AMENDMENT NO. 2 TO AMENDED AND RESTATED REIMBURSEMENT AGREEMENT
Execution Version
EXHIBIT 10.2
AMENDMENT NO. 2 TO
AMENDED AND RESTATED REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED REIMBURSEMENT AGREEMENT (this “Amendment”), dated as of May 22, 2023 is made by and among FREIGHTCAR AMERICA, INC., a Delaware corporation (“Company”), the subsidiary guarantors party hereto (the “Subsidiary Guarantors” and together with the Company, the “Loan Parties”), CO FINANCE LVS VI LLC, a Delaware limited liability company (“LC Provider”), U.S. BANK, NATIONAL ASSOCIATION (“Disbursing Agent”), and U.S. BANK NATIONAL ASSOCIATION, as collateral agent for the Secured Parties (“Collateral Agent” and together with the Disbursing Agent, the “Agents” and each, an “Agent”).
R E C I T A L S:
WHEREAS, certain of the parties have previously entered into that certain Credit Agreement, dated as of October 13, 2020, by and among Company, FreightCar North America, LLC (“Borrower”), the several financial institutions or other entities from time to time parties thereto including LC Provider (the “Lenders”), the Disbursing Agent and the Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Amended Credit Agreement”);
WHEREAS, Company has requested, and LC Provider has obtained, a standby letter of credit (as may be amended from time to time, the “Credit”) from Xxxxx Fargo Bank, N.A. (“Issuer”), in the principal sum of $25,000,000 (TWENTY-FIVE MILLION AND 00/100 DOLLARS) (the “Principal Amount”) for the account of Company and for the benefit of SIENA LENDING GROUP LLC (“Beneficiary”);
WHEREAS, Company has agreed to reimburse Disbursing Agent, for the account of LC Provider, in the event of any drawings under the Credit by Beneficiary;
WHEREAS, in connection with the aforementioned recitals, Company, LC Provider, Disbursing Agent and Alter Domus (US) LLC, as calculation agent for LC Provider (in such capacity, “Calculation Agent”), entered into that certain Reimbursement Agreement dated as of July 30, 2021 (the “Original Reimbursement Agreement”), which was subsequently amended and restated by the Company, LC Provider, Disbursing Agent and Calculation Agent on December 30, 2021 (the Original Reimbursement Agreement as so amended and restated, the “Amended and Restated Reimbursement Agreement”);
WHEREAS, the Amended and Restated Reimbursement Agreement is a Loan Document under the Amended Credit Agreement, and the obligations of the Company under the Amended and Restated Reimbursement Agreement are Obligations (under and as defined in the Amended Credit Agreement) secured by the Collateral;
WHEREAS, on March 23, 2023, the Company and certain funds affiliated with the LC Provider entered into the Securities Purchase Agreement pursuant to which the purchasers thereunder agreed to purchase newly-issued preferred securities of the Company, the proceeds of which will be used to pay in full in cash all of the outstanding Obligations under the Amended Credit Agreement other than the Reimbursement Obligations in respect of the Credit (the “Conversion Transaction”); and
WHEREAS, in connection with the Conversion Transaction, the parties wish to (i) terminate the Amended Credit Agreement other than with respect to the Company’s obligations in respect of the Credit, (ii) amend the Guarantee and Collateral Agreement, (iii) amend the Intercreditor Agreement and (iv) amend the Amended and Restated Reimbursement Agreement to reflect the Company’s continuing obligations to LC Provider in respect of the Credit, which obligations shall (x) after the Second Amendment Effective Date (as defined below), be solely as set forth in the Amended and Restated Reimbursement Agreement, as amended hereby (the “Reimbursement Agreement”) and (y) continue to be secured by the Collateral.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Capitalized Terms. All capitalized undefined terms used in this Amendment (including without limitation, in the Recitals hereto) shall have the meanings assigned thereto in the Reimbursement Agreement.
SECTION 2. Amendments to Reimbursement Agreement.
On and as of the Second Amendment Effective Date, the Amended and Restated Reimbursement Agreement is amended by (i) deleting the stricken text (indicated textually in the same manner as the following example: stricken text) and (ii) inserting the underlined text (indicated textually in the same manner as the following example: inserted text), in each case set forth on Exhibit A hereto.
SECTION 3. Effectiveness. This Amendment shall become effective on the date upon which each of the following conditions is satisfied (such date, the “Second Amendment Effective Date”):
3.1 This Amendment. The Disbursing Agent and LC Provider shall have received this amendment, duly executed and delivered by the Disbursing Agent, Collateral Agent, LC Provider, the Company and each Subsidiary Guarantor, in form and content acceptable to the Disbursing Agent, Collateral Agent and LC Provider.
3.2 Amendment to Intercreditor Agreement. LC Provider and the Collateral Agent shall have received a duly executed and delivered Amendment No. 5 to Intercreditor Agreement, in form and content acceptable to the Collateral Agent and LC Provider.
3.3 Amendment to Guarantee and Collateral Agreement. LC Provider and Collateral Agent shall have received a duly executed and delivered Amendment No. 1 to Guarantee and Collateral Agreement, in form and content acceptable to the Collateral Agent and LC Provider.
3.4 Fees. The LC Provider, the Collateral Agent and the Disbursing Agent shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including but not limited to (i) any Letter of Credit Fee and Cash Fee that accrued during the Closing Period, and (ii) to the extent
invoiced at least one Business Day prior to the Second Amendment Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, disbursements and other charges of counsel) required to be reimbursed or paid under this Amendment or any Loan Document.
SECTION 4. Limited Effect. Except as expressly provided herein, the Reimbursement Agreement shall remain unmodified and in full force and effect. This Amendment shall not be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Reimbursement Agreement or a waiver of any other Default or Event of Default (except as expressly provided herein), (b) to prejudice any right or rights the LC Provider or any Agent may now have or may have in the future under or in connection with the Reimbursement Agreement, as the same may be amended, restated, supplemented or modified from time to time, or (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Company or any other Person with respect to any waiver, amendment, modification or any other change to the Reimbursement Agreement or any rights or remedies arising in favor of any Agent or the LC Provider, under or with respect to any such documents.
SECTION 5. Representations and Warranties. Each Loan Party represents and warrants that (a) it has the organizational power and authority to make, deliver and perform this Amendment, (b) it has taken all necessary organizational or other action to authorize the execution, delivery and performance of this Amendment, (c) this Amendment has been duly executed and delivered by it, (d) this Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law, (e) each of the representations and warranties made by the Company in Section 5 of the Reimbursement Agreement is true and correct in all material respects as to each Loan Party on and as of the date hereof with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects, (f) as of the date hereof, it has no defenses, setoffs, rights of recoupment, counterclaims or claims of any nature whatsoever with respect to the obligations due thereunder, and to the extent any such defenses, setoffs, rights of recoupment, counterclaims or claims may exist on or prior to the date hereof, the same are hereby expressly waived, released and discharged, and (g) after giving effect to this Amendment, Amendment No. 5 to Intercreditor Agreement and Amendment No. 1 to Guarantee and Collateral Agreement, no Default or Event of Default has occurred and is continuing as of the date hereof or after giving effect hereto.
SECTION 6. Costs and Expenses. The Company agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by the LC Provider and each Agent and their respective Affiliates in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable and documented fees, charges and disbursements of counsel for the LC Provider and each Agent with respect thereto and with respect to advising the LC Provider and each Agent as to its rights and responsibilities hereunder and thereunder.
SECTION 7. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. In proving this Amendment in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures delivered by a party hereto by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.
SECTION 8. Governing Law. THIS AMENDMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AMENDMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW.
SECTION 9. Entire Agreement; Section Heading; Severability. This Amendment is the entire agreement, and supersedes any prior agreements and contemporaneous oral agreements, of the parties concerning its subject matter. The Section headings used in this Amendment are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10. Successors and Assigns. This Amendment shall be binding on and inure to the benefit of the parties and their respective heirs, beneficiaries, successors and permitted assigns.
