Section 5.1(w)
,
Section 5.1(z)
or
Section 5.1(aa)
shall constitute a Purchase and Contribution
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Termination Event pursuant to this
clause (c)
if the applicable Originator has complied with
Section 3.4(b)
hereof with respect to such breach;
(d) any Originator, including in its capacity as servicer, shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or any other Loan Document to which it is a party on its part to be
performed or observed and such failure, solely to the extent capable of cure,
shall continue unremedied for thirty (30) days; or
(e) any Originator ceases to be Solvent.
SECTION 9.2
Remedies
.
(a)
Optional Termination
. Upon the occurrence and during the continuation of a Purchase and
Contribution Termination Event, the Buyer (and not the Servicer), with the
prior written consent of the Administrative Agent shall have the option, by
notice to the Originators (with a copy to the Administrative Agent and the
Lenders), to declare the Purchase Facility terminated and/or replace the
Servicer hereunder.
(b)
Remedies Cumulative
. Upon any termination of the Purchase Facility pursuant to
Section 9.2(a)
, the Buyer (and the Borrower as Buyer's assignee and the Administrative Agent
as Borrower's assignee) shall have, in addition to all other rights and
remedies under this Agreement, all other rights and remedies provided under
the UCC of each applicable jurisdiction and other Applicable Laws, which
rights shall be cumulative.
ARTICLE X
INDEMNIFICATION
SECTION 10.1
Indemnities by the Originators
. Without limiting any other rights that the Buyer may have hereunder or under
Applicable Law, the Company (whether as Originator or Servicer) jointly and
severally, and each other Originator severally, hereby agrees to indemnify the
Buyer, the Borrower (as assignee of the Buyer), the Administrative Agent (as
assignee of the Borrower for the benefit of the Secured Parties under the ABL
Credit Agreement), each Lender and their respective Related Parties (each of
the foregoing Persons being individually called a "
Purchase and Contribution Indemnified Party
") from and against any loss, liability, expense, damage or injury suffered or
sustained by reason of (i) any failure of such Originator to comply with any
of its covenants, obligations or agreements contained in this Agreement or any
other Loan Document to which it is a party or such Originator's gross
negligence (ii) the breach of any representation or warranty made or deemed
made by such Originator under or in connection with this Agreement or any of
the other Loan Documents to which it is a party or (iii) willful misconduct in
the performance of its duties or obligations under this Agreement or any other
Loan Document to which it is a party, including any judgment, award,
settlement, attorney costs and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim (all
of the foregoing being collectively referred to as, "
Purchase and Contribution Indemnified Amounts
"). Without limiting or being limited by the foregoing, the Company jointly
and severally and each other Originator, severally, shall pay on demand to
each Purchase and Contribution Indemnified Party any and all documented
amounts necessary to indemnify such Purchase and Contribution Indemnified
Party from and against any and all Purchase and Contribution Indemnified
Amounts relating to or resulting from any of the following:
(a) the breach of any representation or warranty made or deemed made by
such Originator (or any employee, officer or agent of such Originator) under
or in connection with this Agreement or any of the other Loan Documents to
which it is a party, or any information or report delivered by or on behalf of
such Originator pursuant hereto or thereto which shall have been untrue or
incorrect
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when made or deemed made or delivered;
(b) the transfer by such Originator of any interest in any Subject
Receivable or Related Right sold or purportedly sold to Buyer hereunder other
than the transfer of any Subject Receivable and Related Security to the Buyer
pursuant to this Agreement and the grant of a security interest to the Buyer
pursuant to this Agreement;
(c) the failure by such Originator to comply with the terms of any Loan
Document to which it is a party or with any Applicable Law with respect to any
Subject Receivable or the related Contract; or the failure of any Subject
Receivable or the related Contract to conform to any such Applicable Law on or
prior to the applicable Sale Date for such Subject Receivable;
(d) the Buyer not having of an enforceable ownership interest, or a first
priority perfected security interest, in the Pool Receivables (and all Related
Security) originated by such Originator against all Persons (including any
bankruptcy trustee or similar Person), in either case, free and clear of any
Adverse Claim (other than any Adverse Claim of the Borrower (as assignee of
the Buyer) or the Administrative Agent (as an assignee of the Borrower));
(e) the failure of such Originator to have filed, or any delay in filing,
financing statements, financing statement amendments, continuation statements
or other similar instruments or documents under the UCC of any applicable
jurisdiction or other Applicable Laws with respect to the transfer by such
Originator to the Buyer of any Pool Receivable or the Related Rights;
(f) any suit or claim related to the Pool Receivables originated by such
Originator (including any products liability or environmental liability claim
arising out of or in connection with the generation, transmission and delivery
of electricity or other property, products or services that are the subject of
any Pool Receivable originated by such Originator) that is related to any act
or omission by such Originator on or prior to the applicable Sale Date for
such Receivable;
(g) any dispute, claim, offset or defense (other than bankruptcy or
financial inability to pay) of the Account Debtor to the payment of any
Receivable in the Receivables Pool (including a defense based on such
Receivable's or the related Contract's not being a legal, valid and binding
obligation of such Account Debtor enforceable against it in accordance with
its terms) or any other claim resulting from the sale of the goods, products
or services related to such Receivable or the furnishing or failure to furnish
such goods, products or services, in each case, that is related to any act or
omission by such Originator on or prior to the applicable Sale Date for such
Receivable;
(h) any failure of such Originator to perform any its duties or obligations
in accordance with the provisions hereof and of each other Loan Document to
which it is a party related to Pool Receivables or to timely and fully comply
with the Credit and Collection Policy in regard to each Pool Receivable, in
each case, on or prior to the applicable Sale Date for such Receivable;
(i) the commingling by such Originator of Collections of Pool Receivables
at any time with other funds;
(j) the failure or delay of such Originator to provide any Account Debtor
with an invoice or other evidence of indebtedness that such Originator is
obligated to provide;
(k) any investigation, litigation or proceeding (actual or threatened) that
is related to any act or omission by such Originator related to this Agreement
or any other Loan Document to which it is a party or in respect of any Pool
Receivable or any Related Rights;
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(l) the failure by such Originator to pay when due any Taxes required to be
paid by such Originator, including, without limitation, sales, excise or
personal property Taxes;
(m) [reserved]; or
(n) any Tax (without duplication for a tax described in
clause (l)
above) or governmental fee or charge (other than a Tax), all interest and
penalties thereon or with respect thereto, and all out-of-pocket costs and
expenses, including without limitation the fees, charges and disbursements of
legal counsel in defending against the same, which are required to be paid by
the relevant Originator in connection with the transfer of the Subject
Receivables and Related Rights by such Originator to the Buyer;
provided
that, in each case, such indemnity shall not be available to any Purchase and
Contribution Indemnified Party to the extent that such Purchase and
Contribution Indemnified Amounts (x) are determined by a court of competent
jurisdiction in a final and non-appealable judgment to have resulted from such
Purchase and Contribution Indemnified Party's gross negligence or willful
misconduct or; (y) include losses in respect of Pool Receivables that are
uncollectible solely on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Account Debtor and in no event shall any
Originator or Servicer be liable on any theory of liability for any special,
indirect, consequential or punitive damages (including, without limitation,
any loss of profits, business or anticipated savings).
If for any reason the indemnification provided above in this
Section 10.1
is unavailable to a Purchase and Contribution Indemnified Party or is
insufficient to hold such Purchase and Contribution Indemnified Party harmless
(in each case other than by reason of the proviso in the preceding sentence),
then the Company jointly and severally and each of the other Originators,
severally, shall contribute to the amount paid or payable by such Purchase and
Contribution Indemnified Party to the maximum extent permitted under
Applicable Law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1
Amendments, etc.
.
(a) The provisions of this Agreement may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and executed by the Buyer and each Originator, with the prior written consent
of the Borrower (as Buyer's assignee) and Administrative Agent (as Borrower's
assignee).
(b) No failure or delay on the part of any party hereto or any third-party
beneficiary in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on any party hereto in any case
shall entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by any party hereto under this Agreement shall, except as
may otherwise be stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval under this Agreement shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
(c) The Loan Documents contain a final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter
thereof and shall constitute the entire agreement among the parties hereto
with respect to the subject matter thereof, superseding all prior oral or
written understandings.
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SECTION 11.2
Notices, etc
. All notices and other communications provided for hereunder shall, unless
otherwise stated herein, be in writing (including electronic mail
communication) and shall be delivered or sent by electronic mail, or by
overnight mail, to the intended party at the mailing or electronic mail
address of such party set forth under its name on Schedule IV hereof or at
such other address or electronic mail address as shall be designated by such
party in a written notice to the other parties hereto or in the case of the
Administrative Agent or any Lender, at their respective address for notices
pursuant to the ABL Credit Agreement. All such notices and communications
shall be effective (i) if delivered by overnight mail, when received, and (ii)
if transmitted by facsimile or electronic mail, when sent, receipt confirmed
by telephone or no delivery failure error messages or other electronic means
in case of electronic email.
SECTION 11.3
No Waiver; Cumulative Remedies
. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Without limiting the foregoing, each Originator
hereby authorizes the Buyer, the Administrative Agent and each Lender (each a "
Set-off Party
"), at any time and from time to time, to the fullest extent permitted by law,
to set off, against any obligations of such Originator to such Set-off Party
arising in connection with the Loan Documents to which such Originator, as
applicable, is a party (including, without limitation, amounts payable
pursuant to
Section 9.1
) that are then due and payable or that are not then due and payable but have
accrued, any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and any and all indebtedness at any time owing
by, such Set-off Party to or for the credit or the account of such Originator.
SECTION 11.4
Binding Effect; Assignability
. This Agreement shall be binding upon and inure to the benefit of the Buyer
and each Originator and their respective successors and permitted assigns
(including the Borrower as the Buyer's assignee and the Administrative Agent
as the Borrower's assignee). No Originator may assign any of its rights
hereunder or any interest herein without the prior written consent of the
Buyer, Borrower and the Administrative Agent, except as otherwise herein
specifically provided. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until terminated or such earlier time as
the parties hereto shall agree. The rights and remedies with respect to any
breach of any representation and warranty made by any Originator pursuant to
Article V and the indemnification and payment provisions of
Article X
and
Section 11.6
shall be continuing and shall survive any termination of this Agreement.
SECTION 11.5
Governing Law
. THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW
PROVISIONS THEREOF (EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF
PERFECTION OR PRIORITY OF THE INTERESTS OF THE BUYER, THE ADMINISTRATIVE AGENT
OR ANY LENDER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK).
SECTION 11.6
Costs, Expenses and Taxes
. In addition to the obligations of the Originators under Article IX, the
Company jointly and severally, and each other Originator, severally, hereby
agrees to pay on demand:
(a) to the Buyer (and any successor and permitted assigns thereof) and any
third-party beneficiary of the Buyer's rights hereunder all reasonable and
documented out-of-pocket costs and expenses in connection with the
preparation, negotiation, execution, delivery and administration of this
Agreement (together with all amendments, restatements, supplements, consents
and waivers, if any, from time to time hereto), including, without limitation,
(i) the reasonable fees, charges and disbursements of legal counsel
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for the Buyer (and any successor and permitted assigns thereof) and any
third-party beneficiary of the Buyer's rights hereunder with respect thereto
and with respect to advising any such Person as to their rights and remedies
under this Agreement and the other Loan Documents to which an Originator is a
party and (ii) reasonable accountants', auditors' and consultants' fees and
expenses for the Buyer (and any successor and permitted assigns thereof) and
any third-party beneficiary of the Buyer's rights hereunder incurred in
connection with the administration and maintenance of this Agreement or
advising any such Person as to their rights and remedies under this Agreement
or as to any actual or reasonably claimed breach of this Agreement by such
Originator or any other Loan Document to which an Originator , as applicable,
is a party;
(b) to the Buyer (and any successor and permitted assigns thereof) and any
third-party beneficiary of the Buyer's rights hereunder all reasonable
out-of-pocket costs and expenses (including the fees, charges and
disbursements of legal counsel), of any such Person incurred in connection
with the enforcement of any of their respective rights or remedies against an
Originator under the provisions of this Agreement and the other Loan Documents
to which such Originator, as applicable, is a party; and
(c) all stamp, franchise and other similar Taxes and fees payable in
connection with the execution, delivery, filing and recording of this
Agreement and the other Loan Documents to which an Originator, is a party, or
which are otherwise required to be delivered under this Agreement and agrees
to indemnify each Purchase and Contribution Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or omitting
to pay such Taxes and fees.
SECTION 11.7
CONSENT TO JURISDICTION
. (a) EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY,
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(b) EACH PARTY HERETO CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO IT AT
ITS ADDRESS SPECIFIED IN
SCHEDULE IV
. NOTHING IN THIS SECTION 11.7 SHALL AFFECT THE RIGHT OF THE PARTIES HERETO TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 11.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT.
SECTION 11.9
Captions and Cross References; Incorporation by Reference
. The various captions (including, without limitation, the table of contents)
in this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this
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Agreement to any Article, Section, Schedule or Exhibit, if specified, are to
such Article, Section, Schedule or Exhibit of this Agreement, as the case may
be. The Schedules and Exhibits hereto are hereby incorporated by reference
into and made a part of this Agreement.
SECTION 11.10
Execution in Counterparts
. This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart hereof by facsimile or other electronic means shall be equally
effective as delivery of an originally executed counterpart.
SECTION 11.11
Third-Party Beneficiaries
. By execution below, each Originator expressly acknowledges and agrees that
all of the Buyer's rights, title, and interests in, to, and under this
Agreement and all liens granted hereunder (but not its obligations), shall be
assigned by the Buyer to Borrower and by Borrower to the Administrative Agent
(for the benefit of the Secured Parties under the ABL Credit Agreement), and
each Originator irrevocably consents to such assignment. Each of the parties
hereto acknowledges and agrees that the Borrower, the Administrative Agent and
each of the other Secured Parties are third-party beneficiaries of the rights
of the Buyer arising hereunder and under the other Loan Documents to which any
Originator is a party, and notwithstanding anything to the contrary contained
herein or in any other Loan Document, upon the occurrence and during the
continuation of an Event of Default under the ABL Credit Agreement, the
Administrative Agent (as the total assignee of Buyer's rights hereunder), and
not the Buyer, shall have the sole right to exercise all such rights and
related remedies.
SECTION 11.12
No Proceeding
. Each Originator hereby agrees that it will not institute, or join any other
Person in instituting, against the Buyer any insolvency proceeding. Each
Originator further agrees that notwithstanding any provisions contained in
this Agreement to the contrary, the Buyer shall not, and shall not be
obligated to, pay any amount to such Originator pursuant to this Agreement
unless the Buyer has received funds which may, subject to the ABL Credit
Agreement, be used to make such payment. All payments to be made by the Buyer
under this Agreement shall be made exclusively out of Collections or monies
received by the Buyer from its shareholder(s) other than the initial share
capital. Any amount which the Buyer does not pay pursuant to the operation of
the preceding two sentences shall not constitute a claim (as defined in (s)101
of the Bankruptcy Code) against or corporate obligation of the Buyer by such
Originator for any such insufficiency unless and until the provisions of the
foregoing sentence are satisfied. The agreements in this
Section 11.12
shall survive any termination of this Agreement.