SECTION 11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11. EACH PARTY
HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
SECTION 12. Reaffirmation; Other Agreements. Each Loan Party, as of the Second Amendment Effective Date, (i) acknowledges and agrees that that all of its obligations in respect of the Credit under the Amended Credit Agreement remain outstanding under the Reimbursement Agreement, and that all of its Reimbursement Obligations under the Reimbursement Agreement and other Loan Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis as and to the extent provided in the Loan Documents; (ii) reaffirms each Lien granted by it to the Collateral Agent for the benefit of the Secured Parties and reaffirms its guarantee as and to the extent provided in the Loan Documents; and (iii) acknowledges and agrees that the grants of security interests by and the guarantee of the Loan Parties, and all Security Documents are, and shall remain, in full force and effect after giving effect to this Amendment as and to the extent provided in the Loan Documents. Nothing in this Amendment shall be construed as a substitution or novation of the obligations in respect of the Credit outstanding under the Amended Credit Agreement, the Reimbursement Agreement or any other Loan Document, and such obligations remain in full force and effect, except to any extent modified hereby.
SECTION 13. LC Provider Direction. By its execution and delivery of its signature page hereto, the LC Provider is authorizing and directing each of the Collateral Agent and Disbursing Agent to execute and deliver (i) this Amendment, (ii) that certain Amendment No. 5 to Intercreditor Agreement (attached hereto as Exhibit B), and (iii) that certain Amendment No. 1 to Guarantee and Collateral Agreement (attached hereto as Exhibit C).
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers, all as of the day and year first written above.
COMPANY:
FREIGHTCAR AMERICA, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
Address for Notices to the Company and the Subsidiary Guarantors:
Freight Car America, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Chicago, Illinois 60606
Attention: Xxxxxxx Xxxxxxx, Chief Financial Officer
Email: xxxxxxxx@xxxxxxxxxx.xxx
With a copy (which does not constitute notice) to:
Freight Car America, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Chicago, Illinois 60606
Attention: Xxxxx Xxxxx, General Counsel
Email: xxxxxxxx@xxxxxxxxxx.xxx
SUBSIDIARY GUARANTORS:
FREIGHTCAR NORTH AMERICA, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
JAC OPERATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FREIGHT CAR SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
JAIX LEASING COMPANY
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FREIGHTCAR SHORT LINE, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
JOHNSTOWN AMERICA, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FREIGHTCAR ALABAMA, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FREIGHTCAR RAIL SERVICES, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FCA-FASEMEX, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FCA-FASEMEX, S. DE X.X., DE C.V.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
FCA-FASEMEX ENTERPRISE, S. DE X.X., DE C.V.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Person
LC PROVIDER:
CO FINANCE LVS VI LLC
By: /s/ Xxxxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Authorized Person
Address for Notices:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxx Xxxxxx
Forty-Third Floor
Los Angeles, CA 90071
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone 000-000-0000
Facsimile: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
DISBURSING AGENT AND COLLATERAL AGENT:
U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Disbursing Agent and Collateral Agent and not in its individual capacity
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
Address for Notices:
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Charlotte, NC 28202
Attention: CDO Trust Services/Xxxxx Xxxxxx
Fax No: 000-000-0000
Tel: 000-000-0000
Email: xxxxx.xxxxxx0@xxxxxx.xxx
Exhibit A
Amended Reimbursement Agreement
[attached]
FINAL VERSION
AmericasActive:18517392.8
Exhibit A
Amended and Restated Reimbursement Agreement
This AMENDED AND RESTATED REIMBURSEMENT AGREEMENT (this
“Agreement”) is entered into, dated as of December 30, 2021 and amended as of May 22, 2023, is by and among: (i) CO FINANCE LVS VI LLC, a Delaware limited liability company, as LC Provider (in such capacity and together with its successors and permitted assigns in such capacity, “LC Provider”; provided that there shall only be one LC Provider at any time), (ii) U.S. BANK, NATIONAL ASSOCIATION, as Disbursing Agentdisbursing agent (in such capacity and together with its successors and permitted assigns in such capacity, “Disbursing Agent”), (iii) ALTER DOMUS (US) LLC, as calculation agent for LC Provider (in such capacity and and as collateral agent for the Secured Parties (together with its successors and permitted assigns in such capacity, the “CalculationCollateral Agent”), and (iv)(iii) FREIGHTCAR AMERICA, INC., a Delaware corporation (“Company”).
WHEREAS, certain of the parties have previously entered into that certain Credit Agreement, dated as of October 13, 2020, by and among Company, FreightCar North America, LLC (“Borrower”), the several financial institutions or other entities from time to time parties thereto including LC Provider (the “Lenders”), the Disbursing Agent and U.S. Bank National Association, as collateral agent for the Secured Parties (as defined therein) (as amended by that certain Amendment No. 1 to Credit Agreement dated as of January 30, 2021, Amendment No. 2 to Credit Agreement dated as of May 14, 2021, Amendment No. 3 to Credit Agreement dated as of July 30, 2021, Amendment No. 4 to Credit Agreement dated as the date hereof, and as it may be further amended, restated, supplemented or otherwise modified from time to timeof December 30, 2021, Amendment No. 5 to Credit Agreement dated as of March 1, 2022, Amendment No. 6 to Credit Agreement dated as of January 30, 2023, Amendment No. 7 to Credit Agreement dated as of February 27, 2023, and Amendment No. 8 to Credit Agreement dated as of March 23, 2023, the “Amended Credit Agreement”). All capitalized undefined terms used in this Agreement shall have the meanings assigned thereto in the Amended Credit Agreement.
WHEREAS, Company has requested, and LC Provider has obtained, a standby letter of credit (as may be amended from time to time, the “Credit”) from Xxxxx Fargo Bank, N.A. (“Issuer”), in the principal sum of $25,000,000 (TWENTY-FIVE MILLION AND 00/100 DOLLARS) (the “Principal Amount”) for the account of Company and for the benefit of SIENA LENDING GROUP LLC (“Beneficiary”).
WHEREAS, Company has agreed to reimbursemake payments to the Disbursing Agent, for the account of LC Provider, in the event of any drawings under the Credit by Beneficiary.
WHEREAS, in connection with the aforementioned recitals, Company, LC Provider, Disbursing Agent and Alter Domus (US) LLC, as calculation agent (in such capacity, the “Calculation Agent”) entered into that certain Reimbursement Agreement dated as of July 30, 2021 (the “Original Reimbursement Agreement”), which was subsequently amended and restated by the Company, LC Provider, Disbursing Agent and Calculation Agent on December 30, 2021 (the Original Reimbursement Agreement as so amended and restated, the “Amended and Restated Reimbursement Agreement”).
WHEREAS, Company, LC Provider, Disbursing Agent and Calculation Agent desire to amend and restate the Original Reimbursement Agreement on the terms set forth herein
WHEREAS, the Amended and Restated Reimbursement Agreement is a Loan Document under the Amended Credit Agreement, and the obligations of the Company under the Amended and Restated Reimbursement Agreement are Obligations (under and as defined in the Amended Credit Agreement) secured by the Collateral.
WHEREAS, on March 23, 2023, the Company and certain funds affiliated with the LC Provider entered into the Securities Purchase Agreement (the “Securities Purchase Agreement”) pursuant to which the purchasers thereunder agreed to purchase newly-issued preferred securities of the Company (the “Preferred Shares”), the proceeds of which will be used to pay in full in cash all of the outstanding Obligations under the Amended Credit Agreement other than the Reimbursement Obligations in respect of the Credit (the “Conversion Transaction”).