SECTION 11.13
Mutual Negotiations
. This Agreement and the other Loan Documents are the product of mutual
negotiations by the parties thereto and their counsel, and no party shall be
deemed the draftsperson of this Agreement or any other Loan Document or any
provision hereof or thereof or to have provided the same. Accordingly, in the
event of any inconsistency or ambiguity of any provision of this Agreement or
any other Loan Document, such inconsistency or ambiguity shall not be
interpreted against any party because of such party's involvement in the
drafting thereof.
SECTION 11.14
Limited Recourse
. Except as explicitly set forth herein, the obligations of the Buyer under
this Agreement or any other Loan Documents to which it is a party are solely
the obligations of the Buyer. No recourse under any Loan Document shall be had
against, and no liability shall attach to, any officer, employee, director, or
beneficiary, whether directly or indirectly, of the Buyer. The agreements in
this
Section 11.14
shall survive any termination of this Agreement.
SECTION 11.15
Limitation of Liability
. No claim may be made by any Originator against Buyer, any Credit Party or
their respective Affiliates, members, directors, officers, employees,
incorporators, attorneys or agents for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
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by this Agreement or any other Loan Document, or any act, omission or event
occurring in connection herewith or therewith; and each Originator hereby
waives, releases, and agrees not to sue upon any claim for any such special,
indirect, consequential or punitive damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
SECTION 11.16
Certain Defined Terms
. As used in this Agreement (including its Exhibits), the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"
ABL Credit Agreement
" has the meaning assigned to such term in the introductory statement.
"
Account Debtors
" has the meaning assigned to such term in the Background.
"
Administrative Agent
" has the meaning assigned to such term in the introductory statement.
"
Adverse Claim
" means any Lien other than a Permitted Lien; it being understood that any
Lien in favor of, or assigned to, the Borrower, as the Buyer's assignee, or
the Administrative Agent (for the benefit of the Secured Parties under the ABL
Credit Agreement), as the Borrower's assignee, shall not constitute an Adverse
Claim.
"
Agreement
" has the meaning assigned to such term in the preamble.
"
Buyer
" has the meaning assigned to such term in the preamble.
"
Collections
" means, with respect to any Pool Receivable: (a) all funds that are received
by the Originators or the Buyer in payment of any amounts owed in respect of
such Pool Receivable (including purchase price, finance charges, interest and
all other charges), or applied to amounts owed in respect of such Pool
Receivable and (b) all other proceeds of such Pool Receivable.
"
Company
" has the meaning assigned to such term in the preamble.
"
Company Credit Agreement
" means that certain Third Amended and Restated Credit Agreement, dated as of
May 14, 2021, by and among the Company, as Borrower, the lenders from time to
time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent,
Swingline Lender and Issuing Bank (as amended, amended and restated,
supplemented or modified from time to time).
"
Contract
" means, with respect to any Receivable, any and all contracts, instruments,
agreements, terms, leases, invoices, notes or other writings pursuant to which
such Receivable arises or that evidence such Receivable or under which an
Account Debtor becomes or is obligated to make payment in respect of such
Receivable.
"
Contributing Originator
" means HECO.
"
Credit and Collection Policy
" means, as the context may require, those receivables credit and collection
policies and practices of the Originators in effect on the Purchase Agreement
Effective Date and described in Schedule VI to this Agreement, as modified in
compliance with this Agreement.
"
Cut-Off Date
" has the meaning assigned to such term in
Section 1.1
.
29
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"
Days' Sales Outstanding
" means, for any calendar month, an amount computed as of the last day of such
calendar month equal to: (a) the average of the Outstanding Balance of all
Pool Receivables as of the last day of each of the three most recent calendar
months ended on the last day of such calendar month,
divided by
(b) (i) the aggregate credit sales made by the Originators during the three
calendar months ended on the last day of such calendar month, divided by (ii)
90.
"
Dilution Amount
" has the meaning assigned to such term in
Section 3.4(b)
.
"
Dilution Factor
" means any of the following factors giving rise to dilution: (i) any failure
by an Originator to deliver electric power or to perform any services or
otherwise perform as required by the underlying Contract or invoice, (ii) any
change, cash discount, rebate, allowance, cancellation of any terms of such
contract, invoice or billing error by an Originator or any other party that
generates such invoice, applied customer deposits or any other adjustment
applied to an invoice which, in each case, reduces the amount payable by an
Account Debtor on the related Pool Receivable and (iii) any setoff in respect
of any claim by the Account Debtor thereof (whether such claim arises out of
the same or a related transaction or an unrelated transaction).
"
Excluded Amounts
" means taxes and other amounts collected by any Originator for others
(including payments to the Public Benefit Fund and Green Infrastructure fees
(GEMS)) as listed in reasonably satisfactory detail on a certificate of a
Servicer Responsible Officer (as updated and delivered to the Administrative
Agent from time to time).
"
Excluded Receivables
" means Receivables of specific Account Debtors identified by 30 days prior
written notice to the Buyer (with a copy to the Servicer and the Administrative
Agent) in an aggregate amount outstanding not to exceed (i) zero until, and
including, November 20, 2025, (ii) $2,000,000 from and including, December 1,
2024 until, and including, November 30, 2026 and (iii) $10,000,000 from, and
including, December 1, 2026; provided, however, that after the occurrence and
during the continuation of an Event of Default under the ABL Credit Agreement,
Originators shall not be allowed to identify or designate additional Excluded
Receivables (it being understood and agreed that Receivables designated as
Excluded Receivables prior to the occurrence of such Event of Default shall
continue to be Excluded Receivables).
"
Final Payout Date
" means the date on which (i) no interest or principal in respect of the Loans
shall be outstanding, and (ii) all other amounts owing to the Lenders, the
Administrative Agent and the other Indemnitees under the Credit Agreement and
each of the other Loan Documents have been paid in full (other than
indemnification or other contingent obligations not yet due and owing).
"
HECO
" has the meaning assigned to such term in the preamble.
"
Initial Borrowing Date
" is defined in the ABL Credit Agreement.
"
Intermediate Account
" means each account in the name of the Buyer listed
Schedule V
to this Agreement (as such schedule is updated by the Buyer on or prior to the
Purchase Agreement Effective Date).
"
Joinder Agreement
" has the meaning assigned to such term in
Section 4.3(b)
.
"
Monthly Purchase Report Date
" has the meaning assigned to such term in
Section 8.2
.
"
Non-Commodity Related Receivables
" means accounts receivable resulting from (i) receivables other than for the
delivery, distribution and transmission of electricity and charges included as
30
US-DOCS\148030570.24
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part of the combined invoices for such electric power delivery and
transmission services, including those received from the Hawaii Authority for
Rapid Transportation (HART) for the construction and supply of infrastructure,
"joint pole" related billing, contributions in aid of construction, customer
advances, payments related to the privatization of the U.S. Army electric
systems, line extension (overhead and underground), interconnection fees,
damage claims, and revenue protection, (ii) receivables from temporary
services of the type set forth in Hawaiian Electric Tariff Rule 12 and
receivables from special facilities service request of the type set forth in
Hawaiian Electric Tariff Rule 13 section D, 5, and (iii) receivables from any
Affiliate (other than American Savings Bank, F.S.B. and any employees,
officers, directors or stockholders that are natural persons) resulting from
the delivery, distribution and transmission of electric power to such
Affiliate.
"
Originator Material Adverse Effect
" means any event, change or condition that, individually or in the aggregate,
has had, or would reasonably be expected to have a material adverse effect on
(i) the Subject Receivables sold by it hereunder, (ii) the ability of the
Originator to perform its obligations under this Agreement and any other Loan
Document to which the Originator is a party; or (iii) the material rights and
remedies of the Borrower (as Buyer's assignee) or the Administrative Agent (as
Borrower's assignee for the benefit of the Secured Parties under the ABL
Credit Agreement) under this Agreement and the other Loan Documents to which
the Originator is a party, including the legality, validity, binding effect or
enforceability of this Agreement and such other Loan Documents.
"
Originator Responsible Officer
" means the chief executive officer, president, vice president, chief
financial officer, chief administrative officer, secretary or assistant
secretary, treasurer or assistant treasurer, controller or other similar
officer of any Originator or any other responsible officer or employee of such
Originator designated in or pursuant to an agreement between such Originator
and the Administrative Agent.
"
Originators
" has the meaning assigned to such term in the preamble.
"
Outstanding Balance
" of any Receivable at any time means the then outstanding principal balance
thereof (after giving effect to any U.S. GAAP Ordinary Course Reserves).
"
Payment Date
" has the meaning assigned to such term in
Section 2.2
.
"
Person
" means an individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political
subdivision or agency thereof.
"
Pool Receivable
" means a Receivable in the Receivables Pool.
"
Purchase Agreement Effective Date
" has the meaning assigned to such term in
Section 4.1
.
"
Purchase and Contribution Indemnified Amounts
" has the meaning assigned to such term in
Section 10.1
.
"
Purchase and Contribution Indemnified Party
" has the meaning assigned to such term in
Section 10.1
.
"
Purchase and Contribution Termination Event
" has the meaning assigned to such term in
Section 9.1
.
31
US-DOCS\148030570.24
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"
Purchase Facility
" has the meaning assigned to such term in
Section 1.1
.
"
Purchase Price
" has the meaning assigned to such term in
Section 2.2
.
"
Purchase Report
" has the meaning assigned to such term in
Section 8.2
.
"
Purchase Termination Date
" has the meaning assigned to such term in
Section 1.4
.
"
Receivable
" means any indebtedness and other obligations owed to the Originators or the
Buyer by, or any right of the Buyer or any Originator to payment from or on
behalf of, an Account Debtor, whether constituting an account, chattel paper,
a payment intangible, an instrument or a general intangible, in each instance
arising in connection with such Originators' sale to electric utility
customers of electricity (including transmission, distribution and production
thereof), and includes, without limitation, the obligation to pay any finance
charges, fees and other charges with respect thereto, but excludes all
Non-Commodity Related Receivables. Payment obligations arising from such goods
or services in respect of any one billing cycle, including, without
limitation, payment obligations represented by an individual invoice or
agreement, shall constitute a Receivable separate from a Receivable consisting
of payment obligations arising from any such goods or services in respect of
any other billing cycle or any other transaction.
"
Receivables Pool
" means, at any time, all of the then outstanding Subject Receivables
purchased or acquired by the Buyer pursuant to this Agreement prior to the
Purchase Termination Date.
"
Reconveyable Receivable
" has the meaning assigned to such term in
Section 3.4(a)
.
"
Reconveyed Receivable
" has the meaning assigned to such term in
Section 3.4(d)
.
"
Related Rights
" has the meaning assigned to such term in
Section 1.1
.
"
Related Security
" with respect to any Receivable means:
(a) [reserved]
(b) all instruments and chattel paper that may evidence such Receivable;
(c) all security interests or liens and property subject thereto from time
to time purporting to secure payment of such Receivable, whether pursuant to
the Contract related to such Receivable or otherwise, together with all UCC
financing statements or similar filings relating thereto;
(d) all of the Buyer's and the Originator's rights, interests and claims
under the Contracts, including all rights to service and enforce the Contract
and all guaranties, indemnities, insurance and other agreements (including the
related Contract) or arrangements of whatever character from time to time
supporting or securing payment of such Receivable or otherwise relating to
such Receivable, whether pursuant to the Contract related to such Receivable
or otherwise; and
(e) all of the Buyer's rights, interests and claims hereunder and under the
other Loan Documents.
"
Sale Date
" has the meaning assigned to such term in
Section 1.2(b)
.
32
US-DOCS\148030570.24
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"
Servicer
" has the meaning assigned to such term in
Section 8.1(a)
.
"
Servicer Responsible Officer
" means the chief executive officer, president, vice president, chief
financial officer, chief administrative officer, secretary or assistant
secretary, treasurer or assistant treasurer, controller or other similar
officer of the Servicer or any other responsible officer or employee of the
Servicer designated in or pursuant to an agreement between the Servicer and
the Administrative Agent.
"
Servicing Expenses
" has the meaning assigned to such term in
Section 8.1(c)
.
"
Servicing Fee
" has the meaning assigned to such term in
Section 8.1(c)
.
"
Set-off Party
" has the meaning assigned to such term in
Section 11.3
.
"
Subject Receivable
" has the meaning assigned to such term in
Section 1.1
.
"
Unmatured Purchase and Contribution Termination Event
" has the meaning assigned to such term in
Section 9.1
.
"
U.S. GAAP Ordinary Course Reserves
" means any reductions to the Outstanding Balance of any Receivable properly
recorded in accordance with GAAP which relate to any discounts, chargebacks
and rebates incurred in the ordinary course of business.
[Signature Pages Follow]
33
US-DOCS\148030570.24
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IN WITNESS WHEREOF, the parties have caused this Agreement
to
be executed by
their
respective officers thereunto
duly
authorized as of the date first above written
.
HE AR INTER LLC,
as Buyer
By: HAWAIIAN ELECTRIC COMPANY, INC.
Its Member
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its President and
Chief Executive Officer
By: /s/ Paul K. Ito
Paul K. Ito
Its Senior Vice President,
Chief Financial Officer & Treasurer
HAWAIIAN ELECTRIC COMPANY, INC.,
as Servicer
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its President and
Chief Executive Officer
By: /s/ Paul K. Ito
Paul K. Ito
Its Senior Vice President,
Chief Financial Officer & Treasurer
HAWAIIAN ELECTRIC COMPANY, INC.
as an Originator
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its President and
Chief Executive Officer
By: /s/ Paul K. Ito
Paul K. Ito
Its Senior Vice President,
Chief Financial Officer & Treasurer
[Signature Page to the Intermediate Purchase and Contribution Agreement]
-------------------------------------------------------------------------------
MAUI ELECTRIC COMPANY, LIMITED,
as an Originator
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its Chairman and
President
By: /s/ Paul K. Ito
Paul K. Ito
Its Financial Vice President
and Treasurer
HAWAII ELECTRIC LIGHT COMPANY, INC.,
as an Originator
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its Chairman and
President
By: /s/ Paul K. Ito
Paul K. Ito
Its Financial Vice President
and Treasurer
[Signature Page to the Intermediate Purchase and Contribution Agreement]
-------------------------------------------------------------------------------
Schedule I
NAME AND LOCATION OF EACH ORIGINATOR
Originator Location
HAWAIIAN ELECTRIC COMPANY, INC. Hawaii
MAUI ELECTRIC COMPANY, LIMITED Hawaii
HAWAII ELECTRIC LIGHT COMPANY, INC. Hawaii
Schedule I
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
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Schedule II
LOCATION OF BOOKS AND RECORDS OF ORIGINATORS
Originator Location of Books and Records
HAWAIIAN ELECTRIC COMPANY, INC. 1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
MAUI ELECTRIC COMPANY, LIMITED 1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
HAWAII ELECTRIC LIGHT COMPANY, INC. 1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
Schedule II
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
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Schedule III
TRADE NAMES
None.
Schedule III
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
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Schedule IV
NOTICE ADDRESSES
If to the Buyer:
HE AR INTER LLC
P.O. Box 2750
Honolulu, Hawaii 96840
With a copy to each of:
Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
and
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
If to the Originators:
HAWAIIAN ELECTRIC COMPANY, INC.
c/o Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
MAUI ELECTRIC COMPANY, LIMITED
c/o Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
HAWAII ELECTRIC LIGHT COMPANY, INC.
c/o Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
With a copy to:
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
Schedule IV
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
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Schedule V
INTERMEDIATE ACCOUNTS
Originator Depositary Bank Address Account Number
To be updated prior to the Purchase Agreement Effective Date
Schedule V
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
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Schedule VI
CREDIT AND COLLECTION POLICY
[See attached]
Schedule VI
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
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REVENUE MANAGEMENT
-
CREDIT DEPARTMENT
CREDIT AND COLLECTION POLICY - COMMODITY
Effective Date April 30, 2024
1. Purpose
1.1. The purpose of this Credit and Collection Policy - Commodity is to set
forth the requirements for extending credit to customers for electric service,
including the establishment and re-establishment of credit, deposits to secure
payments of electric bills, and the disconnection and reconnection of service
for non-payment of electric bills.
2. Scope and Coverage
2.1. This Policy applies to all employees of the Company, whether
full-time, part-time, regular or temporary, who are responsible for processing
credit and collection transactions for customers with electric service,
including but not limited to handling customer requests for electric service,
extension of credit and other related transactions.
2.2. This Policy is intended to be consistent with and conform to all
applicable PUC Rules.
3. Definitions
Term Definition
CIS Customer Information System
Commodity Electric service
Company Hawaiian Electric Company, Inc., and its subsidiaries Maui
Electric Company, Ltd. and Hawai`i Electric Light Company, Inc.
Credit The ability of a customer to obtain electric service prior to making payment for such electric service.
Page 1 of 5
Credit and Collection Policy - Commodity
INTERNAL USE ONLY
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Customer The person, group of persons, firm,
corporation, association, institution,
government agency or civic body, in whose
name electric service is rendered.
1
Dunning A systematic process for tracking and communicating with
customers that owe money for electric service. The process
encompasses a series of escalating procedures intended to
ensure collection of accounts receivables for electric service.
Policy This Credit and Collection Policy - Commodity
PUC Rule The rules and rate schedules fixed by order of the
Public Utilities Commission of the State of Hawaii
2
Guidelines A written document pertaining to details that aid in
interpreting and processing credit and collection policy.
4. Credit Policy
4.1.
Establishment and Re-Establishment of Credit.
Each applicant for electric service will be required to establish or
reestablish their credit in one of the following manners before service will
be rendered
3
:
4.1.1. The applicant submits credit information or references satisfactory
to the Company;
4.1.2. The applicant establishes a record of prompt payment for service for
12 consecutive months;
4.1.3. The applicant is the owner of the premises to be served;
4.1.4. The applicant makes a cash deposit to secure payment of bills or
services to be furnished by the Company; or
4.1.5. The applicant furnishes a guarantor, satisfactory to the Company, to
secure payment of bills for the service requested.
1
See PUC Rule No. 1
2
The PUC Rules constitute the Tariff Applicable to Electric Service of Hawaiian
Electric Company, Inc, the Tariff Applicable to Electric Service of Maui
Electric, Limited, and the Tariff Applicable to Electric Service of Hawai`i
Electric Light Company, Inc. Each PUC Rule referenced in this policy is
identical across all service areas.
3
See PUC Rule No. 5
Page 2 of 5
Credit and Collection Policy - Commodity
INTERNAL USE ONLY
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4.2.
Deposits.
The Company may require from any customer or prospective customer a cash
deposit intended to satisfy the requirement to establish or re-establish
credit.
4
4.3.
Re-Establishment of Credit.
A customer shall be required to re-establish credit under the following
scenarios.
4.3.1. An applicant who previously has been a customer of the Company and
whose service has been discontinued for non-payment of bills, should be
required before service is rendered to pay all amounts owing to the Company
and to
re-establish credit.
4.3.2. A customer who fails to pay bills before it becomes past due and who
further fails to pay such bill within five days after the date of presentation
of a disconnection notice for non-payment of bill, may be required to pay such
bill and re-establish credit with the payment of a cash deposit.
4.3.3. A customer using other than residential service may be required to
re- establish credit with a cash deposit or satisfactory guarantor in case the
conditions of service or basis on which credit was originally established have
materially changed.
5. Collections Policy
5.1.
Disconnection of Service for Non-Payment
5
5.1.1. The Company may refuse or disconnect service for bill non-payment
provided that the Company has made a reasonable attempt to effect collection
and has given the customer written notice that they have at least 5 days,
excluding Sundays and holidays, in which to make settlement on their account
or have their service denied.
5.2.
Reconnection of Service
6
5.2.1. A customer whose service has been disconnected for bill non-payment
should be required to pay all amounts owing to the Company and reestablish
credit with a cash deposit before reconnection of service.
5.3. Payments and Payment Plans
5.3.1. The Dunning order to disconnect service due to bill non-payment
shall be cancelled if adequate payment is received prior to disconnection.
5.3.2. Dunning is on hold and any order to disconnect service due to
non-payment of bill shall be cancelled while a payment plan for the past due
amount is established and in good standing.
4
See PUC Rule No. 6
5
See PUC Rule No. 7
6
See PUC Rule No. 5.B.1.
Page 3 of 5
Credit and Collection Policy - Commodity
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6. Procedures
Refer to SOX Narrative for Uncollectible Accounts - Overdue Accounts and
Credit and Collection Guidelines.
7. Record Retention
Documents should be retained by the originating department and should follow
the record retention of the division that is responsible for the customer
transaction.
8. Policy Review
This policy will be updated as needed or reviewed once every two years.
9. Discipline
Violations of this policy may result in disciplinary action in accordance with
the Company's Discipline Policy.
10. Training
Not Applicable
11. Reporting Policy Violations
All employees of the Company must immediately report known, suspected, or
potential violations of this policy in accordance with the Corporate Code of
Conduct,
Reporting Concerns and Seeking Guidance
.
12. Related Corporate Policies, Procedures, Guidelines and References
Corporate Code of Conduct
PUC Rules, Hawaii Administrative Rules, G.O.7
13. Tracking Information
Effective Date: 04/30/2024
Last Amended Date: N/A
Last Review Date: 04/25/2024
Review Before: 04/30/2026
Policy Owner: Judy Hirashima, Director, Revenue Management
Corporate Compliance Reviewer: Mami Bueno, Corporate Compliance
Analyst/Investigator
Page 4 of 5
Credit and Collection Policy - Commodity
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Legal Reviewer: Noa Dettweiler-Pavia, Senior Associate
General Counsel
Policy Approver: Brendan Bailey, Vice President, Customer
Service
Page 5 of 5
Credit and Collection Policy - Commodity
INTERNAL USE ONLY
-------------------------------------------------------------------------------
Exhibit A
FORM OF PURCHASE REPORT
Originator: [HAWAIIAN ELECTRIC COMPANY, INC.] [MAUI ELECTRIC COMPANY,
LIMITED] [HAWAII ELECTRIC LIGHT COMPANY, INC.]
Buyer: [HE AR INTER LLC]
Payment Date:
, 20
1. Outstanding Balance of Receivables Purchased:
2. Fair Market Value Discount:
1/{1 + ([
] x (Days' Sales Outstanding/[360]))} Where:
Days' Sales Outstanding =
3. Purchase Price [(1 x 2) minus 3] = $
Exhibit A-1
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
-------------------------------------------------------------------------------
Exhibit B
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT, dated as of
, 20
(this "
Agreement
") is executed by
, a
(the "
Additional Originator
"), with its principal place of business located at
.
BACKGROUND:
A. HE AR INTER LLC, a Delaware limited liability company (the "
Buyer
") and the various entities from time to time party thereto, as Originators
(collectively, the "
Originators
"), have entered into that certain Purchase and Contribution Agreement, dated
as of May 17, 2024 (as amended, restated, supplemented or otherwise modified
through the date hereof, and as it may be further amended, restated,
supplemented or otherwise modified from time to time, the "
Purchase and Contribution Agreement
").
B. The Additional Originator desires to become an Originator pursuant to
Section 4.3
of the Purchase and Contribution Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Additional Originator hereby agrees as follows:
SECTION 1.
Definitions
. Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meanings assigned thereto in the Purchase and Contribution
Agreement or in the ABL Credit Agreement (as defined in the Purchase and
Contribution Agreement).
SECTION 2.
Loan Documents
. The Additional Originator hereby agrees that it shall be bound by all of the
terms, conditions and provisions of, and shall be deemed to be a party to (as
if it were an original signatory to), the Purchase and Contribution Agreement
and each of the other relevant Loan Documents to which all the other
Originators are a parties. From and after the later of the date hereof and the
date that the Additional Originator has complied with all of the requirements
of
Section 4.3
of the Purchase and Contribution Agreement, the Additional Originator shall be
an Originator for all purposes of the Purchase and Contribution Agreement and
all other Loan Documents. The Additional Originator hereby acknowledges that
it has received copies of the Purchase and Contribution Agreement and the
other Loan Documents.
SECTION 3.
Representations and Warranties
. The Additional Originator hereby makes all of the representations and
warranties set forth in Article V (to the extent applicable) of the Purchase
and Contribution Agreement as of the date hereof (unless such representations
or warranties relate to an earlier date, in which case as of such earlier
date), as if such representations and warranties were fully set forth herein.
The Additional Originator hereby represents and warrants that its "location"
(as defined in the applicable UCC) is [
], and the offices where the Additional Originator keeps all of its books and
records concerning the Subject Receivables and Related Security is as follows:
_____________________________
_____________________________
_____________________________
Exhibit B-1
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
-------------------------------------------------------------------------------
SECTION 4.
Miscellaneous
. This Agreement, including the rights and duties of the parties hereto, shall
be governed by, and construed in accordance with, the laws of the State of New
York (including Sections 5-1401 and 5-1402 of the General Obligations Law of
the State of New York, but without regard to any other conflicts of law
provisions thereof). This Agreement is executed by the Additional Originator
for the benefit of the Buyer, the other Originators, and their assigns, and
each of the foregoing parties may rely hereon. This Agreement shall be binding
upon, and shall inure to the benefit of, the Additional Originator and its
successors and permitted assigns.
[Signature Pages Follow]
Exhibit B-2
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed
by its duly authorized officer as of the date and year first above written.
[NAME OF ADDITIONAL ORIGINATOR]
By:
Name
Title
Consented to:
HE AR INTER LLC
By:
Name:
Title:
Consented to:
BARCLAYS BANK PLC,
as Administrative Agent
By:
Name:
Title:
Acknowledged by:
[ORIGINATORS]
By:
Name:
Title:
HAWAIIAN ELECTRIC COMPANY, INC.
By:
Name:
Title:
Exhibit B-3
Intermediate Purchase and Contribution Agreement
US-DOCS\148030570.24
Execution Version
Hawaiian Electric Exhibit 10.3
BORROWER PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of May 17, 2024 among
HE AR INTER LLC,
as Seller,
HAWAIIAN ELECTRIC COMPANY, INC.,
as Servicer,
and
HE AR BRWR LLC,
as Buyer
US-DOCS\149440763.13
-------------------------------------------------------------------------------
CONTENTS
Clause Subject Matter Page
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1 Agreement To Purchase and Sell 2
SECTION 1.2 Timing of Purchases 3
SECTION 1.3 Consideration for Purchases 3
SECTION 1.4 Borrower Purchase Termination Date 3
SECTION 1.5 Intention of the Parties 3
ARTICLE II
[RESERVED]
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1 Initial Purchase Price Payment 4
SECTION 3.2 Subsequent Purchase Price Payments 4
SECTION 3.3 [Reserved] 4
SECTION 3.4 Settlement as to Specific Receivables; Reconveyance of Specific Receivables 4
ARTICLE IV
CONDITIONS OF PURCHASES
SECTION 4.1 Conditions Precedent to Initial Purchase 5
SECTION 4.2 Certification as to Representations and Warranties 6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 5.1 Representations and Warranties 7
ARTICLE VI
COVENANTS OF THE SELLER
SECTION 6.1 Covenants 10
SECTION 6.2 Separateness Covenants 13
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF SUBJECT RECEIVABLES
SECTION 7.1 Rights of the Buyer 14
SECTION 7.2 Responsibilities of the Seller 14
SECTION 7.3 Further Action Evidencing Purchases 15
SECTION 7.4 [Reserved] 15
SECTION 7.5 Performance of Obligations 15
ARTICLE VIII
THE SERVICER AND SERVICING IN RESPECT OF SUBJECT RECEIVABLES
SECTION 8.1 Servicing 16
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CONTENTS
Clause Subject Matter Page
ARTICLE IX
TERMINATION EVENTS
SECTION 9.1 Termination Events 17
SECTION 9.2 Remedies 18
ARTICLE X
INDEMNIFICATION
SECTION 10.1 Indemnities by the Seller or Servicer 18
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments, etc. 20
SECTION 11.2 Notices, etc 20
SECTION 11.3 No Waiver; Cumulative Remedies 20
SECTION 11.4 Binding Effect; Assignability 20
SECTION 11.5 Governing Law 21
SECTION 11.6 [Reserved] 21
SECTION 11.7 CONSENT TO JURISDICTION 21
SECTION 11.8 WAIVER OF JURY TRIAL 21
SECTION 11.9 Captions and Cross References; Incorporation by Reference 21
SECTION 11.10 Execution in Counterparts 21
SECTION 11.11 Third-Party Beneficiaries 22
SECTION 11.12 No Proceeding 22
SECTION 11.13 Mutual Negotiations 22
SECTION 11.14 Limited Recourse 23
SECTION 11.15 Limitation of Liability 23
SECTION 11.16 Certain Defined Terms 23
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SCHEDULES
Schedule I List and Location of the Seller
Schedule II Location of Books and Records of the Seller
Schedule III [Reserved]
Schedule IV Notice Addresses
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This SALE AND CONTRIBUTION AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time, this "
Agreement
"), dated as of May 17, 2024 is entered into among HE AR INTER LLC a Delaware
limited liability company (the "
Seller
"), Hawaiian Electric Company, Inc., a Hawaiian corporation ("
HECO
" or the "
Company
"), as the initial Servicer, and HE AR BRWR LLC, a Delaware limited liability
company (the "
Buyer
").
INTRODUCTORY STATEMENT
Unless otherwise indicated herein, capitalized terms used and not otherwise
defined in this Agreement are defined in the ABL Credit Agreement, dated as of
the date hereof, among HE AR BRWR LLC, as borrower, the several banks and
other financial institutions from time to time parties thereto as Lenders,
Barclays Bank PLC, as administrative agent, funding agent and collateral agent
for the benefit of the Secured Parties (together with its successors and
permitted assigns in such capacities, the "
Administrative Agent
") and the other agents party thereto (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "
ABL Credit Agreement
").
Certain capitalized terms used herein are defined in
Section 11.16
.
All references herein to months are to calendar months unless otherwise
expressly indicated. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. All terms used in Article 9 of the
UCC in the State of New York, and not specifically defined herein, are used
herein as defined in such Article 9. Unless the context otherwise requires,
"or" means "and/or," and "including" (and with correlative meaning "include"
and "includes") means including without limiting the generality of any
description preceding such term.
BACKGROUND
1. The Buyer is a bankruptcy remote special purpose limited liability
company that is a wholly-owned direct subsidiary of HE AR INTER LLC, a
bankruptcy remote special purpose limited liability company that, in turn, is
a direct wholly-owned subsidiary of HECO.
2. The Seller has entered into the Purchase and Contribution Agreement with
HECO, Maui Electric Company, Limited and Hawaii Electric Light Company, Inc.