WHEREAS, in connection with the Conversion Transaction, the parties wish to (i) terminate the Amended Credit Agreement (but, for the avoidance of doubt, the Company’s obligations in respect of the Credit shall not be terminated), and (ii) amend the Amended and Restated Reimbursement Agreement to reflect the Company’s continuing obligations to LC Provider in respect of the Credit, which obligations shall (x) after the Second Amendment Effective Date (as defined below), be solely as set forth in this Agreement and (y) continue to be secured by the Collateral.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), Company agrees that the following terms and conditions of this Agreement shall apply to the Credit:
(a) for the period commencing on the Second Amendment Effective Date and ending on July 29, 2023 (i.e., in respect of the Measurement Period that commenced prior to the Second Amendment Effective Date), an amount equal to $287,671.23; and
(b) for each Measurement Period thereafter, the Cash Fee (i.e., $375,000 each quarter); provided that if this Agreement terminates for any reason whatsoever, including, for the avoidance of doubt, upon payment, expiration or cancellation of the Credit, on a date other than the last day of a Measurement Period, the Cash Fee for the then-current Measurement Period shall be an amount equal to the product of: (A) the number of days elapsed in the Measurement Period in which this Agreement terminates (including the first day of such Measurement Period and the day that this Agreement terminates) divided by 365, multiplied by (B) $1,500,000 (such amount, the “Termination Payment”).
The LC Provider shall calculate the Termination Payment in connection with the termination of this Agreement and shall notify the Disbursing Agent and Company of such amount on suchthe date of determination date; and. Neither the Disbursing Agent nor the Collateral Agent shall be responsible for calculation of the Termination Payment. For the avoidance of doubt, the Termination Payment shall be due in cash on the date that this Agreement terminates. The Cash Fee and Termination Payment shall each be fully earned when paid and shall not be refundable for any reason whatsoever.
provided, however, that Excluded Assets shall not include any proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (a) through (i) (unless such Proceeds, substitutions or replacements would independently constitute Excluded Assets referred to in clauses (a) through (i)).
(ii) To the extent that Company for any reason fails to indefeasibly indemnify Disbursing Agent, Collateral Agent or Calculation Agent or pay any amount required under Section 2(a)(vvi), Section 4(a)(i) andor Section 8 to be paid by it to Disbursing Agent or Calculationsuch Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, LC Provider agrees to indemnify Disbursing Agent and Calculationsuch Agent from and against any all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature, including, without limitation, the fees and expenses of its agents and attorneys, whatsoever which may be imposed on, incurred by or asserted against Disbursing Agent or Calculationsuch Agent in performing their respectiveits duties hereunder, or in any way relating to or arising out of this Agreement or any other Loan Document and pay to Disbursing Agent or Calculationsuch Agent or any such sub-agent or such Related Party such unpaid amount (including any such unpaid amount in respect of a claim asserted by such LC Provider); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Disbursing Agent or Calculationsuch Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for Disbursing Agent or Calculationsuch Agent (or any such sub-agent) in connection with such capacity.
(a) comply with all federal, state and foreign laws, treaties, rules and regulations of any Governmental Authority constituting Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions or foreign exchange control or currency reporting laws or regulations now or hereafter applicable to Company, this Agreement or to any transactions or payments under or in connection with the Credit;
(b) not, directly or indirectly, use or facilitate the use by any other Person of the Credit (i) to fund any activities or business of, or with, any Sanctioned Person or (ii) that would in any manner cause Issuer or LC Provider to be in breach of any
Sanction;
(c) not pay amounts to Disbursing Agent or LC Provider (or its designee) hereunder with proceeds derived from any transaction that would be prohibited by Sanctions or would otherwise cause Disbursing Agent and/or LC Provider (or its designee) to be in breach of any Sanction;
(d) maintain financial records in accordance with the Amended Credit Agreement as in effect immediately prior to the Second Amendment Effective Date;
(e) pay, discharge or otherwise satisfy as the same shall become due and payable in the normal conduct of its business all its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property, except, in each case, (i) to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP, or (ii) if such failure to pay or discharge such obligations and liabilities would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (b) timely and accurately file all federal, state and other material Tax returns required to be filed;
(f) deliver to Disbursing Agent, Calculation Agent or LC Provider such other information (financial or otherwise) as Disbursing Agent, Calculation Agent or LC Provider may from time to time reasonably request related to Company, this Agreement or, the Credit or the transactions related hereto and (f;
(g) at Company’s cost and expense, execute and deliver to Disbursing Agent, Calculation Agent or LC Providerand, where applicable, file such additional certificates, instruments, financing agreements, Mortgages, deeds of trust and/or documents and take such additional action as Disbursing Agent, Calculationmay be necessary or as any Agent or LC Provider may reasonably request to enable Disbursing Agent, Calculationeach Agent and LC Provider to (i) protect, exercise and/or enforce Disbursing Agent’s, Calculationeach Agent’s and LC Provider’s rights and interests under this Agreement and, (ii) give effect to the terms and provisions of this Agreement. and (iii) grant, preserve, protect and perfect the validity and priority of the security interests and liens created or intended to be created by the Security Documents;
(h) in the event that (x) any Person becomes a Subsidiary (other than an Excluded Subsidiary) of the Company or any other Loan Party or (y) any Subsidiary of the Company or any other Loan Party that was previously an Excluded Subsidiary ceases to be an Excluded Subsidiary, then the Company will and will cause each such other Person to (i) within 30 days after such event (or such longer period of time reasonably acceptable to the LC Provider), cause such Person referred to in clause (x) or (y), as applicable to become a Guarantor and a Grantor under (and as defined in) the Guarantee and Collateral Agreement by executing and delivering to the Collateral Agent a counterpart agreement or supplement to the Guarantee and Collateral Agreement in accordance with its terms and (ii) take all such actions and
execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements and certificates necessary or as may be reasonably requested by the Collateral Agent or the LC Provider in order to cause the Collateral Agent, for the benefit of the Secured Parties, to have a Lien on all assets of such Person (other than Excluded Assets), which Lien shall (other than with respect to assets constituting Excluded Perfection Assets) be perfected and shall be of first priority (subject to (i) in the case of all such assets constituting Equity Interests, Permitted Equity Liens and (ii) in the case of all such other assets, Permitted Liens) and shall deliver or cause to be delivered to the Collateral Agent, items as are similar to those described in Sections 4.02(e), 4.02(h), 4.02(j) and 4.02(k) and Section 5.14 of the Amended Credit Agreement as in effect immediately prior to the Second Amendment Effective Date, and Section 5 of the Guarantee and Collateral Agreement and, to the extent applicable, any additional Mexican Security Documents. With respect to each such Subsidiary of the Company or any other Loan Party, the Company shall, within 30 days of such event (or such longer period of time reasonably acceptable to the LC Provider), send to the LC Provider and the Collateral Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary (that is not an Excluded Subsidiary) of the Company or any other Loan Party or ceased to be an Excluded Subsidiary and (ii) all of the data required to be set forth in Schedule 3.18 to the Amended Credit Agreement as in effect immediately prior to the Second Amendment Effective Date with respect to all Subsidiaries of the Company. Notwithstanding anything to the contrary set forth herein, in no event shall this Section 6(h) require the granting of any Lien on any Excluded Assets or the perfection of any Lien on any Excluded Perfection Assets;
(i) in the event that (i) any Loan Party acquires any Material Owned Real Property, (ii) any Person becomes a Subsidiary (other than an Excluded Subsidiary) of the Company or any other Loan Party and such Person owns any Material Owned Real Property at such time, (iii) any Subsidiary ceases to be an Excluded Subsidiary and such Subsidiary owns any Material Owned Real Property at such time or (iv) any Real Property of a Loan Party becomes Material Owned Real Property after the Second Amendment Effective Date, and such interest in such Material Owned Real Property has not otherwise been made subject to the Lien of the Security Documents in favor of Collateral Agent for the benefit of the Secured Parties, then the Company shall, or shall cause such Subsidiary to, within 90 days of such event (or such longer period of time reasonably acceptable to the LC Provider), take all such actions and execute and deliver, or cause to be executed and delivered, all such Mortgages, documents, instruments, agreements and certificates with respect to each such Material Owned Real Property as are necessary or that the LC Provider or the Collateral Agent shall reasonably request to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid first-priority security interest (subject to Permitted Prior Liens) in such Material Owned Real Property and shall deliver to the Collateral Agent title reports, surveys necessary to provide a Title Policy (defined below), ALTA mortgagee extended coverage title insurance policies or commitments therefor issued by one or more title companies (the “Title Company”) reasonably satisfactory to the LC Provider with respect to each Mortgaged Property (each, a