(each an "
Originator
"), dated as of the date hereof (the "
Intermediate Purchase Agreement
"; all references to the Intermediate Purchase Agreement shall be understood
as references to the Intermediate Purchase Agreement as in effect on the date
hereof), pursuant to which it from time to time will acquire certain Subject
Receivables and the parties hereto wish that any such Subject Receivables
(other than the Excluded Amounts (as defined below)) acquired by the Seller
pursuant to the Intermediate Purchase Agreement shall be automatically upon
such acquisition be purchased by the Buyer hereunder;
3. The parties hereto intend each such transaction hereunder to be a true
sale and/or an absolute contribution and conveyance, as applicable, of the
Subject Receivables and the Related Rights in respect of such Subject
Receivables by the Seller to the Buyer, providing the Buyer with the full
benefits of ownership of such Subject Receivables, and the Seller and the
Buyer do not intend the transactions hereunder to be characterized as a loan
from the Buyer to the Seller.
4. The Seller acknowledges that the Buyer intends to grant a security
interest in the Subject Receivables, Related Security and the Related Rights,
including its right, title and interest in this Agreement, to the Subject
Receivables, the Related Security and Related Rights (including this
agreement), to the Administrative Agent for the benefit of the Secured Parties
to secure its obligations under the ABL Credit Agreement.
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5. The Buyer acknowledges that a portion of the payments made by the
various obligors under the Receivables (referred to herein as the "
Account Debtors
") in connection with their payments of the Receivables consist of taxes and
certain other Excluded Amounts (as defined below) that the Originators are
required to collect for third parties (such as GEMS).
6. The Buyer further acknowledges that the Originators may designate a
percentage of the outstanding amount of Receivables at any time as Excluded
Receivables. Such Excluded Receivables shall not constitute Subject
Receivables under the Intermediate Purchase Agreement or hereunder and any
proceeds in respect of such Excluded Receivables shall, to the extent paid to
any account of the Seller (including any Intermediate Account) or the Buyer be
turned over to or at the direction of, the relevant Originator or its designee.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1
Agreement To Purchase and Sell
. On the terms and subject to the conditions set forth in this Agreement, the
Seller hereby agrees to sell to the Buyer, and the Buyer hereby agrees to
purchase from Seller from time to time on or after the Purchase Agreement
Effective Date, but before the Borrower Purchase Termination Date (as defined
in
Section 1.4
), all of the Seller's right, title and interest (but not obligations) in and
to:
(a) each Subject Receivable now or hereafter acquired by the Seller under
the Intermediate Purchase Agreement to but excluding the Borrower Purchase
Termination Date (as defined below);
(b) all Related Security with respect to any of the foregoing Subject
Receivables;
(c) all Related Rights (as defined in the Intermediate Purchase Agreement)
with respect to any of the foregoing Subject Receivables;
(d) to the extent not already covered in clause (c) above,
(i)
all monies due or to become due to the Seller with respect to any of the
foregoing;
(ii)
all books, records and other information of the Seller to the extent related
to any of the foregoing;
(iii)
all Collections and other proceeds (as defined in the UCC) of any of the
foregoing that are or were received by the Seller on or after the Cut-Off Date
(as defined in the Intermediate Purchase Agreement) in respect of the Subject
Receivables or Related Security, (including all Collections described in
Section 1.1(f) of the Intermediate Purchase Agreement) other than Excluded
Amounts;
(iv)
all rights, remedies, powers, privileges, title and interest (but not
obligations) with respect to the Subject Receivables sold or contributed
hereunder; and
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(v) all rights, remedies, powers, privileges, title and interest (but not
obligations) in and to all Controlled Accounts and Collateral Agent Deposit
Accounts into which any Collections or other proceeds with respect to such
Receivables may be deposited, and any related investment property acquired
with any such Collections or other proceeds (as such term is defined in the
applicable UCC).
All purchases hereunder shall be made without recourse, but shall be made
pursuant to, and in reliance upon, the representations, warranties and
covenants of the Seller set forth in this Agreement and each other Loan
Document to which they are a party. No obligation or liability to any Account
Debtor or any other Person on any Receivable is intended to be assumed by the
Buyer hereunder, and any such assumption is expressly disclaimed. The Buyer's
foregoing agreement to purchase Subject Receivables and the proceeds and
rights described in
clauses (c)
and
(d)
(collectively; the "
Related Rights
"), is herein called the "
Borrower Purchase Facility
."
SECTION 1.2
Timing of Purchases
.
(a)
Effective Date Purchases
. Effective on the Purchase Agreement Effective Date, the Seller hereby sells
to the Buyer, and the Buyer hereby purchases, Buyer's entire right, title and
interest in, to and under (i) each Subject Receivable that is purchased by the
Seller on the Purchase Agreement Effective Date and (ii) all Related Rights
and Related Security with respect thereto.
(b)
Subsequent Purchases
. After the Purchase Agreement Effective Date, until the Borrower Purchase
Termination Date, each Subject Receivable and the Related Rights for such
Subject Receivable acquired by the Seller shall be, and shall be deemed to
have been, sold by the Seller to the Buyer (and without further action other
than the payment (including by way of netting) of the Purchase Price to the
Seller or its designee) on the date on which such Subject Receivable is
acquired (or if such day is not a Business Day, the following Business Day)
(the Payment Date on which the sale of a Receivable takes place, the "
Sale Date
" with respect to such Receivable).
SECTION 1.3
Consideration for Purchases
. On the terms and subject to the conditions set forth in this Agreement, the
Buyer agrees to pay the Purchase Price for the Subject Receivables and Related
Rights to the Seller or its designees in accordance with
Article III
. For purposes hereof, "
Purchase Price
" shall mean, with respect to any Subject Receivable, the same price paid by
the Seller to each Originator for such Subject Receivable on such Business Day.
SECTION 1.4
Borrower Purchase Termination Date
. The "
Borrower Purchase Termination Date
" shall be the earlier to occur of (a) the Final Payout Date, and (b)
following any Purchase Termination Date (as defined in the Intermediate
Purchase Agreement), the date on which the Seller has ceased to purchasing
receivables under the Intermediate Purchase Agreement and all the Subject
Receivables owned by the Seller as of such date have been sold to Buyer
hereunder.
SECTION 1.5
Intention of the Parties
.
(a) It is the express intent of the Seller and the Buyer that each
conveyance by the Seller to the Buyer pursuant to this Agreement of the
Subject Receivables, (including without limitation, all Receivables, if any,
constituting general intangibles as defined in the UCC), and all Related
Rights be construed as a valid and perfected sale and absolute assignment
(without recourse except as provided herein) of such Subject Receivables and
Related Rights by the Seller to the Buyer (rather than the grant of a security
interest to secure a debt or other obligation of the Seller) and that the
right, title and interest in and to such Subject Receivables and Related
Rights conveyed to the Buyer be prior to the rights of and enforceable against
all other Persons at any time, including, without limitation, lien creditors,
secured
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lenders, purchasers and any Person claiming through Seller. The parties
acknowledge that an outright sale of Receivables or an interest in Receivables
is a "security interest" within the meaning of UCC 1-201(b)(35) and as such,
the terms and terminology of UCC Article 9 will apply to this Agreement and be
used in, or in connection with, this Agreement without thereby affecting the
nature of the outright sale hereunder and as such it is also the intent of the
parties that this Agreement shall be, and hereby is, a "security agreement"
within the meaning of the UCC. However, if, contrary to the mutual intent of
the parties, any conveyance of Subject Receivables, including without
limitation any Subject Receivables constituting general intangibles as defined
in the UCC, or any Related Rights with respect thereto is not construed to be
both a valid and perfected sale and absolute assignment of such Subject
Receivables or Related Rights, and a conveyance of such Subject Receivables or
Related Rights that is prior to the rights of and enforceable against all
other Persons at any time, including without limitation lien creditors,
secured lenders, purchasers and any Person claiming through the Seller, then,
it is the intent of the Seller and the Buyer that the Seller shall be deemed
to have granted to the Buyer as of the date of this Agreement, and the Seller
hereby grants to the Buyer, a security interest in, to and under all of the
Seller's right, title and interest in and to the Subject Receivables and the
Related Rights now existing and hereafter created by an Originator and
transferred or purported to be transferred under the Intermediate Purchase
Agreement, to secure the Seller's obligations hereunder (including, without
limitation, pursuant to
Section 3.4
and
Section 10.1
hereof).
(b) The Seller acknowledges that the Buyer has granted to the Administrative
Agent under the ABL Credit Agreement, for the benefit of the Lenders
thereunder and the other Secured Parties set forth therein, a security
interest in all or substantially all of Buyer's personal property, including
Buyer's right, title and interest in this Agreement and Buyer hereby confirms
that it recognizes the Administrative Agent's security interest (and right to
exercise such security interest) herein.
ARTICLE II
[RESERVED]
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1
Initial Purchase Price Payment
. On the terms and subject to the conditions set forth in this Agreement, the
Buyer agrees to pay to the Seller or its designee the Purchase Price for the
purchase to be made from Seller on the Purchase Agreement Effective Date in a
combination of, at the election of the Buyer, (a) cash of the Buyer (subject
to netting) or (b) through a contribution to the Buyer by the Seller
representing an increase in the value of the equity interest of the Seller in
the Buyer in a combined amount equal to the amount of the Purchase Price of
Subject Receivables contributed.
SECTION 3.2
Subsequent Purchase Price Payments
. On each Payment Date subsequent to the Purchase Agreement Effective Date, on
the terms and subject to the conditions set forth in this Agreement, the Buyer
shall pay to the Seller or its designee the Purchase Price for the Subject
Receivables and the Related Rights sold by Seller on such Payment Date in a
combination of, at the election of the Buyer, (a) cash of the Buyer (subject
to netting) or (b) through a contribution to the Buyer representing an
increase in the value of the equity interest of the Seller in the Buyer equal
to the amount of the Purchase Price of Subject Receivables contributed.
SECTION 3.3
[Reserved]
.
SECTION 3.4
Settlement as to Specific Receivables; Reconveyance of Specific Receivables
.
(a) [Reserved],
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(b) Upon (i) receipt by the Seller of any notice under Section 3.4 of the
Intermediate Purchase Agreement or (ii) any Seller Responsible Officer or
Servicer Responsible Officer obtaining knowledge of any Subject Receivable
included in the Borrowing Base under the ABL Credit Agreement being deemed an
Reconveyable Receivable or any Subject Receivable included in the Borrowing
Base that is not an Reconveyable Receivable being reduced or canceled as a
result of any Dilution Factor, the Seller (or the Servicer, as applicable)
shall promptly (but in any event not later than 1 Business Day after receiving
notice or obtaining knowledge thereof) give notice to the other parties
hereto. The Buyer shall, within 10 Business Days from the date of such notice,
have the right to instruct the Seller to take all elections described in
Section 3.4 of the Intermediate Purchase Agreement, and the Seller hereby
agrees and acknowledges that it shall take no election thereunder unless
instructed to do so by the Buyer (provided that the foregoing shall not in any
way prevent the Seller from complying with a repurchase election made by an
Originator pursuant to Section 3.4 of the Intermediate Purchase Agreement).
(i)
If the relevant Reconveyable Receivable is to be reconveyed to an Originator
pursuant to Section 3.4(b)(i) of the Intermediate Purchase Agreement (whether
because
(x) the Buyer has instructed the Seller to elect such reconveyance, or (y) any
Originator has made such election), the Buyer hereunder shall reconvey such
Reconveyable Receivable to the Seller upon receipt from Seller of the Purchase
Price for such Reconveyable Receivable in cash, subject to netting, by wire
transfer to a Borrower Account.
(ii)
If the relevant Reconveyable Receivable is to be reconveyed to an Originator
pursuant to Section 3.4(b)(ii) of the Intermediate Purchase Agreement, the
Buyer hereunder shall reconvey such Reconveyable Receivable to the Seller upon
receipt from Seller of the Purchase Price for such Reconveyable Receivable in
cash, subject to netting, by wire transfer to a Borrower Account.
(c) Any reconveyance hereunder shall be without recourse and without
representation or warranty except that such Subject Receivable is free and
clear of all liens, security interests, charges and encumbrances created by
the Buyer. Once so reconveyed by the Buyer to the Seller (or its designee),
the Seller shall not thereafter sell such Receivable to the Buyer. The
Servicer shall be jointly and severally liable with the Seller as to its
obligations to the Buyer with respect to Dilution Amounts and the payment of
the Purchase Price of Reconveyable Receivables, as provided in this
Section 3.4
.
(d) Although the Purchase Price for each Subject Receivable purchased after
the date hereof shall be due and payable by the Buyer to the Seller on the
applicable Payment Date, a reconciliation of the Purchase Prices between Buyer
and Seller may be effected on any date of determination thereafter as part of
reconciling the records as it relates to the outstanding balance of any such
Subject Receivable whether as a result of a Dilution Factor or otherwise.
ARTICLE IV
CONDITIONS OF PURCHASES
SECTION 4.1
Conditions Precedent to Initial Purchase
. The initial purchase hereunder is subject to the condition precedent that
the Buyer and the Administrative Agent (as Buyer's assignee for the benefit of
the Secured Parties under the ABL Credit Agreement) shall have received the
following, each (unless otherwise indicated) dated the Purchase Agreement
Effective Date, and each in form and substance satisfactory to the Buyer and
the Administrative Agent (the date on which all such items have been received,
the "
Purchase Agreement Effective Date
"):
(a) a copy of the resolutions or unanimous written consent of the board of
directors or other governing body of the Seller approving this Agreement and
the other Loan Documents to be executed
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and delivered by it and the transactions contemplated hereby and thereby,
certified by the Secretary or Assistant Secretary or other appropriate Seller
Responsible Officer;
(b) good standing certificates for the Seller issued as of a recent date
reasonably acceptable to the Buyer and the Administrative Agent by the
Secretary of State (or similar official) of the jurisdiction of the Seller's
organization or formation;
(c) a certificate of a Seller Responsible Officer certifying the names and
true signatures of the officers authorized on the Seller's behalf to sign this
Agreement and the other Loan Documents to be executed and delivered by it (on
which certificate the Servicer, the Buyer, the Administrative Agent and each
Lender may conclusively rely until such time as the Servicer, the Buyer and
the Administrative Agent shall receive from such Person a revised certificate
meeting the requirements of this
clause (c)
);
(d) the certificate of formation (including all amendments and
modifications thereto), as applicable, duly certified by the Secretary of
State of the jurisdiction of the Seller's organization as of a recent date,
together with a copy of the limited liability company agreement or other
governing documents of the Seller as currently in effect (including all
amendments and modifications thereto), as applicable, each duly certified by
the Secretary or an Assistant Secretary or other appropriate Seller
Responsible Officer;
(e) proper financing statements (Form UCC-1) that have been duly authorized
and name the Seller as the debtor/seller and the Buyer as the buyer/assignor
secured party (and the Administrative Agent, for the benefit of the Secured
Parties, as total assignee / secured party) of the Subject Receivables sold by
the Seller as may be necessary or, in the Buyer's or the Administrative
Agent's reasonable opinion, desirable under the UCC of all appropriate
jurisdictions to perfect the Buyer's ownership or security interest in such
Subject Receivables and the Related Rights in which an ownership or security
interest has been assigned to it hereunder;
(f) a written search report from a Person reasonably satisfactory to the
Buyer and the Administrative Agent listing all effective financing statements
that name the Seller as debtors or sellers and that are filed in all
jurisdictions in which filings may be made against the Seller pursuant to the
applicable UCC, together with copies of such financing statements (none of
which, except for those released or terminated, as the case may be, prior to
the date hereof), shall cover any Subject Receivable or any Related Rights
which are to be sold to the Buyer hereunder, and tax and judgment lien search
reports (including, without limitation, liens of the PBGC) from a Person
reasonably satisfactory to the Buyer and the Administrative Agent showing no
evidence of such liens filed against the Seller;
(g) [reserved];
(h) evidence (i) of the execution and delivery by each of the parties
thereto of each of the Loan Documents to be executed and delivered by it in
connection herewith and (ii) that each of the conditions precedent to the
execution, delivery and effectiveness of such Loan Documents has been
satisfied to the Buyer's and the Administrative Agent's satisfaction; and
(i) evidence that the conditions precedent in Section 4.1(i) and (j) of the
Intermediate Purchase Agreement shall have been satisfied.
SECTION 4.2
Certification as to Representations and Warranties
. On each day that a new Subject Receivable is sold or purportedly sold to the
Buyer hereunder, the Seller shall be deemed to have certified that (i) all
representations and warranties set forth in
Section 5.1
are true and correct in all material respects (unless such representation or
warranty contains a materiality qualification and, in such case, such
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representation or warranty shall be true and correct as made) on and as of
such day (except for representations and warranties which apply as to an
earlier date (in which case such representations and warranties shall be true
and correct as of such earlier date)) and (ii) no Purchase and Contribution
Termination Event, Unmatured Purchase and Contribution Termination Event,
Default or Event of Default has occurred and is continuing under the ABL
Credit Agreement, or would result from the sale of such Receivables.
Notwithstanding the foregoing, nothing in this
Section 4.2
shall require the Seller to make as of a date later than the applicable Sale
Date any representation or warranty with respect to a Subject Receivable that
it has transferred to the Buyer, but the Seller shall promptly notify the
Buyer and the Administrative Agent if a Seller Responsible Officer has
knowledge that a representation and warranty that it made under this Agreement
was not correct when made.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 5.1
Representations and Warranties
. In order to induce the Buyer to enter into this Agreement and to make
purchases hereunder, the Seller hereby represents and warrants to Buyer and to
the Administrative Agent (as Buyer's assignee for the benefit of the Secured
Parties under the ABL Credit Agreement) with respect to itself that each
representation and warranty set forth in this Section is true and correct with
respect to it and the Subject Receivables sold by it hereunder on the day such
Subject Receivables are sold by it hereunder:
(a)
Organization and Good Standing
. The Seller is duly and validly organized and existing in good standing under
the laws of its jurisdiction of organization, formation or charter (it being
understood that the Seller as of the date hereof organized under the laws of
Delaware).
(b)
Due Qualification.
The Seller is duly licensed or qualified to transact business in each other
jurisdiction where failure to so qualify have a Seller Material Adverse Effect.
(c)
Power and Authority; Due Authorization
. The Seller (i) has all necessary power and authority to (A) execute and
deliver this Agreement and the other Loan Documents to which it is a party,
(B) perform its obligations under this Agreement and the other Loan Documents
to which it is a party and the execution, delivery and performance of, and the
consummation of the transactions provided for in, this Agreement and the other
Loan Documents to which it is a party have been duly authorized by Seller by
all necessary action and (C) grant a security interest in the Subject
Receivables and the Related Rights to the Buyer on the terms and subject to
the conditions herein provided and (ii) has duly authorized by all necessary
action such grant and the execution, delivery and performance of, and the
consummation of the transactions provided for in, this Agreement and the other
Loan Documents to which it is a party.
(d)
Binding Obligations.
This Agreement and each of the other Loan Documents to which it is a party
constitutes legal, valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their respective terms, except (i) as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) as such enforceability may be limited by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e)
No Conflict or Violation
. The execution and delivery of this Agreement and each other Loan Document to
which Seller is a party, the performance of the transactions contemplated by
this Agreement and the other Loan Documents to which it is a party and the
fulfillment of the terms of this Agreement and the other Loan Documents to
which it is a party by it will not (i) conflict with, result in any breach of
any of the terms or provisions of, or constitute (with or without notice or
lapse of time or both) a
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default under (x) its organizational documents or (y) any indenture, sale
agreement, credit agreement, loan agreement, security agreement, mortgage,
deed of trust or other material agreement or material instrument to which it
is a party or by which it or any of its property is bound, (ii) result in the
creation or imposition of any Adverse Claim upon any of its properties
pursuant to the terms of any such indenture, credit agreement, loan agreement,
security agreement, mortgage, deed of trust or other material agreement or
material instrument, other than this Agreement and the other Loan Documents or
(iii) conflict with or violate any Applicable Law, except in the case of
subclauses (i)(y), (ii) and (iii), to the extent that any such conflict,
breach, default, Adverse Claim or violation would not reasonably be expected
to have a Material Adverse Effect or a Seller Material Adverse Effect.
(f)
Litigation and Other Proceedings.
There is no action, suit, proceeding or investigation pending, or to its
knowledge threatened, against the Seller before any Governmental Authority:
(i) asserting the invalidity of this Agreement or any of the other Loan
Documents to which it is a party, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any other Loan
Document to which it is a party or (iii) seeking any determination or ruling
that could materially and adversely affect the performance by it of its
obligations under, or the validity or enforceability of, this Agreement or any
of the other Loan Documents to which it is a party.
(g)
No Consents.
The Seller is not required to obtain the consent of any other party or any
consent, license, approval, registration, authorization or declaration of or
with any Governmental Authority in connection with the execution, delivery, or
performance of this Agreement or any other Loan Document to which it is a
party, except for the PUC Final Order, the consents, licenses, approvals,
registrations, authorizations or declarations that have already been obtained
or those consents, licenses, approvals, registrations, authorizations or
declarations the failure of which to obtain could not reasonably be expected
to have a Material Adverse Effect or a Seller Material Adverse Effect.
(h) [Reserved]
(i) [Reserved]
(j)
Names and Location
. The Seller has not used any corporate names, trade names or assumed names
since the date of its formation other than its name set forth on the signature
pages hereto. The Seller is "located" (as such term is defined in the
applicable UCC) in the jurisdiction specified in
Schedule I
and since the date of its formation has not been "located" (as such term is
defined in the applicable UCC) in any other jurisdiction (except as specified
in
Schedule I
). The office(s) where the Seller (or the Servicer on behalf of the Seller)
keeps its records concerning the Subject Receivables is at the address(es) set
forth on
Schedule II
.
(k)
[Reserved]
(l)
Eligible Non-Residential Accounts and Eligible Residential Accounts
. Other than any Subject Receivable not included in the Borrowing Base, each
Subject Receivable sold, transferred or assigned hereunder by the Seller to
the Buyer is an Eligible Non-Residential Account or an Eligible Residential
Account (each as defined in the ABL Credit Agreement) on the applicable Sale
Date. No Subject Receivable, whether or not included in the Borrowing Base, is
an account with respect to which the Account Debtor is subject to any
Sanctions, including a person named on the list of "Specially Designated
Nationals and Blocked Persons" maintained by OFAC or which is a designated
person named on any similar applicable list.
(m)
[Reserved]
.
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(n)
Margin Stock; Investment Company Act
. The Seller is not engaged, principally or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meanings of Regulations T, U and X of the
Board of Governors of the Federal Reserve System), and no Purchase Price
payments or proceeds under this Agreement will be used by it to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock. The Seller is not and is not required
to be registered as an "investment company" under the Investment Company Act
of 1940.
(o)
Other Loan Documents
. Each representation and warranty made by the Seller under each other Loan
Document to which it is a party is true and correct in all material respects
as of the date when made or deemed made.
(p)
[Reserved]
(q)
[Reserved]
(r)
[Reserved]
(s)
Taxes
. Except as would not, either individually or in the aggregate, reasonably be
expected to result in a Seller Material Adverse Effect, the Seller has timely
filed (or validly extended) or caused to be filed (or validly extended) all
material Tax returns and reports required by Applicable Law to have been filed
by it and has paid or caused to be paid all Taxes required to be paid by it,
except any Taxes that are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP have been
established. The Seller is (x) a wholly-owned direct subsidiary of a US Person
that is a corporation for US federal income tax purposes and (y) a
"disregarded entity" within the meaning of US Treasury Regulation (s)
301.7701-3 for US federal income tax purposes.
(t)
Opinions
. The facts regarding the Seller, the Subject Receivables sold by it
hereunder, the Related Security and the related matters set forth or assumed
in each of the opinions of counsel delivered in connection with this Agreement
and the Loan Documents are true and correct in all material respects.
(u)
No Fraudulent Conveyance
. No sale hereunder constitutes a fraudulent transfer or conveyance under any
United States federal or applicable state bankruptcy or insolvency laws or is
otherwise void or voidable under such or similar laws or principles or for any
other reason.
(v)
[Reserved]
(w)
[Reserved]
(x)
Perfection; Good Title
. Immediately preceding its sale of each Subject Receivable hereunder, the
Seller was the owner of such Subject Receivable sold or purported to be sold
free and clear of any Adverse Claims, and each such sale hereunder constitutes
a valid sale, transfer and assignment of all of the Seller's right, title and
interest in, to and under the Subject Receivables and Related Rights sold or
transferred or purported to be sold or transferred by it, free and clear of
any Adverse Claims enforceable against creditors of and purchasers from the
Seller. At the time such Subject Receivable is sold or purported to be sold
hereunder by Seller, all appropriate financing statements, financing statement
amendments and continuation statements have been filed in the proper filing
office in the appropriate jurisdictions under Applicable Law in order to
perfect (and continue the perfection of) the sale of the Receivables and
Related Rights from the Seller to the Buyer pursuant to this Agreement. This
Agreement creates a valid and continuing security interest (as defined in New
York UCC Section 1-201(b)(35)) in the Seller's right, title
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and interest in, to and under the Subject Receivables and Related Rights. Upon
sale or transfer to the Buyer of each new Subject Receivable sold or otherwise
conveyed or purported to be sold or conveyed hereunder, and on the Purchase
Agreement Effective Date for then existing Subject Receivables, the Buyer
shall have a valid and perfected first priority ownership or security interest
in each Subject Receivable sold to it hereunder, free and clear of any Adverse
Claim. The Receivables constitute "accounts" or "general intangibles" within
the meaning of Section 9-102 of the UCC. Other than the ownership or security
interest granted to the Buyer pursuant to this Agreement, the Seller has not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Subject Receivables or Related Rights except as permitted by this
Agreement and the other Loan Documents. The Seller has not authorized the
filing of and is not aware of any financing statements filed against the
Seller that include a description of collateral covering the Subject
Receivables and Related Rights other than any financing statement (i) in favor
of Buyer (where the Administrative Agent for the benefit of the Secured
Parties under the ABL Credit Agreement as assignees of Buyer's rights
hereunder may be listed as assignee/additional secured party or total
assignee/additional secured party as the case may be) or (ii) that has been
terminated or will be amended on or prior to the Purchase Agreement Effective
Date to exclude the Subject Receivables and the Related Rights. The Seller is
not aware of any judgment lien, ERISA lien or tax lien filings against the
Seller.
(y)
Reliance on Separate Legal Identity
. The Seller acknowledges that each of the Lenders and the Administrative
Agent are entering into the Loan Documents to which they are parties in
reliance upon the Buyer's identity as a legal entity separate from the Seller.
(z)
[Reserved]
(aa)
[Reserved]
(bb)
[Reserved]
(cc)
Solvent
. As of the Purchase Agreement Effective Date, after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents, the
Seller is Solvent.
(dd)
[Reserved]
ARTICLE VI
COVENANTS OF THE SELLER
SECTION 6.1
Covenants
. From the date hereof until the Final Payout Date, the Seller will, unless
the Buyer and the Administrative Agent (as the Buyer's assignee, for the
benefit of the Secured Parties under the ABL Credit Agreement) shall otherwise
consent in writing, comply with the following covenants:
(a)
Financial Reporting
. The Seller shall furnish to the Buyer and, the Administrative Agent any
information with respect to it or its assets necessary to allow the Buyer to
comply with its obligations regarding field examinations pursuant to Section
5.6 of the ABL Credit Agreement.
(b)
Notice of Events of Default, Default, Purchase and Contribution Termination
Events, Unmatured Purchase and Contribution Termination Events and Seller
Material Adverse Effect
. Promptly after a Seller Responsible Officer has obtained knowledge thereof,
notify the Administrative Agent in writing of (i) the occurrence of any Event
of Default under the ABL Credit Agreement or Purchase and Contribution
Termination Event, which notice shall describe such Event of Default under the
ABL Credit Agreement or Purchase and Contribution Termination Event (except to
the extent the Administrative Agent shall have previously furnished to the
Buyer, the Seller or an Originator written notice of such Event
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of Default under the ABL Credit Agreement or Purchase and Sale Termination
Event, respectively), and if applicable, the steps being taken by the Seller
with respect thereto (which notice shall be deemed given if such notice is
provided pursuant to Section 5.7(a) of the ABL Credit Agreement or Section
6.1(b) of the Intermediate Purchase Agreement) and (ii) any change in the
business, operations, property or financial or other condition of the Seller
which would reasonably be expected to have a Seller Material Adverse Effect.
(c)
Existence; Conduct of Business
. The Seller will do or cause to be done, all things necessary to preserve,
renew and keep in full force and effect its legal existence and take all
reasonable action to maintain the rights, licenses, permits, privileges
(including its good standing where applicable in the relevant jurisdictions)
and franchises material to the conduct of its business.
(d)
Compliance with Laws; Compliance with the Intermediate Purchase Agreement
. The Seller will comply in all material respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except if the failure to comply would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or a Seller Material Adverse Effect. The Seller will comply in all respects
with the obligations and covenants set forth in the Intermediate Purchase
Agreement.
(e)
Indebtedness
. The Seller has not incurred and will not incur any material Indebtedness (as
defined in the ABL Credit Agreement).
(f)
Payments on Receivables
. The Seller shall not instruct or permit any payments other than payments in
respect of Pool Receivables and Related Assets to be made to any Intermediate
Account or Buyer Controlled Account (except, with respect to any Buyer
Controlled Account, amounts payable to Buyer (including for purposes of
on-payment to the Administrative Agent, the Lenders or as otherwise permitted
under the Loan Documents). If any such funds are nevertheless deposited into
any Intermediate Account or Borrower Controlled Account, the Buyer will permit
the Seller to transfer such funds as contemplated in Section 6.1(f) of the
Intermediate Purchase Agreement (prior notice to the Administrative Agent,
detailing the relevant transfers made). The Seller will not, and will not
instruct any other Person, to commingle collections on Receivables with any
other funds. The Seller shall not add to, replace or terminate any of the
Intermediate Accounts (or any related lock-box or post office box) or make any
change in its (or their) instructions to the Account Debtors in respect of
Sold Accounts regarding payments to be made to the Intermediate Accounts (or
any related lock-box or post office box) other than instructing Account
Debtors to make payments to a different Intermediate Account (or related
lock-box or post office box), unless the Administrative Agent shall have
received (x) prior written notice of such addition, replacement, termination
or change (such consent not to be unreasonably withheld, delayed or
conditioned) and (y) a signed and acknowledged Cash Management Control
Agreement (or amendment thereto) with respect to any such new Intermediate
Accounts (or any related lock-box or post office box) confirming that the
requirements of Section 2.21 of the ABL Credit Agreement have been met.