“Title Policy”), in amounts not less than 110% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first-priority Lien on the Mortgaged Property encumbered thereby, together with all endorsements reasonably requested by the LC Provider, legal opinions, flood certificates, flood insurance (if required) and other items with respect to such Material Owned Real Property. In addition to the foregoing, the Company shall, at the request of the Collateral Agent or the LC Provider, deliver, from time to time, to the Collateral Agent such appraisals as are required by law or regulation of any Material Owned Real Property with respect to which the Collateral Agent has been granted a Lien;
(j) (x) preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization, except for any transaction not expressly prohibited under the Loan Documents; (y) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (z) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect;
(k) (x) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (y) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (z) use the standard of care typical in the industry in the operation and maintenance of its facilities;
(l) (x) maintain with financially sound and reputable insurance companies not Affiliates of the Company, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or a similar business of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, and all such insurance shall (A) provide for not less than 30 days’ (10 days’ in the case of failure to pay premium) prior notice to the Collateral Agent of termination, lapse or cancellation of such insurance, (B) name the Collateral Agent as loss payee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance) and (C) be reasonably satisfactory in all other respects to the LC Provider; and (y) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect) or any successor act thereto, then the Company shall, or shall cause the applicable Loan Party to (A) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and
regulations promulgated pursuant to the Flood Disaster Protection Act and the National Flood Insurance Act of 1968 and (B) deliver to the Collateral Agent evidence of such compliance in form and substance reasonably acceptable to the LC Provider;
(m) promptly upon request by any Agent, or LC Provider, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) 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 Disbursing Agent, the Collateral Agent or LC Provider may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, it being understood, for the avoidance of doubt, that no Agent shall have any obligation, responsibility or liability to monitor or determine whether any of the foregoing actions are required;
(n) not amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, (i) any of the terms of the Revolving Loan Documents other than in accordance with the Intercreditor Agreement or (ii) any of the terms of any Scheduled Material Agreement, other than any such amendment, modification, waiver, change or consent which is not, and could not reasonably be expected to be, adverse in any material respect to the interests of LC Provider; and
(o) not permit the fiscal year of the Company to end on a day other than December 31 or change the Company’s method of determining fiscal quarters.
(a) Until payment in full in cash of all Reimbursement Obligations and termination of this Agreement in accordance with its terms, each of the following events shall constitute an Event of Default:
(i) the Company or any Loan Party shall fail to pay (i) any Reimbursement Obligations under Section 2(a)(ii) when due in accordance with the terms of this Agreement, or (ii) any other amount when due in accordance with this Agreement and the other Loan Documents, within three (3) Business Days after any such amount becomes due in accordance with the terms hereof or thereof; or
(ii) any representation, warranty, certification or statement of fact made or deemed made by on or behalf of the Company or any other Loan Party herein, in any other Loan Document or in any document or certificate delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(iii) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than as provided in Section 7(a)(i) or 7(a)(ii)) and such failure continues unremedied or unwaived for a period of 30 days after the earlier of (i) the date an officer of such Loan Party becomes aware of such default and (ii) the receipt by the Company of notice from the Disbursing Agent or the LC Provider of such default; or
(iv) any Loan Party shall (A) fail to pay any principal, interest or dividend, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become due and payable beyond any applicable grace period in respect thereof; or (B) fail to observe or perform any other term, covenant, agreement or condition relating to any Material 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 holders or beneficiaries of such Material Indebtedness (or a trustee or agent on behalf of such holders or beneficiaries) to cause, with or without the giving of notice, the lapse of time or both, such Material Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer to purchase by the obligor; or
(v) (i) a court of competent jurisdiction shall enter a decree or order for relief in respect of any Loan Party in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against any Loan Party under any Debtor Relief Laws now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over any Loan Party, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of any Loan Party for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of any Loan Party, and any such event described in this clause (ii) shall continue for 60 days without having been dismissed, bonded or discharged; or
(vi) (i) any Loan Party shall have an order for relief entered with respect to it or shall commence a voluntary case under any Debtor Relief Law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or any Loan Party shall make any assignment for the benefit of creditors; or (ii) any Loan Party shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of any Loan Party (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 7(a)(v); or
(vii) there occurs one or more ERISA Events which has resulted or could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or
(viii) one or more judgments shall be rendered against any Loan Party and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Loan Party to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $5,000,000 (to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) or (ii) is for injunctive relief and could reasonably be expected to result in a Material Adverse Effect; or
(ix) (i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement for any reason other than termination of the Credit and payment in full in cash of all Reimbursement Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any Security Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or termination of the Credit and payment in full in cash of all Reimbursement Obligations) or shall be declared null and void, or the Collateral Agent shall not have or shall cease to have a valid and perfected Lien on any material portion of the Collateral purported to be covered by the Security Documents with the priority required by the relevant Security Document, in each case, for any reason other than (x) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Preferred Documents or (y) as a result of the Collateral Agent’s failure to maintain possession of any stock certificates or other instruments actually received by it under the Security Documents, or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability under any Loan Document to which it is a party or shall contest the validity or perfection of any Lien on any Collateral (other than, solely with respect to perfection, any Excluded Perfection Assets) purported to be covered by the Security Documents; or
(x) any Change of Control shall occur; or
(xi) there shall have occurred the termination of, or the receipt by any Loan Party of notice of the termination of, or the occurrence of any event or condition which would, with the passage of time or the giving of notice or both, constitute an event of default under or permit the termination of, any one or more Material Agreements of any Loan Party; or
(xii) at any time after the execution and delivery thereof, any Intercreditor Agreement shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared null and void; or
(xiii) there shall have occurred any changes in tariffs or trade conditions applicable to the Loan Parties’ products or businesses that could reasonably be expected to result in a Material Adverse Effect; or
(xiv) no Preferred Shares purchased in the Conversion Transaction by funds affiliated with LC Provider shall remain outstanding.
(b) Upon the occurrence and during the continuance of any Event of Default: (a) on the Business Day following the date on which Company receives written notice from Disbursing Agent (at the written direction of LC Provider) or LC Provider (with a copy to the Disbursing Agent) demanding deposit of cash collateral, Company will deposit into an account established and maintained with a financial institution acceptable to LC Provider (“Collateral Account”) an amount in cash equal to 103% of the undrawn amount and any amounts drawn but not reimbursed of the Credit on such date (in each case as calculated by the LC Provider) and shall execute such other agreements in form and substance satisfactory to LC Provider; provided that the obligation to deposit such cash collateral will become effective immediately, without any demand or notice of any kind, upon the occurrence of an Event of Default under Section 7.01(f7(a)(v), 7(a)(vi) or 7.017(ga) of the Amended Credit Agreement(xiv). Company does hereby grant to LC ProviderCollateral Agent, for the benefit of the Secured Parties, as collateral security for the Reimbursement Obligations and performance by Company of all the terms, covenants and agreements to be performed under this Agreement, a security interest in all of the Company’s right, title and interest in, to and under, whether now or hereafter existing or arising, any such Collateral Account and all amounts on deposit therein, together with all proceeds thereof. LC Provider may assign such security interest to a collateral agent (which may or may not be the Collateral Agent For the avoidance of doubt and notwithstanding anything herein to the contrary, no Agent shall be responsible for, or have any duty to calculate or determine, the amount of any cash to be deposited into any Collateral Account and shall not be responsible for or have any duty to monitor compliance with this Section 7(b) atby any timeparty.