(g)
Sales, Liens, etc.
Except as otherwise provided herein, the Seller will not sell, assign (by
operation of law or otherwise) or otherwise dispose of any Subject Receivable
or Related Rights, or assign any right to receive income in respect thereof,
or create or suffer to exist any Adverse Claim arising through or under it
upon, or with respect to, any Subject Receivable or Related Rights (including,
without limitation, by filing of any financing statement).
(h)
[Reserved]
.
(i)
[Reserved]
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(j)
Change in Business, Etc
. the Seller will not make any change in the character of its business that
could reasonably be expected to impair the collectability of any Subject
Receivable without the prior written consent of the Buyer and the
Administrative Agent (as the Buyer's assignee), acting if applicable at the
direction of the Required Lenders.
(k)
Ownership Interest, Etc
. the Seller shall cause the Servicer, at its expense, to take all action
necessary or reasonably desirable to establish and maintain a valid and
enforceable ownership or first priority perfected security interest in the
Pool Receivables, the Related Rights and Collections with respect thereto,
free and clear of any Adverse Claim, in favor of the Buyer (and the
Administrative Agent as the Buyer's assignee for the benefit of the Secured
Parties under the ABL Credit Agreement), including taking such action to
perfect, protect or more fully evidence the ownership or security interest of
the Buyer (and the Administrative Agent as the Buyer's assignee for the
benefit of the Secured Parties under the ABL Credit Agreement) as the Buyer or
the Administrative Agent may reasonably request. In order to evidence such
security interests, the Seller shall cause its Servicer, from time to time to
take such action, or execute and deliver such instruments as may be necessary
(including, without limitation, such actions as are reasonably requested by
the Buyer or by the Administrative Agent) to maintain and perfect, as a first-
priority interest, the Buyer's and the Administrative Agent's security
interest in the Subject Receivables, Contracts, Related Security and Related
Rights. The Seller shall, from time to time and within the time limits
established by law, cause its Servicer to prepare and present to the Buyer and
the Administrative Agent for each such person's authorization and approval,
all financing statements, amendments, continuations or initial financing
statements in lieu of a continuation statement, or other filings necessary to
continue, maintain and perfect the Buyer's and the Administrative Agent's
security interest as a first- priority interest. Notwithstanding anything else
in the Loan Documents to the contrary, the Seller shall not have any authority
to file a termination, partial termination, release, partial release, or any
amendment that deletes the name of a debtor or excludes collateral of any such
financing statements filed in connection with the Loan Documents, without the
prior written consent of the Administrative Agent.
(l)
Further Assurances.
The Seller hereby authorizes and hereby agrees from time to time, at its own
expense (or at the expense of the Servicer to the extent covered by the
servicing fee), promptly to execute (if applicable) and deliver all further
instruments and documents, and to take all further actions, that may be
necessary or desirable, or that the Buyer or the Administrative Agent may
reasonably request, to perfect, protect or more fully evidence the purchases
made hereunder and/or security interest granted to Buyer herein or in the
Subject Receivables or any Related Rights and/or security interest granted
herein or therein pursuant to this Agreement, the ABL Credit Agreement or the
other Loan Documents, or to enable the Buyer or the Administrative Agent to
exercise and enforce their respective rights and remedies hereunder or under
the ABL Credit Agreement or the other Loan Documents. Without limiting the
foregoing, the Seller hereby authorizes the Buyer and the Administrative Agent
to, and will, upon the request of the Buyer or the Administrative Agent, at
Seller's own expense, execute (if applicable) and file such financing
statements or continuation statements, or amendments thereto, and such other
instruments and documents, that may be necessary or desirable, or that the
Buyer or Administrative Agent may reasonably request, to perfect, protect or
evidence any of the foregoing.
(m)
Mergers, Acquisitions, Sales, etc
. The Seller shall not be a party to any merger, consolidation or other
organizational restructuring unless (A) the Buyer, the Administrative Agent
and each Lender has consented to any such merger, consolidation or
restructuring, (B) the merger, consolidation or restructuring is permitted by
Section 7.02 of the Company Credit Agreement, (C) any actions reasonably
requested by the Buyer or the Administrative Agent to protect the first
priority security interest of the Buyer and Administrative Agent in and to the
Subject Receivables to be sold by Seller hereunder and the Related Security
and Related Rights, have been taken by, and at the expense of the Seller (or
Originator or Servicer, as applicable), (D) the surviving entity of any such
merger shall have expressly assumed all of the Seller's obligations hereunder
and under the Intermediate Purchase Agreement and (E) the Buyer and the
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Administrative Agent have received executed copies of all documents,
reaffirmations, certificates and opinions (including, without limitation,
opinions relating to corporate, bankruptcy and UCC matters) as the Buyer or
the Administrative Agent shall reasonably request. The Seller shall not,
directly or indirectly sell, transfer, assign, convey or lease, whether in one
or a series of transactions (A) all or substantially all of its assets (except
in a transaction permitted by Section 7.02 of the Company Credit Agreement as
in effect on the date hereof) or (B) other than pursuant to this Agreement,
any Receivables, Related Security or Related Rights or any interest therein.
(n)
[Reserved]
.
(o)
Receivables Not to Be Evidenced by Promissory Notes or Chattel Paper
. The Seller shall not take any action to cause or permit any Subject
Receivable created, acquired or originated by it to become evidenced by any
"instrument" or "chattel paper" (as defined in the applicable UCC).
(p)
Cash Management
. The Seller hereby agrees that upon the receipt of any cash into the
Intermediate Accounts from Account Debtors whose Subject Receivables have been
sold to the Buyer hereunder, the Seller shall, or shall cause the Servicer to,
transfer all such amounts (for the avoidance of doubt, other than Excluded
Amounts or proceeds from any Excluded Receivables) to a Borrower Account that
is a Controlled Account, promptly and in any event within 2 Business Days
after receipt thereof.
(q)
Fundamental Changes
. The Seller shall not make any change in its legal name or location of
organization or any other change in its identity or corporate structure that
could impair or otherwise render any UCC financing statement filed in
connection with this Agreement, the Intermediate Receivables Sale Agreement or
the ABL Credit Agreement "seriously misleading" as such term (or similar term)
is used in the applicable UCC, in each case, unless the Buyer and the
Administrative Agent have each received ten (10) ten days' prior notice
thereof (or such shorter period as the Administrative Agent may agree in its
discretion and been reasonably satisfied that all other action to perfect and
protect the interests of the Buyer and the Administrative Agent), on behalf of
the Secured Parties, in and to the Subject Receivables to be sold by it
hereunder and other Related Rights, as reasonably requested by the Buyer or
the Administrative Agent shall have been taken by, and at the expense of, the
Seller (or, if obligated under any relevant contract with the Seller,
Originator or Servicer) (including the delivery of any legal opinions
reasonably requested by the Administrative Agent, the filing of any UCC
financing statements or amendments thereto, the receipt of certificates and
other requested documents from public officials and all such other actions
required pursuant to
Section 7.3
).
SECTION 6.2
Separateness Covenants
. The Seller hereby acknowledges that this Agreement and the other Loan
Documents are being entered into in reliance upon the Buyer's identity as a
legal entity separate from Seller and its Affiliates. Therefore, from and
after the date hereof, the Seller shall take all reasonable steps necessary to
make it apparent to third Persons that the Buyer is an entity with assets and
liabilities distinct from those of the Seller and any other Person, and is not
a division of such Seller, its Affiliates or any other Person. Without
limiting the generality of the foregoing and in addition to and consistent
with the other covenants set forth herein, the Seller shall take such actions
as shall be required in order that:
(a) the Seller shall not be involved in the day to day management of the
Buyer;
(b) the Seller shall maintain separate corporate records and books of
account from the Buyer and otherwise will observe corporate formalities (to
the extent that it and the Buyer have offices in the same location, there
shall be a fair and appropriate allocation of overhead costs between them, and
each shall bear its fair share of such expenses);
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(c) the financial statements and books and records of the Seller shall be
prepared after the date of creation of the Buyer to reflect and shall reflect
the separate existence of the Buyer;
provided
, that the Buyer's assets and liabilities may be included in a consolidated
financial statement issued by an Affiliate of the Buyer;
provided
,
however
, that any such consolidated financial statement or the loans thereto shall
make clear that the Buyer's assets are not available to satisfy the
obligations of such Affiliate;
(d) except in connection with the servicing of the Receivables, (i) the
Seller shall maintain its assets (including, without limitation, deposit
accounts) separately from the assets (including, without limitation, deposit
accounts) of the Buyer and (ii) the Seller's assets, and records relating
thereto, have not been, are not, and shall not be, commingled with those of
the Buyer;
(e) the Seller shall not conduct any of the business of the Buyer in its
own name;
(f) except as required by the Loan Documents, the Seller shall not pay any
liabilities of the Buyer out of its own funds or assets;
(g) except as required by the Loan Documents, the Seller shall not assume
or guarantee or become obligated for the debts of the Buyer or hold out its
credit as being available to satisfy the obligations of the Buyer;
(h) the Seller shall not acquire obligations of the Buyer;
(i) the Seller shall identify and hold itself out as a separate and
distinct entity from the
Buyer;
(j) the Seller shall correct any known misunderstanding respecting its
separate identity from the Buyer;
(k) the Seller shall maintain an arm's-length relationship with the Buyer;
shall not enter into, or be a party to, any transaction with the Buyer, except
in the ordinary course of its business and on terms which are intrinsically
fair and not less favorable to it than would be obtained in a comparable
arm's-length transaction with an unrelated third party; and
(l) the Seller shall not pay the salaries of the Buyer's employees, if any.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF SUBJECT RECEIVABLES
SECTION 7.1
Rights of the Buyer
. The Seller hereby authorizes the Buyer, the Servicer or their respective
designees or assignees (including, without limitation, the Administrative
Agent) to take any and all steps in the Seller's name necessary or desirable,
in their respective determination, to collect all amounts due under any and
all Subject Receivables sold or otherwise conveyed or purported to be conveyed
by it hereunder, including, without limitation, endorsing the name of the
Seller on checks and other instruments representing Collections and enforcing
such Subject Receivables and the provisions of the related Contracts that
concern payment and/or enforcement of rights to payment;
provided
,
however
, the Buyer or Administrative Agent shall not take any of the foregoing
actions unless an Event of Default has occurred and is continuing under the
ABL Credit Agreement and any such action may only be taken to the extent
permitted by, and in accordance with, applicable law or regulation.
SECTION 7.2
Responsibilities of the Seller
. Anything herein to the contrary notwithstanding:
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(a) The Seller shall perform its obligations hereunder, and the exercise by
the Buyer or its designee of its rights hereunder shall not relieve the Seller
from such obligations.
(b) None of the Buyer, the Lenders or the Administrative Agent shall have
any obligation or liability to any Account Debtor or any other third Person
with respect to any Subject Receivables, Contracts related thereto or any
other related agreements, nor shall the Buyer, the Lenders or the
Administrative Agent be obligated to perform any of the obligations of the
Seller thereunder.
(c) The Seller hereby grants to the Buyer and the Administrative Agent (as
assignee of the Buyer for the benefit of the Secured Parties under the ABL
Credit Agreement) an irrevocable power-of-attorney, with full power of
substitution, coupled with an interest, during the occurrence and continuation
of an Event of Default under the ABL Credit Agreement to take in the name of
the Seller all steps necessary or advisable to endorse, negotiate or otherwise
realize on any writing or other right of any kind held or transmitted by
Seller or transmitted or received by the Buyer or the Administrative Agent (as
assignee of Buyer for the benefit of the Secured Parties under the ABL Credit
Agreement) (whether or not from Seller) in connection with any Subject
Receivable sold or otherwise conveyed or purported to be conveyed by it
hereunder or Related Right provided that any such action may only be taken to
the extent permitted by, and in accordance with, applicable law or regulation.
SECTION 7.3
Further Action Evidencing Purchases
. The Seller agrees that from time to time, at its expense (or at the expense
of the Originators or Servicer, where Seller's contract with the Originators
or Servicer so provides), it will promptly execute and deliver all further
instruments and documents, and take all further action that the Buyer, the
Servicer or the Administrative Agent may reasonably request in order to
perfect, protect or more fully evidence the Subject Receivables and Related
Rights purchased by the Buyer hereunder, or to enable the Buyer (or the
Administrative Agent as the Buyer's assignee) to exercise or enforce any of
its rights hereunder. Without limiting the generality of the foregoing, upon
the reasonable request of the Buyer or the Administrative Agent, the Seller
will execute (if applicable), authorize and file such financing or
continuation statements, or amendments thereto or assignments thereof, and
such other instruments or notices, as may be necessary or appropriate.
The Seller hereby authorizes the Buyer or its designee or assignee (including,
without limitation, the Administrative Agent) to file one or more financing or
continuation statements, and amendments thereto and assignments thereof,
relative to all or any of the Subject Receivables and Related Rights sold or
otherwise conveyed or purported to be conveyed by it hereunder. If the Seller
fails to perform any of its agreements or obligations under this Agreement,
the Buyer or its designee or assignee (including, without limitation, the
Administrative Agent) may (but shall not be required to) itself perform, or
cause the performance of, such agreement or obligation, and the expenses of
the Buyer or its designee or assignee (including, without limitation, the
Administrative Agent) incurred in connection therewith shall be payable by the
Seller (or, where its contracts so provide, the Originator or Servicer).
SECTION 7.4
[Reserved]
.
SECTION 7.5
Performance of Obligations
. The Seller shall (i) perform all of its obligations, if any, under the
Contracts related to the Subject Receivables to the same extent as if
interests in such Subject Receivables had not been transferred hereunder, but
only to the extent that such obligations are not included in the Subject
Receivables or Related Rights sold or purportedly sold to the Buyer hereunder,
and the exercise by the Buyer or the Administrative Agent of its rights
hereunder shall not relieve the Seller from any such obligations and (ii) pay
when due any Taxes imposed upon it or upon its income or profits or in respect
of its property, except to the extent (a) any such Tax is being contested in
good faith and by appropriate proceedings as to which no Subject Receivable,
Related Security or Related Rights would become subject to forfeiture or loss
as a result of such contest and for which adequate reserves have been
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established in accordance with GAAP or (b) the failure to pay or discharge the
same would not reasonably be expected to have, individually or in the
aggregate, a Seller Material Adverse Effect.
ARTICLE VIII
THE SERVICER AND SERVICING IN RESPECT OF SUBJECT RECEIVABLES
SECTION 8.1
Servicing
.
(a)
Appointment
. The servicing, administration and collection of the Pool Receivables shall
be conducted by a Person (the "
Servicer
") so designated from time to time in accordance with this
Section 8.1
. HECO is hereby designated as, and hereby agrees to perform the duties and
obligations of, the Servicer pursuant to the terms of this Agreement. The
Servicer may delegate any of its duties and responsibility to agents and
outside collection agencies in accordance with its customary practices
including, without limitation to any other Originator, subject to compliance
with Applicable Law.
(b)
Servicing Standard
. The Servicer shall take or cause to be taken all such actions as may be
necessary or advisable to collect and service each Pool Receivable from time
to time, all in accordance with applicable laws, rules and regulations, with
reasonable care and diligence and, in any event with no less care and
diligence than it would exercise in the collection and servicing of its own
receivables.
(c)
Servicing Fees
. In consideration of the Servicer's agreement to act hereunder, the Buyer
agrees to pay over to the Servicer a fee (the "
Servicing Fee
") equal to $90,000 per month, as compensation for its servicing activities.
The Servicer shall also be entitled to receive on each Interest Payment Date
all of the Servicer's reasonable and documented out-of-pocket costs and
expenses in connection with servicing, administering and collecting the Pool
Receivables ("
Servicing Expenses
"). Such compensation and expenses shall be payable on each Interest Payment
Date to the extent funds are available after the payment of any other
Obligations due and payable on such Interest Payment Date.
(d)
Cash Management
. The Servicer shall (i) direct all applicable third parties to pay all
amounts due with respect to the Subject Receivables to the Intermediate
Accounts, (ii) transfer any such amounts received directly by the Servicer to
the Intermediate Account promptly and in any event within 2 Business Days
after receipt thereof, and (iii) transfer all amounts (for the avoidance of
doubt, other than Excluded Amounts or proceeds from any Excluded Receivables)
deposited into the Intermediate Account to a Borrower Account that is a
Controlled Account promptly and in any event within 2 Business Days after
receipt thereof.
(e)
Accuracy of Information.
The Servicer hereby represents with respect to it as Servicer or Originator
and the Subject Receivables sold to the Buyer on the day such Subject
Receivables are sold to the Buyer hereunder: No written report, financial
statement, certificate or other written information furnished by or on behalf
of the Buyer concerning the Buyer or the Company and its Subsidiaries (other
than projected financial information,
pro forma
financial information, budgets, estimates, other forward-looking statements
and information of a general economic or industry nature) to the Administrative
Agent or any other Credit Party, directly or indirectly by or on behalf of any
Originator in connection with the transactions contemplated by the Loan
Documents and the negotiation of the Intermediate Purchase Agreement and this
Agreement (as modified or supplemented by other information so furnished) when
taken as a whole and as supplemented contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein (when taken as a whole) in light of the circumstances under which such
statements are made, not materially misleading; provided, that the foregoing
is hereby qualified to the extent of any projections or other "forward-looking
statements", which include statements that are predictive in nature, depend
upon or refer to future events or conditions, and usually include words such
as "expects," "anticipates," "intends," "plans," "believes," "predicts,"
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"estimates" or similar expressions; and provided, further, that any statements
concerning future financial performance, ongoing business strategies or
prospects or possible future actions are also forward-looking statements; it
being expressly understood and agreed that (i) forward-looking statements are
based on current expectations and projections about future events and are
subject to risks, uncertainties and the accuracy of assumptions concerning the
Borrower and its Subsidiaries or Affiliates, the performance of the industries
in which they do business and economic and market factors, among other things,
and (ii) such forward-looking statements are not guarantees of future
performance. With respect to written projected financial information and
pro forma
financial information, the Servicer represents that such written information
was prepared in good faith based upon assumptions believed to be reasonable at
the time such information was made available to the Buyer, the Administrative
Agent or any other Credit Party, it being understood that such projected
financial information and
pro forma
financial information are not to be viewed as facts or as a guarantee of
performance or achievement of any particular results, are subject to
significant uncertainties and contingencies, many of which are beyond the
control of the Servicer and its subsidiaries, and that actual results may vary
from such forecasts and that such variations may be material and that no
assurance can be given that the projected results will be realized. All
Purchase Reports, certificates, reports, statements, documents and other
information furnished to the Buyer, the Administrative Agent or any other
Credit Party by it pursuant to any provision of this Agreement or any other
Loan Document to which it is a party, or in connection with or pursuant to any
amendment or modification of, or waiver under, the Intermediate Purchase
Agreement, this Agreement or any other Loan Document to which it is a party,
is, at the time the same are so furnished, when taken as a whole, complete and
correct in all material respects on the date the same are furnished to the
Buyer, the Administrative Agent or such other Credit Party.
ARTICLE IX
TERMINATION EVENTS
SECTION 9.1
Termination Events
. Each of the following events or occurrences described in this
Section 9.1
shall constitute a "
Purchase and Contribution Termination Event
" (each event which with notice or the passage of time or both would become a
Purchase and Contribution Termination Event being referred to herein as an "
Unmatured Purchase and Contribution Termination Event
"):
(a) each event or occurrence described in Section 9.1 of the Intermediate
Purchase
Agreement; or
(b) the Seller or the Servicer shall fail to make when due any payment or
deposit to be made by it under this Agreement (including, for the avoidance of
doubt, as and when required by
Section
9.2
hereof) or any other Loan Document to which it it's a party and such failure
shall remain unremedied for two (2) Business Days; or
(c) any representation or warranty made or deemed to be made by the Seller
(or any of its officers) or the Servicer under or in connection with this
Agreement, any other Loan Documents to which it is a party, or any other
information or report delivered by it pursuant hereto or thereto shall prove
to have been incorrect or untrue in any material respect when made or deemed
made or delivered;
provided
that no breach of a representation or warranty set forth in
Section 5.1(l)
shall constitute a Purchase and Contribution Termination Event pursuant to this
clause (c)
if the applicable Originator has complied with
Section 3.4(b)
hereof with respect to such breach;
(d) the Seller or the Servicer shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any other Loan
Document to which it is a party on its part to
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be performed or observed and such failure, solely to the extent capable of
cure, shall continue unremedied for thirty (30) days; or
(e) the Seller or the Servicer shall cease to be Solvent.
SECTION 9.2
Remedies
.
(a)
Optional Termination
. Upon the occurrence and during the continuation of a Purchase and
Contribution Termination Event, the Buyer (and not the Servicer), with the
prior written consent of the Administrative Agent shall have the option, by
notice to the Seller (with a copy to the Administrative Agent and the
Lenders), to declare the Borrower Purchase Facility terminated and/or replace
the Servicer hereunder.
(b)
Remedies Cumulative
. Upon any termination of the Borrower Purchase Facility pursuant to
Section 9.2(a)
, the Buyer (and the Administrative Agent as Buyer's assignee) shall have, in
addition to all other rights and remedies under this Agreement, all other
rights and remedies provided under the UCC of each applicable jurisdiction and
other Applicable Laws, which rights shall be cumulative.
ARTICLE X
INDEMNIFICATION
SECTION 10.1
Indemnities by the Seller or Servicer
. Without limiting any other rights that the Buyer may have hereunder or under
Applicable Law, the Seller or, to the extent the relevant indemnifiable event
is caused by the Servicer's action or inaction, the Servicer hereby agrees to
indemnify the Buyer, the Administrative Agent (as assignee of the Buyer for
the benefit of the Secured Parties under the ABL Credit Agreement), each
Lender and their respective Related Parties (each of the foregoing Persons
being individually called a "
Purchase and Contribution Indemnified Party
") from and against any loss, liability, expense, damage or injury suffered or
sustained by reason of (i) any failure of the Seller to comply with any of its
covenants, obligations or agreements contained in this Agreement or any other
Loan Document to which it is a party or the Seller's gross negligence (ii) the
breach of any representation or warranty made or deemed made by the Seller
under or in connection with this Agreement or any of the other Loan Documents
to which it is a party or (iii)willful misconduct in the performance of its
duties or obligations under this Agreement or any other Loan Document to which
it is a party, including any judgment, award, settlement, attorney costs and
other costs or expenses incurred in connection with the defense of any actual
or threatened action, proceeding or claim resulting from the foregoing (all of
the foregoing being collectively referred to as, "
Purchase and Contribution Indemnified Amounts
"). Without limiting or being limited by the foregoing, the Seller (or, where
the indemnifiable event is caused by the Servicer's action or inaction, the
Servicer, shall pay on demand to each Purchase and Contribution Indemnified
Party any and all documented amounts necessary to indemnify such Purchase and
Contribution Indemnified Party from and against any and all Purchase and
Contribution Indemnified Amounts relating to or resulting from any of the
following:
(a) the breach of any representation or warranty made or deemed made by the
Seller under or in connection with this Agreement or any of the other Loan
Documents to which it is a party, or any information or report delivered by or
on behalf of the Seller pursuant hereto or thereto which shall have been
untrue or incorrect when made or deemed made or delivered;
(b) the transfer by the Seller of any interest in any Subject Receivable or
Related Right sold or purportedly sold to Buyer hereunder other than the
transfer of any Subject Receivable and Related Security to the Buyer pursuant
to this Agreement and the grant of a security interest to the Buyer pursuant
to this Agreement;
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(c) the failure by the Seller to comply with the terms of any Loan Document
to which it is a party or with any Applicable Law with respect to any Subject
Receivable or the related Contract; or the failure of any Subject Receivable
or the related Contract to conform to any such Applicable Law on or prior to
the applicable Sale Date for such Subject Receivable;
(d) the Seller or its Servicer having caused the Buyer not having of an
enforceable ownership interest, or a first priority perfected security
interest, in the Pool Receivables (and all Related Security) sold by the
Seller against all Persons (including any bankruptcy trustee or similar
Person), in either case, free and clear of any Adverse Claim (other than any
Adverse Claim of the Administrative Agent (as an assignee of Buyer));
(e) the failure of the Seller or its Servicer to have filed, or any delay
in filing, financing statements, financing statement amendments, continuation
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other Applicable Laws with respect to the transfer
by the Seller to the Buyer of any Pool Receivable or the Related Rights;
(f) [Reserved];
(g) [Reserved];
(h) [Reserved];
(i) the commingling by the Seller of Collections of Pool Receivables at any
time with
other funds;
(j) [Reserved];
(k) [Reserved];
(l) the failure by the Seller to pay when due any Taxes required to be paid
by the Seller, including, without limitation, sales, excise or personal
property Taxes;
(m) [Reserved]; or
(n) [Reserved].
provided
that, in each case, such indemnity shall not be available to any Purchase and
Contribution Indemnified Party to the extent that such Purchase and
Contribution Indemnified Amounts (x) are determined by a court of competent
jurisdiction in a final and non-appealable judgment to have resulted from such
Purchase and Contribution Indemnified Party's gross negligence or willful
misconduct or (y) include losses in respect of Pool Receivables that are
uncollectible solely on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Account Debtor; and in no event shall Seller
or Servicer be liable on any theory of liability for any special, indirect,
consequential or punitive damages (including, without limitation, any loss of
profits, business or anticipated savings).
If for any reason the indemnification provided above in this
Section 10.1
is unavailable to a Purchase and Contribution Indemnified Party or is
insufficient to hold such Purchase and Contribution Indemnified Party
harmless, then the Seller or the Servicer, as applicable, shall contribute to
the amount paid or payable by such Purchase and Contribution Indemnified Party
to the maximum extent permitted under Applicable Law.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1
Amendments, etc.
(a) The provisions of this Agreement may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and executed by the Buyer and the Seller, with the prior written consent of
the Administrative Agent (as the Buyer's assignee).
(b) No failure or delay on the part of any party hereto or any third-party
beneficiary in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on any party hereto in any case
shall entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by any party hereto under this Agreement shall, except as
may otherwise be stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval under this Agreement shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
(c) The Loan Documents contain a final and complete integration of all
prior expressions by the parties hereto with respect to the subject matter
thereof and shall constitute the entire agreement among the parties hereto
with respect to the subject matter thereof, superseding all prior oral or
written understandings.
SECTION 11.2
Notices, etc
. All notices and other communications provided for hereunder shall, unless
otherwise stated herein, be in writing (including electronic mail
communication) and shall be delivered or sent by electronic mail, or by
overnight mail, to the intended party at the mailing or electronic mail
address of such party set forth under its name on
Schedule IV
hereof or at such other address or electronic mail address as shall be
designated by such party in a written notice to the other parties hereto or in
the case of the Administrative Agent or any Lender, at their respective
address for notices pursuant to the ABL Credit Agreement. All such notices and
communications shall be effective (i) if delivered by overnight mail, when
received, and (ii) if transmitted by facsimile or electronic mail, when sent,
receipt confirmed by telephone or no delivery failure error messages or other
electronic means in case of electronic email.
SECTION 11.3
No Waiver; Cumulative Remedies
. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Without limiting the foregoing, the Seller hereby
authorizes the Buyer, the Administrative Agent and each Lender (each a "
Set-off Party
"), at any time and from time to time, to the fullest extent permitted by law,
to set off, against any obligations of the Seller to such Set-off Party
arising in connection with the Loan Documents to which the Seller is a party
(including, without limitation, amounts payable pursuant to
Section 10.1
) that are then due and payable or that are not then due and payable but have
accrued, any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and any and all indebtedness at any time owing
by, such Set-off Party to or for the credit or the account of the Seller.
SECTION 11.4
Binding Effect; Assignability
. This Agreement shall be binding upon and inure to the benefit of the Buyer
and the Seller and their respective successors and permitted assigns
(including the Administrative Agent, as the Buyer's assignee). The Seller may
not assign any of its rights hereunder or any interest herein without the
prior written consent of the Buyer and the Administrative Agent (as the
Buyer's assignee), except as otherwise herein specifically provided. This
Agreement shall create and constitute the continuing obligations of the
parties hereto in accordance with its terms, and shall remain in full force
and effect until terminated or such earlier time as the parties hereto shall
agree. The rights and
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remedies with respect to any breach of any representation and warranty made by
the Seller pursuant to Article V and the indemnification and payment
provisions of
Article X
shall be continuing and shall survive any termination of this Agreement.
SECTION 11.5
Governing Law
. THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW
PROVISIONS THEREOF (EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF
PERFECTION OR PRIORITY OF THE INTERESTS OF THE BUYER, THE ADMINISTRATIVE AGENT
OR ANY LENDER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK).
SECTION 11.6
[Reserved]
.
SECTION 11.7
CONSENT TO JURISDICTION
. (a) EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY,
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(b) EACH PARTY HERETO CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO IT AT
ITS ADDRESS SPECIFIED IN
SCHEDULE IV
. NOTHING IN THIS SECTION
11.7 SHALL AFFECT THE RIGHT OF THE PARTIES HERETO TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW.
SECTION 11.8
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT.
SECTION 11.9
Captions and Cross References; Incorporation by Reference
. The various captions (including, without limitation, the table of contents)
in this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in
this Agreement to any Article, Section, Schedule or Exhibit, if specified, are
to such Article, Section, Schedule or Exhibit of this Agreement, as the case
may be. The Schedules and Exhibits hereto are hereby incorporated by reference
into and made a part of this Agreement.
SECTION 11.10
Execution in Counterparts
. This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original and all of which when
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taken together shall constitute one and the same agreement. Delivery of an
executed counterpart hereof by facsimile or other electronic means shall be
equally effective as delivery of an originally executed counterpart.
SECTION 11.11
Third-Party Beneficiaries
. By execution below, the Seller expressly acknowledges and agrees that all of
the Buyer's rights, title, and interests in, to, and under this Agreement and
all liens granted hereunder (but not its obligations), shall be assigned by
the Buyer to the Administrative Agent (for the benefit of the Secured Parties
under the ABL Credit Agreement), and the Seller irrevocably consents to such
assignment. Each of the parties hereto acknowledges and agrees that the
Administrative Agent and each of the other Secured Parties are third-party
beneficiaries of the rights of the Buyer arising hereunder and under the other
Loan Documents to which the Seller is a party, and notwithstanding anything to
the contrary contained herein or in any other Loan Document, upon the
occurrence and during the continuation of an Event of Default under the ABL
Credit Agreement, the Administrative Agent (as the total assignee of Buyer's
rights hereunder), and not the Buyer, shall have the sole right to exercise
all such rights and related remedies.