(c) Subject to the Intercreditor Agreement, after demand is made for cash collateralization of the Credit as provided for in Section 7(b), any amounts received on account of the Reimbursement Obligations shall be applied by the Disbursing Agent or the Collateral Agent, as the case may be, in the following order:
first, pro rata to payment of that portion of the Reimbursement Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to each Agent) payable to each Agent in its capacity as such;
second, to payment of that portion of the Reimbursement Obligations constituting fees, indemnities and other amounts (other than Reimbursement Obligations and interest) payable to the LC Provider (including fees, charges and disbursements of counsel to the LC Provider) arising under the Loan Documents;
third, to payment of that portion of the Reimbursement Obligations constituting unpaid draws on the Principal Amount and other unpaid Reimbursement Obligations arising under the Loan Documents not paid pursuant to any of the foregoing clauses; and
last, the balance, if any, after payment in full in cash of all Reimbursement Obligations and termination of this Agreement in accordance with its terms, to the Company or as otherwise required by Requirements of Law.
With respect to levels second and third of the foregoing proceeds waterfall, LC Provider agrees that, upon Disbursing Agent’s or Collateral Agent’s request, it shall promptly confirm to Disbursing Agent or Collateral Agent, as applicable, the Reimbursement Obligations owing to it, and Disbursing Agent or Collateral Agent, as applicable, shall be entitled to conclusively rely on such information in making any distributions to LC Provider and shall incur no liability for making distributions in reliance thereon. In furtherance of the foregoing, in no event shall Disbursing Agent or Collateral Agent be required to distribute any amounts under levels second or third above unless and until LC Provider has provided such information to it.
Calculation Agent may resign and be discharged from its duties hereunder at any time by giving at least thirty (30) days’ prior written notice of such resignation to Company, LC
Provider and Disbursing Agent specifying when such resignation shall take effect. Upon such notice of resignation or removal, LC Provider (in consultation with Company) shall appoint a successor calculation agent, and LC Provider shall provide written notice of such successor calculation agent to the outgoing Calculation Agent and Disbursing Agent. Such successor calculation agent shall become the calculation agent hereunder upon the resignation or removal date specified in such notice and Company and LC Provider shall cause such successor calculation agent to assume the obligations of Calculation Agent hereunder. If no successor calculation agent is appointed within thirty (30) days after such notice, Calculation Agent may, in its sole discretion, apply to a court of competent jurisdiction for the appointment of a successor calculation agent or for other appropriate relief. The reasonable and documented out-of-pocket costs and expenses (including its reasonable attorneys’ fees and expenses) incurred by Calculation Agent in connection with such court proceeding shall be paid by Company. Upon its resignation as set forth in this Section 8, Calculation Agent shall be discharged from any and all further obligations arising in connection with this Agreement.
Notwithstanding the foregoing, the parties have agreed (i) that the Calculation Agent may resign, and the Calculation Agent has so resigned, effective as of the Second Amendment Effective Date, and (ii) there will be no successor Calculation Agent.
(B) LC Provider agrees that in any instance in which this Agreement provides that the Disbursing Agent’s or Collateral Agent’s consent may not be unreasonably withheld, provide for the exercise of such Agent’s reasonable discretion, or provides to a similar effect, it shall not in its instructions (or, by refusing to provide instruction) to such Agent withhold its consent or exercise its discretion in an unreasonable manner. It is expressly agreed and acknowledged that neither the
Collateral Agent nor the Disbursing Agent is guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Security Documents. Neither the Collateral Agent nor the Disbursing Agent shall have liability for any failure, inability or unwillingness on the part of any party to provide accurate and complete information on a timely basis to such Agent, or otherwise on the part of any such party to comply with the terms of this Agreement or any other Loan Document, and shall have no liability for any inaccuracy or error in the performance or observance on any Agent’s part of any of its duties hereunder or under any other Loan Document that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(C) For purposes of clarity, and without limiting any rights, protections, immunities or indemnities afforded to the Collateral Agent or Disbursing Agent hereunder, phrases such as “satisfactory to the [Disbursing] [Collateral] Agent,” “approved by the [Disbursing] [Collateral] Agent,” “acceptable to the [Disbursing] [Collateral] Agent,” “as determined by the [Disbursing] [Collateral] Agent,” “in the [Disbursing] [Collateral] Agent’s discretion,” “selected by the [Disbursing] [Collateral] Agent,” “elected by the [Disbursing] [Collateral] Agent,” “requested by the [Disbursing] [Collateral] Agent,” and phrases of similar import that authorize and permit such Agent to approve, disapprove, determine, act or decline to act in its discretion shall be subject to such Agent receiving written direction from the LC Provider to take such action or to exercise such rights. Nothing contained in this Agreement shall require the Disbursing Agent or Collateral Agent to exercise any discretionary acts.
(D) Notwithstanding anything herein or in any Loan Document to the contrary and without limiting any rights, protections, immunities or indemnities afforded to the Collateral Agent or Disbursing Agent hereunder, references in any Loan Document to the “Lenders” or the “Required Lenders”, shall be deemed to be references to the LC Provider, and references in any Loan Document to the “Credit Agreement” or any provision thereof shall be deemed to be references to this Agreement and the applicable/comparable provision or provisions hereof.
(B) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any action taken or not taken by it (i) with the consent or at the request of LC Provider, or (ii) in the absence of its own gross negligence or willful misconduct (as determined by a final judgment issued by a court of competent jurisdiction no longer subject to appeal). The Disbursing Agent and the Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to an officer of the Disbursing Agent and the Collateral Agent with direct responsibility for administration of this Agreement in writing by the Company or LC Provider.
(C) The Disbursing Agent and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in any Loan Document.
(D) Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Disbursing Agent and the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Requirements of Law. Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.
(E) Each party to this Agreement acknowledges and agrees that the Collateral Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and
registrations from time to time) required to be filed or recorded pursuant to this Agreement or the other Loan Documents and the notification to the Collateral Agent, of, among other things, the upcoming lapse or expiration thereof, and that each of such service providers will be deemed to be acting at the request and on behalf of the Company. The Collateral Agent shall not be liable for any action taken or not taken by any such service provider.
(F) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any action taken in good faith and reasonably believed by it to be within the powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action (including without limitation for refusing to exercise discretion or for withholding its consent in the absence of its receipt of, or resulting from a failure, delay or refusal on the part of LC Provider to provide, written instruction to exercise such discretion or grant such consent). Neither the Disbursing Agent nor the Collateral Agent shall be liable for any error of judgment made by it in good faith (or by any officer or other employee of such Agent) unless it shall be determined pursuant to a non-appealable judgment of a court of competent jurisdiction that such Agent was grossly negligent in ascertaining the relevant facts. Nothing herein or in any other Loan Document or related documents shall obligate the Collateral Agent or Disbursing Agent to advance, expend or risk its own funds, or to take any action which in its reasonable judgment may cause it to incur any expense or financial or other liability for which it is not indemnified to its satisfaction.
(G) Neither the Disbursing Agent nor the Collateral Agent shall be liable for any indirect, special, punitive or consequential damages (including but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action. Any permissive grant of power to Collateral Agent or Disbursing Agent hereunder or under any Loan Documents shall not be construed to be a duty to act. Before acting hereunder, the Disbursing Agent and the Collateral Agent shall be entitled to request, receive and rely upon such certificates and opinions as either of them may reasonably determine appropriate with respect to the satisfaction of any specified circumstances or conditions precedent to such action. In no event shall the Disbursing Agent or the Collateral Agent be responsible or liable for: (i) delays or failures in performance resulting from acts beyond its control, including but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters, the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, (ii) any delay, error omission or default of any mail, telegraph, cable or wireless agency or operator, or (iii) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers. Neither the Disbursing Agent nor the Collateral Agent shall be liable for interest on any money received by it. For the avoidance of doubt, the Disbursing Agent’s and the Collateral Agent’s rights, protections, indemnities and
immunities provided herein shall apply to such Agent for any actions taken or omitted to be taken under this Agreement or any other Loan Documents and any other related agreements in any of their respective capacities. The Disbursing Agent and the Collateral Agent shall not be required to take any action under this Agreement, the other Loan Documents or any related document if taking such action (A) would subject the Disbursing Agent and the Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax, or (B) would require the Disbursing Agent and the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.
(H) Neither the Disbursing Agent nor the Collateral Agent shall have any liability for any failure, inability or unwillingness on the part of LC Provider or Loan Party to provide accurate and complete information on a timely basis to such Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall not have any liability for any inaccuracy or error in the performance or observance on such Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof.
(I) The Disbursing Agent and the Collateral Agent may at any time request instructions from LC Provider with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents such Agent is permitted or required to take or to grant. Without limiting Section 8(b)(ii)(A)(2), if the Disbursing Agent or the Collateral Agent shall request any such instructions, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from LC Provider as shall be expressly provided for herein or in the other Loan Documents, and such Agent shall not incur liability to any Person by reason of so refraining.
(J) Notwithstanding anything to the contrary, no Agent shall be deemed to have any notice or knowledge of the terms of the Credit and no Agent shall have any obligations under the Credit or any obligation to determine its, the LC Provider’s, the Issuer’s, the Beneficiary’s or any other person’s compliance with the terms of the Credit, and no Agent shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of the Credit by any party or person.
(B) With effect from the Resignation Effective Date (i) the retiring Disbursing Agent or Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of LC Provider under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (ii) except for any accrued but unpaid fees, unreimbursed expenses or any indemnity payments owed to the retiring Disbursing Agent or Collateral Agent, all payments, communications and determinations provided to be made by, to or through the Disbursing Agent shall instead be made by or to LC Provider directly, until such time, if any, as LC Provider appoints a successor Disbursing Agent or Collateral Agent as provided for above. Upon the acceptance of a successor’s appointment as Disbursing Agent or Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Disbursing Agent or Collateral Agent (other than any rights to accrued but unpaid fees, unreimbursed expenses or any indemnity payments owed to the retiring Disbursing Agent or Collateral Agent), and the retiring Disbursing Agent or Collateral Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Disbursing Agent or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring Disbursing Agent’s or Collateral Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 8 and Section 4 shall continue in effect for the benefit of such retiring Disbursing Agent or Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Disbursing Agent or Collateral Agent was acting as Disbursing Agent or Collateral Agent, as applicable.
(C) Any resignation by U.S. Bank National Association, as Disbursing Agent, shall also constitute its resignation as Collateral Agent.
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by LC Provider to make such payments to the Disbursing Agent and, in the event that the Disbursing Agent shall consent to the making of such payments directly to LC Provider, to pay to the Disbursing Agent and the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Disbursing Agent and the Collateral Agent and their respective agents and counsel, and any other amounts due to the Disbursing Agent and the Collateral Agent under this Agreement and the other Loan Documents.
Any such release of guarantee obligations or security interests shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
Any such release of Liens shall not in any manner discharge, affect, or impair the Reimbursement Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Notwithstanding anything contained herein or in the Loan Documents to the contrary, in no event shall the Disbursing Agent or the Collateral Agent be obligated to execute or deliver any document evidencing any release, subordination or re-conveyance without receipt of a certificate executed by a Responsible Officer of the Loan Party or Loan Parties disposing of such property certifying that such release, subordination or re-conveyance, as applicable, complies with this Agreement and the other Loan Documents, and that all conditions
precedent to such release, subordination or re-conveyance have been complied with. Upon request by the Disbursing Agent or the Collateral Agent at any time, LC Provider will confirm in writing the Disbursing Agent’s or the Collateral Agent’s authority to release, subordinate or re-convey its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 8(b)(ix).
(B) The Disbursing Agent and the Collateral Agent hereby disclaim any representation or warranty to LC Provider concerning, and shall not be responsible for or have a duty to ascertain or inquire into the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Disbursing Agent or the Collateral Agent be responsible or liable to LC Provider or any other Secured Party for any failure to monitor or maintain any portion of the Collateral. Neither Agent makes any representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Parties to the Collateral, or as to the security afforded by the Guarantee and Collateral Agreement or any other Loan Document. Neither the Collateral Agent nor the Disbursing Agent shall be responsible for insuring the Collateral or for the payment of Taxes, charges, assessments or liens upon the Collateral. Neither the Collateral Agent nor the Disbursing Agent shall be responsible for the maintenance of the Collateral, except as expressly provided in the immediately following sentence when the Collateral Agent has possession of the Collateral. Neither the Collateral Agent or the Disbursing Agent shall have any duty to LC Provider as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent or nominee of such Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may be in its possession substantially the same care as it accords similar assets held for the benefit of third parties and the duty to account for monies actually received by it. Neither the Collateral Agent nor the Disbursing Agent shall be under an obligation independently to request or examine insurance coverage with respect to any Collateral. Neither the Collateral Agent nor the Disbursing Agent shall be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of any Loan Party or any other party selected by such Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral, and neither such Agent shall be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, neither such Agent shall be responsible to LC Provider for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments. LC Provider shall be solely responsible for, and shall arrange for, the filing and continuation of financing statements or other filing or recording documents or instruments for the perfection of security interests in the Collateral. The Collateral Agent shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such financing statements.
(C) In connection with the exercise of any rights or remedies in respect of, or
foreclosure or realization upon, any Real Property related Collateral pursuant to this Agreement or any other Loan Document, the Collateral Agent shall not be obligated to take title to or possession of Real Property in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any Environmental Laws or otherwise cause the Collateral Agent to incur, or be exposed to, any Environmental Liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as the Collateral Agent subject to the terms and conditions of Section 8(b)(v) or to arrange for the transfer of the title or control of the asset to a court appointed receiver or an acquisition vehicle formed by the LC Provider. The Collateral Agent will not be liable to any Person for any Environmental Liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or Release or threatened Release of any Materials of Environmental Concern into the environment.
(D) In connection with any tax affidavit or similar instrument required to be filed or delivered by the Collateral Agent in connection with any Mortgage, the Collateral Agent shall complete such tax affidavit or similar instrument pursuant to the information provided to it in a certificate executed by a Responsible Officer of the Company. The Collateral Agent shall be entitled to conclusively rely on the information provided to it in such certificate and shall not be liable to the Loan Parties, LC Provider or any other Person for its acting in reliance thereon. The Company shall indemnify the Collateral Agent for any losses the Collateral Agent may incur as a result of its reliance on such certificate of the Company, including without limitation, any losses relating to any incorrect or misleading information provided in any tax affidavit based upon information contained in the certificate of the Company.
(E) Anything contained in any of the Loan Documents to the contrary notwithstanding, the Company, the Disbursing Agent, the Collateral Agent and LC Provider hereby agree that (i) in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other Disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or LC Provider, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) 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 shall be entitled (either directly or through one or more acquisition vehicles), upon instructions from LC Provider, 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 sale or Disposition, to use and apply any or all of the Reimbursement Obligations (other than Reimbursement Obligations owing to any Agent) as a credit on account of the purchase price for any collateral payable by the Collateral Agent (or such acquisition vehicle) at such sale or other Disposition.