SECTION 11.12
No Proceeding
.
(a) The Seller hereby agrees that it will not institute, or join any other
Person in instituting, against the Buyer any insolvency proceeding. The Seller
further agrees that notwithstanding any provisions contained in this Agreement
to the contrary, the Buyer shall not, and shall not be obligated to, pay any
amount to the Seller pursuant to this Agreement unless the Buyer has received
funds which may, subject to the ABL Credit Agreement, be used to make such
payment. All payments to be made by the Buyer under this Agreement shall be
made exclusively out of Collections or monies received by the Buyer from its
shareholder(s) other than the initial share capital. Any amount which the
Buyer does not pay pursuant to the operation of the preceding two sentences
shall not constitute a claim (as defined in (s)101 of the Bankruptcy Code)
against or corporate obligation of the Buyer by the Seller for any such
insufficiency unless and until the provisions of the foregoing sentence are
satisfied. The agreements in this
Section
11.12(a)
shall survive any termination of this Agreement.
(b) The Buyer hereby
agrees that it will not institute, or join any other Person in instituting,
against the Seller any insolvency proceeding. The Buyer further agrees that
notwithstanding any provisions contained in this Agreement to the contrary,
the Seller shall not, and shall not be obligated to, pay any amount to the
Buyer pursuant to this Agreement unless the Seller has received funds which
may be used to make such payment. All payments to be made by the Seller under
this Agreement shall be made exclusively out of Collections (other than
Excluded Amounts) or monies received by the Seller from its shareholder(s)
other than the initial share capital. Any amount which the Seller does not pay
pursuant to the operation of the preceding two sentences shall not constitute
a claim (as defined in (s)101 of the Bankruptcy Code) against or corporate
obligation of the Seller by the Buyer for any such insufficiency unless and
until the provisions of the foregoing sentence are satisfied. The agreements
in this
Section 11.12(b)
shall survive any termination of this Agreement.
SECTION 11.13
Mutual Negotiations
. This Agreement and the other Loan Documents are the product of mutual
negotiations by the parties thereto and their counsel, and no party shall be
deemed the draftsperson of this Agreement or any other Loan Document or any
provision hereof or thereof or to have provided the same. Accordingly, in the
event of any inconsistency or ambiguity of any provision of this Agreement or
any other Loan Document, such inconsistency or ambiguity shall not be
interpreted against any party because of such party's involvement in the
drafting thereof.
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SECTION 11.14
Limited Recourse
.
(a) Except as explicitly set forth herein, the obligations of the Buyer
under this Agreement or any other Loan Documents to which it is a party are
solely the obligations of the Buyer. No recourse under any Loan Document shall
be had against, and no liability shall attach to, any officer, employee,
director, or beneficiary, whether directly or indirectly, of the Buyer. The
agreements in this
Section 11.14(a)
shall survive any termination of this Agreement.
(b) Except as explicitly set forth herein, the obligations of the Seller
under this Agreement or any other Loan Documents to which it is a party are
solely the obligations of the Seller. No recourse under any Loan Document
shall be had against, and no liability shall attach to, any officer, employee,
director, or beneficiary, whether directly or indirectly, of the Seller. The
agreements in this
Section 11.14(b)
shall survive any termination of this Agreement.
SECTION 11.15
Limitation of Liability
. No claim may be made by the Seller against Buyer, any Credit Party or their
respective Affiliates, members, directors, officers, employees, incorporators,
attorneys or agents for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement or any other Loan Document, or any act, omission or event occurring
in connection herewith or therewith; and the Seller hereby waives, releases,
and agrees not to sue upon any claim for any such special, indirect,
consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
SECTION 11.16
Certain Defined Terms
. As used in this Agreement (including its Exhibits), the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"
ABL Credit Agreement
" has the meaning assigned to such term in the introductory
statement.
"
Account Debtors
" has the meaning assigned to such term in the Background.
"
Administrative Agent
" has the meaning assigned to such term in the introductory
statement.
"
Adverse Claim
" means any Lien other than a Permitted Lien; it being understood that any
Lien in favor of, or assigned to, the Administrative Agent (for the benefit of
the Secured Parties under the ABL Credit Agreement) shall not constitute an
Adverse Claim.
"
Agreement
" has the meaning assigned to such term in the preamble.
"
Borrower Purchase Facility
" has the meaning assigned to such term in
Section 1.1
.
"
Borrower Purchase Termination Date
" has the meaning assigned to such term in
Section
1.4
.
"
Buyer
" has the meaning assigned to such term in the preamble.
"
Collections
" means, with respect to any Pool Receivable: (a) all funds that are received
by Seller or the Buyer in payment of any amounts owed in respect of such Pool
Receivable (including
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purchase price, finance charges, interest and all other charges), or applied
to amounts owed in respect of such Pool Receivable and (b) all other proceeds
of such Pool Receivable.
"
Company
" has the meaning assigned to such term in the preamble.
"
Company Credit Agreement
" means that certain Third Amended and Restated Credit Agreement, dated as of
May 14, 2021, by and among the Company, as Borrower, the lenders from time to
time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent,
Swingline Lender and Issuing Bank (as amended, amended and restated,
supplemented or modified from time to time).
"
Contract
" means, with respect to any Receivable, any and all contracts, instruments,
agreements, terms, leases, invoices, notes or other writings pursuant to which
such Receivable arises or that evidence such Receivable or under which an
Account Debtor becomes or is obligated to make payment in respect of such
Receivable.
"
Cut-Off Date
" shall have the meaning assigned to such term in the Intermediate Purchase
Agreement.
"
Dilution Factor
" has the meaning assigned to such term in the Intermediate Purchase
Agreement.
"
Excluded Amounts
" means taxes and other amounts collected by any Originator for others
(including payments to the Public Benefit Fund and Green Infrastructure fees
(GEMS)) as listed in reasonably satisfactory detail on a certificate of a
Servicer Responsible Officer (as updated and delivered to the Administrative
Agent from time to time).
"
Excluded Receivables
" shall have the meaning assigned to such term in the Intermediate Purchase
Agreement.
"
Final Payout Date
" means the date on which (i) no interest or principal in respect of the Loans
shall be outstanding, and (ii) all other amounts owing to the Lenders, the
Administrative Agent and the other Indemnitees under the Credit Agreement and
each of the other Loan Documents have been paid in full (other than
indemnification or other contingent obligations not yet due and owing).
"
HECO
" has the meaning assigned to such term in the preamble.
"
Initial Borrowing Date
" is defined in the ABL Credit Agreement.
"
Intermediate Account
" shall have the meaning assigned to such term in the Intermediate Purchase
Agreement.
"
Non-Commodity Related Receivables
" means accounts receivable resulting from (i) receivables other than for the
delivery, distribution and transmission of electricity and charges included as
part of the combined invoices for such electric power delivery and
transmission services, including those received from the Hawaii Authority for
Rapid Transportation (HART) for the construction and supply of infrastructure,
"joint pole" related billing, contributions in aid of construction, customer
advances, payments related to the privatization of the U.S. Army electric
systems, line extension (overhead and underground), interconnection fees,
damage claims, and revenue protection, (ii) receivables from temporary
services of the type set forth in Hawaiian Electric Tariff Rule 12 and
receivables from special facilities service request of the type set forth in
Hawaiian Electric Tariff Rule 13 section D, 5, and (iii) receivables from any
Affiliate (other than American Savings Bank, F.S.B. and any employees,
officers, directors or
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stockholders that are natural persons) resulting from the delivery,
distribution and transmission of electric power to such Affiliate.
"
Outstanding Balance
" of any Receivable at any time means the then outstanding principal balance
thereof (after giving effect to any U.S. GAAP Ordinary Course Reserves).
"
Payment Date
" (i) the Purchase Agreement Effective Date and (ii) each Business Day
thereafter that the Seller is open for business.
"
Person
" means an individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political
subdivision or agency thereof.
"
Pool Receivable
" means a Receivable in the Receivables Pool.
"
Purchase Agreement Effective Date
" has the meaning assigned to such term in
Section 4.1
.
"
Purchase and Contribution Indemnified Amounts
" has the meaning assigned to such term in
Section 10.1
.
"
Purchase and Contribution Indemnified Party
" has the meaning assigned to such term in
Section 10.1
.
"
Purchase and Contribution Termination Event
" has the meaning assigned to such term in
Section 9.1
.
"
Purchase Price
" has the meaning assigned to such term in
Section 1.3
.
"
Receivable
" means any indebtedness and other obligations owed to the Originators, the
Seller or the Buyer by, or any right of the Buyer, the Seller or any
Originator to payment from or on behalf of, an Account Debtor, whether
constituting an account, chattel paper, a payment intangible, an instrument or
a general intangible, in each instance arising in connection with such
Person's ordinary course sale electric utility customers of electricity
(including transmission, distribution and production thereof), and includes,
without limitation, the obligation to pay any finance charges, fees and other
charges with respect thereto, but excludes all Non-Commodity Related
Receivables. Payment obligations arising from such goods or services in
respect of any one billing cycle, including, without limitation, payment
obligations represented by an individual invoice or agreement, shall
constitute a Receivable separate from a Receivable consisting of payment
obligations arising from any such goods or services in respect of any other
billing cycle or any other transaction.
"
Receivables Pool
" means, at any time, all of the then outstanding Subject Receivables
purchased or acquired by the Buyer pursuant to this Agreement prior to the
Purchase Termination Date.
"
Reconveyable Receivable
" shall have the meaning assigned to such term in the Intermediate Purchase
Agreement.
"
Related Rights
" has the meaning assigned to such term in
Section 1.1
.
"
Related Security
" with respect to any Receivable means:
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(a) [reserved];
(b) all instruments and chattel paper that may evidence such Receivable;
(c) all security interests or liens and property subject thereto from time
to time purporting to secure payment of such Receivable, whether pursuant to
the Contract related to such Receivable or otherwise, together with all UCC
financing statements or similar filings relating thereto;
(d) all of the Buyer's, the Seller's and the Originator's rights, interests
and claims under the Contracts, including all rights to service and enforce
the Contract and all guaranties, indemnities, insurance and other agreements
(including the related Contract) or arrangements of whatever character from
time to time supporting or securing payment of such Receivable or otherwise
relating to such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise; and
(e) all of the Buyer's rights, interests and claims hereunder and under the
other Loan Documents.
"
Sale Date
" has the meaning assigned to such term in
Section 1.2(b)
.
"
Seller
" has the meaning assigned to such term in the preamble.
"
Seller Material Adverse Effect
" means any event, change or condition that, individually or in the aggregate,
has had, or would reasonably be expected to have a material adverse effect on
(i) the Subject Receivables sold by it hereunder, (ii) the ability of the
Seller to perform its obligations under this Agreement and any other Loan
Document to which the Seller is a party; or (iii) the material rights and
remedies of the Administrative Agent (as Buyer's assignee for the benefit of
the Secured Parties under the ABL Credit Agreement) under this Agreement and
the other Loan Documents to which the Seller is a party, including the
legality, validity, binding effect or enforceability of this Agreement and
such other Loan Documents.
"
Seller Responsible Officer
" means the chief executive officer, president, vice president, chief
financial officer, chief administrative officer, secretary or assistant
secretary, treasurer or assistant treasurer, controller or other similar
officer of the Seller or any other responsible officer or employee of the
Seller designated in or pursuant to an agreement between the Seller and the
Administrative Agent.
"
Servicer
" has the meaning assigned to such term in
Section 8.1(a)
.
"
Servicer Responsible Officer
" means the chief executive officer, president, vice president, chief
financial officer, chief administrative officer, secretary or assistant
secretary, treasurer or assistant treasurer, controller or other similar
officer of any Servicer or any other responsible officer or employee of such
Servicer designated in or pursuant to an agreement between such Servicer and
the Administrative Agent.
"
Servicing Expenses
" has the meaning assigned to such term in
Section 8.1(c)
.
"
Servicing Fee
" has the meaning assigned to such term in
Section 8.1(c)
.
"
Set-off Party
" has the meaning assigned to such term in
Section 11.3
.
26
US-DOCS\149440763.13
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"
Subject Receivable
" shall have the meaning assigned to such term in the Intermediate Purchase
Agreement.
"
Unmatured Purchase and Contribution Termination Event
" has the meaning assigned to such term in
Section 9.1
.
"
U.S. GAAP Ordinary Course Reserves
" means any reductions to the Outstanding Balance of any Receivable properly
recorded in accordance with GAAP which relate to any discounts, chargebacks
and rebates incurred in the ordinary course of business.
[Signature Pages Follow]
27
US-DOCS\149440763.13
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized as of the date first above
written.
HE AR BRWR LLC,
as Buyer
By: HE AR INTER LLC
Its Member
By: HAWAIIAN ELECTRIC COMPANY, INC.
Its Member
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its President and
Chief Executive Officer
By: /s/ Paul K. Ito
Paul K. Ito
Its Senior Vice President,
Chief Financial Officer & Treasurer
HE AR INTER LLC,
as Seller
By: HAWAIIAN ELECTRIC COMPANY, INC.
Its Member
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its President and
Chief Executive Officer
By: /s/ Paul K. Ito
Paul K. Ito
Its Senior Vice President,
Chief Financial Officer & Treasurer
HAWAIIAN ELECTRIC COMPANY, INC
, as Servicer
By: /s/ Shelee M. T. Kimura
Shelee M. T. Kimura
Its President and
Chief Executive Officer
By: /s/ Paul K. Ito
Paul K. Ito
Its Senior Vice President,
Chief Financial Officer & Treasurer
[Signature Page to the Purchase and Contribution Agreement]
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Schedule I
List and Location of the Seller
Delaware
Schedule I
Borrower Purchase and Contribution Agreement
US-DOCS\149440763.13
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Schedule II
Location of Books and Records of the Seller
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
Schedule II
Borrower Purchase and Contribution Agreement
US-DOCS\149440763.13
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Schedule III
[Reserved]
Schedule III
Borrower Purchase and Contribution Agreement
US-DOCS\149440763.13
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Schedule IV
Notice Addresses
If to the Seller:
HE AR INTER LLC
P.O. Box 2750
Honolulu, Hawaii 96840
With a copy to each of:
Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
and
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
If to the Buyer:
HE AR BRWR LLC
P.O. Box 2750
Honolulu, Hawaii 96840
With a copy to each of:
Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
and
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
Schedule IV
Borrower Purchase and Contribution Agreement
US-DOCS\149440763.13
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If to the Servicer:
HAWAIIAN ELECTRIC COMPANY, INC.
c/o Hawaiian Electric Company, Inc.
1099 Alakea Street, Suite 2200, Honolulu, Hawaii 96813
ATTN: Paul K. Ito, Senior Vice President, Chief Financial Officer & Treasurer
Paul.ito@hawaiianelectric.com
With a copy to:
Bjorn Bjerke, Esq.
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue, NY 10022
bjorn.bjerke@aoshearman.com
Schedule IV
Borrower Purchase and Contribution Agreement
US-DOCS\149440763.13
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