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents (whether arising in contract, tort or otherwise) to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York sitting in the County of New York, the courts of the United States for the Southern District of New York sitting in the County of New York, and appellate courts from any thereof; (b) agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York state court or, to the fullest extent permitted by applicable Requirements of Law, in such federal court; (c) 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
and that nothing in this Agreement or any other Loan Document shall affect any right that Disbursing Agent, Calculation Agent or LC Provider may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against it or any of its assets in the courts of any jurisdiction; (d) waives, to the fullest extent permitted by applicable Requirements of Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in clause (a) above (and irrevocably waives to the fullest extent permitted by applicable Requirements of Law the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court); (e) consents to service of process in the manner provided in Section 13 (and agrees that nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable Requirements of Law); and (f) agrees that service of process as provided in Section 13 is sufficient to confer personal jurisdiction over the applicable party in any such proceeding in any such court, and otherwise constitutes effective and binding service in every respect.
(b) Electronic Communications.
(i) Notices and other communications to the LC Provider hereunder may be delivered or furnished by electronic communication (including email and internet or intranet websites) pursuant to procedures approved by the Agents and the LC Provider. The Agents, the LC Provider or the Company 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
(ii) Unless the Disbursing Agent, the Collateral Agent, the Calculation Agent or the LC Provider otherwise prescribe, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email 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 email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, in the case of each of the foregoing clauses (i) and (ii), if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
20. Disbursing Agent. Disbursing Agent shall be afforded all of the rights, protections, immunities and indemnities afforded to it under the Amended Credit Agreement as if set forth fully herein. Neither Disbursing Agent nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of Company, LC Provider, Calculation Agent, or any of their directors, members, officers, agents, affiliates or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. Disbursing Agent may assume performance by all such Persons of their respective obligations. Disbursing Agent shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other Person.
21. Effect of Amendment and Restatement. From and after the date of this Agreement: (a) the terms and conditions of the Original Reimbursement Agreement shall be amended as set forth
herein and, as so amended, shall be restated in their entirety, but only with respect to the rights, duties and obligations among the Company, LC Provider, Disbursing Agent and Calculation Agent accruing from and after the date hereof; (b) this Agreement shall not in any way release or impair the rights, duties, Reimbursement Obligations, guarantees or Liens created pursuant to the Original Reimbursement Agreement or any other Loan Document, in each case to the extent in force and effect thereunder as of the date hereof and except as superseded or otherwise modified hereby or by documents, instruments and agreements executed and delivered in connection herewith; (c) all indemnification obligations of the Company under the Original Reimbursement Agreement that by their terms are to survive the termination thereof shall survive the execution and delivery of this Agreement and shall continue in full force and effect for the benefit of LC Provider, Disbursing Agent, Calculation Agent and any other Person indemnified under the Original Reimbursement Agreement at any time prior to the date hereof pursuant to and for so long as such provisions so provide; (d) the Reimbursement Obligations incurred under the Original Reimbursement Agreement shall, to the extent outstanding on the date hereof, continue outstanding under this Agreement and shall not be deemed to be paid, released, discharged or otherwise satisfied by the execution of this Agreement, and this Agreement shall not constitute a refinancing, substitution or novation of such Reimbursement Obligations or any of the other rights, duties and obligations of the parties hereunder or under the Original Reimbursement Agreement, and the term “Reimbursement Obligations” shall include the Reimbursement Obligations as amended and restated under this Agreement; (e) the execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of the Company, LC Provider, Disbursing Agent or Calculation Agent under the Original Reimbursement Agreement, nor constitute a waiver of any covenant, agreement or obligation under the Original Reimbursement Agreement, except to the extent that any such covenant, agreement or obligation is no longer set forth herein or is modified hereby; (f) any and all references to the “Reimbursement Agreement” in any Loan Document shall, without further action of the parties, be deemed a reference to the Original Reimbursement Agreement, as amended and restated by this Agreement, and as this Agreement shall be further amended, restated, supplemented or otherwise modified from time to time; and (g) the Liens granted by each of the Loan Parties pursuant to the Loan Documents shall continue without any diminution thereof and shall remain in full force and effect on and after the date hereof.
[End of text; signature pages to follow]
Xxxxxxx X. Xxxxxx
Vice President, Finance, Chief Financial Officer, Treasurer and Corporate SecretaryIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.
COMPANY:
By: Name:
Title:
LC PROVIDER:
CO FINANCE LVS VI LLC
By: Name: Xxxxxxxxxxx Xxxxxxxx
Title: Authorized Person
SM
DISBURSING AGENT:
U.S. BANK NATIONAL ASSOCIATION, solely in
its capacity as Disbursing Agent and not in its individual capacity
By: Name: Xxxxxxx Xxxxxx-Xxxx
Title: Vice President
CALCULATION AGENT:
ALTER DOMUS (US) LLC, solely in its capacity as Calculation Agent and not in its individual capacity
By: Lk1l«J--
: Maithew Tryhu1a
Associate Counsel
Address for Notices:
Alter Domus (US) LLC
000 X. Xxxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxx, xxxxxxxx 00000
Attention: Legal Department and Xxxx Xxxxxxxxx Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000
Email: xxxx.xxxxxxxxx@xxxxxxxxxx.xxx and xxxxx@xxxxxxxxxx.xxx)
With a copy (which does not constitute notice) to: Xxxxxx & Xxxxxx LLP
One Battery Park Plaza
New York, New York 10004 Attention: Xxxxx Xxxxxxx Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000 Email: xxxxxxx@xxxxxx.xxx
SIGNATIJRE PAGE TO AMENDED ANDRESTATED REIMBURSEMENT AGREEMENT
Annex B-64
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Exhibit B
Amendment No. 5 to Intercreditor Agreement
[attached]
Annex B-65
\\LA - 765212/000003 - 2075087 v5
Execution Version
AmericasActive:18517422.5
AMENDMENT NO. 5 TO
INTERCREDITOR AGREEMENT
THIS AMENDMENT NO. 5 TO INTERCREDITOR AGREEMENT (this “Amendment”), dated as of May 22, 2023 is made between Siena Lending Group LLC, in its capacity as the lender under the Revolving Credit Agreement (in such capacity and together with any successor thereto, the “Revolving Lender”), and U.S. Bank National Association, in its capacity as the collateral agent for the Term Loan Lenders under the Term Loan Agreement and the Reimbursement Agreement (in such capacity and together with any successor collateral agent, the “Term Loan Agent”).
R E C I T A L S:
WHEREAS, JAC Operations, Inc., a Delaware corporation (“JAC”), Freight Car Services, Inc., a Delaware corporation (“Freight”), JAIX Leasing Company, a Delaware corporation (“JAIX”), FreightCar Short Line, Inc., a Delaware corporation (“Short”), Johnstown America, LLC, a Delaware limited liability company (“Johnstown”), FreightCar Alabama, LLC, a Delaware limited liability company (“Alabama”), FreightCar Rail Services, LLC, a Delaware limited liability company (“Rail”), FreightCar Rail Management Services, LLC, a Delaware limited liability company (“Management”), FCA-Fasemex, LLC, a Delaware limited liability company (“FCA”), FreightCar North America, LLC, a Delaware limited liability company (“FCNA” and together with JAC, Freight, JAIX, Short, Johnstown, Alabama, Rail, Management, FCA and any other Person who from time to time becomes a Borrower thereunder, collectively, the “Borrowers” and each individually, a “Borrower”), FreightCar America Inc., a Delaware corporation (“Parent”), the other Guarantors (as defined therein) party thereto from time to time, and the Revolving Lender are parties to that certain Xxxxxxx and Restated Loan and Security Agreement, dated as July 30, 2021 (as it may be amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement, including any agreement governing indebtedness incurred to refinance, replace, extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or issued in exchange or replacement for, the indebtedness and other obligations thereunder, the “Revolving Credit Agreement”), pursuant to which the Revolving Lender has agreed to make loans and extend other financial accommodations to the Borrowers;
WHEREAS, FCNA, Parent, the Term Loan Agent, U.S. Bank National Association, as disbursing agent (the “Term Loan Disbursing Agent”), CO FINANCE LVS VI LLC, as letter of credit provider (“LC Provider”) and the Term Loan Lenders are parties to that certain Credit Agreement, dated as of October 13, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement, including any agreement governing indebtedness incurred to refinance, replace, extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or issued in exchange or replacement for, the indebtedness and other obligations thereunder, the “Term Loan Agreement”), pursuant to which the Term Loan Lenders have agreed to make loans and extend other financial accommodations to FCNA, and the LC Provider has agreed to make available to Parent a standby letter of credit (the “Standby Letter of Credit”);
WHEREAS, LC Provider, Disbursing Agent, Collateral Agent, Alter Domus (US) LLC, as calculation agent (the “Calculation Agent”), and Parent are parties to that certain Amended and Restated Reimbursement Agreement, dated as of December 30, 2021 (as
amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms the Intercreditor Agreement, the “Reimbursement Agreement”), pursuant to which Parent has agreed to pay certain fees in connection with, and reimburse LC Provider for any draws under, the Standby Letter of Credit;
WHEREAS, the Revolving Lender and the Term Loan Agent have entered into that certain Intercreditor Agreement, dated as of November 24, 2020 (as amended pursuant to that certain Amendment No. 1 to Intercreditor Agreement dated as of May 14, 2021, that certain Amendment No. 2 to Intercreditor Agreement dated as of July 30, 2021, that certain Amendment No. 3 to Intercreditor Agreement dated as of December 30, 2021, Amendment No. 4 to Intercreditor Agreement dated as of February 17, 2022, this Amendment and as it may be further amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”);
WHEREAS, on March 23, 2023, Parent and certain funds affiliated with LC Provider entered into a securities purchase agreement pursuant to which purchasers thereunder agreed to purchase newly-issued preferred securities of the Company, the proceeds of which will be used to pay in full in cash all of the outstanding Term Loan Obligations under the Term Loan Agreement other than obligations in connection with the Standby Letter of Credit (the “Conversion Transaction”);
WHEREAS, in connection with the Conversion Transaction, the Term Loan Agreement will be terminated, and the Reimbursement Agreement will be amended to reflect the obligations of the Company in respect of the Standby Letter of Credit;
WHEREAS, FCNA, Parent, the other Guarantors (as defined therein), LC Provider, the Term Loan Disbursing Agent and the Term Loan Agent have entered into that certain Amendment No. 1 to Guarantee and Collateral Agreement, dated as of the date hereof (the “Amendment to Guarantee and Collateral Agreement”);
WHEREAS, Parent, the Subsidiary Guarantors (as defined therein), LC Provider, the Term Loan Disbursing Agent and the Term Loan Agent, have entered into that certain Amendment No. 2 to Amended and Restated Reimbursement Agreement, dated as of the date hereof (the “Amendment to Reimbursement Agreement”); and
WHEREAS, the Revolving Lender and Term Loan Agent desire to amend the Intercreditor Agreement as more fully described herein.
.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Capitalized Terms. All capitalized undefined terms used in this Amendment (including without limitation, in the Recitals hereto) shall have the meanings assigned thereto in the Intercreditor Agreement, as hereby amended.
SECTION 2. Amendments to Intercreditor Agreement.
On and as of the Fifth Amendment Effective Date, the Intercreditor Agreement is amended by (i) deleting the stricken text (indicated textually in the same manner as the following example: stricken text) and (ii) inserting the underlined text (indicated textually in the same manner as
the following example: inserted text), in each case set forth on Exhibit A hereto.
SECTION 3. Effectiveness. This Amendment shall become effective on the date upon which each of the following conditions is satisfied (such date, the “Fifth Amendment Effective Date”):
3.1 This Amendment. The Revolving Lender and Term Loan Agent shall have received a copy of this Amendment duly executed and delivered by the Revolving Lender, Term Loan Agent, Parent and each Subsidiary Guarantor, in form and content acceptable to the Revolving Lender and Term Loan Agent.
3.2 Amendment to Guarantee and Collateral Agreement. The Revolving Lender and Term Loan Agent shall have received a duly executed and delivered Amendment to Guarantee and Collateral Agreement, in form and content acceptable to the Revolving Lender and Term Loan Agent.
3.3 Amendment to Reimbursement Agreement. The Revolving Lender and Term Loan Agent shall have received a duly executed and delivered Amendment to Reimbursement Agreement, in form and content acceptable to the Revolving Lender and Term Loan Agent.
SECTION 4. Limited Effect. Except as expressly provided herein, the Intercreditor Agreement shall remain unmodified and in full force and effect. This Amendment shall not be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Intercreditor Agreement (except as expressly provided herein), (b) to prejudice any right or rights the Revolving Lender or Term Loan Agent may now have or may have in the future under or in connection with the Intercreditor Agreement, or (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with Parent or any other Person with respect to any waiver, amendment, modification or any other change to the Intercreditor Agreement or any rights or remedies arising in favor of Revolving Lender or Term Loan Agent thereunder.
SECTION 5. Representations and Warranties. Each of the Revolving Lender and the Term Loan Agent hereby represents and warrants that it is duly authorized to execute and deliver this Amendment.
SECTION 6. Costs and Expenses. Parent agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by Revolving Lender and Term Loan Agent in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable and documented fees, charges and disbursements of counsel for Revolving Lender and Term Loan Agent with respect thereto and with respect to advising the Revolving Lender and Term Loan Agent as to its rights and responsibilities hereunder and thereunder.
SECTION 7. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. In proving this Amendment in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any
signatures delivered by a party hereto by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.
SECTION 8. Governing Law. THIS AMENDMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AMENDMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW.
SECTION 9. Entire Agreement; Section Heading; Severability. This Amendment is the entire agreement, and supersedes any prior agreements and contemporaneous oral agreements, of the parties concerning its subject matter. The Section headings used in this Amendment are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10. Successors and Assigns. This Amendment shall be binding on and inure to the benefit of the parties and their respective heirs, beneficiaries, successors and permitted assigns.
SECTION 11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
SECTION 12. Consent. Notwithstanding anything to the contrary set forth in the Intercreditor Agreement, and for the avoidance of doubt, the Revolving Lender hereby consents to the delivery and execution of the Amendment to Reimbursement Agreement and the Amendment to Guarantee and Collateral Agreement. The foregoing consent is a limited
consent and shall not be deemed to constitute consent with respect to any other current or future departure from the requirements of any provision of the Term Loan Documents or the Intercreditor Agreement. Except to the extent expressly set forth herein, the foregoing consent shall not constitute a modification or alteration of the terms, conditions or covenants of the Intercreditor Agreement.
SECTION 13. Term Loan Agent’s Rights. Term Loan Agent has executed this Amendment as directed under and in accordance with the Term Loan Documents, and will perform this Amendment solely in its capacity as Term Loan Agent and not individually. The Term Loan Agent shall be entitled to the same rights, protections, immunities and indemnities hereunder as are set forth in the Term Loan Documents, as if the provisions setting forth those rights, protections, immunities and indemnities were fully set forth herein.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers, all as of the day and year first written above.
REVOLVING LENDER:
SIENA LENDING GROUP LLC, as Revolving Lender
By: ____________________________
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
By: ____________________________
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory
TERM LOAN AGENT:
U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Term Loan Agent and not in its individual capacity
By: ___________________________
Name: Xxxxxxx Xxxxxx-Xxxx
Title: Vice President
ACKNOWLEDGEMENT
Each of the undersigned Loan Parties hereby (i) acknowledges that it has received a copy of the foregoing Amendment No. 5 to Intercreditor Agreement (“Amendment No. 5”), (ii) agrees to the terms of the Intercreditor Agreement (as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4 and Amendment No. 5) applicable to any of the Loan Parties, and (iii) has caused this Acknowledgement to be executed by a duly authorized officer or representative of such Loan Party as of the date of Amendment No. 5.
LOAN PARTIES:
FREIGHTCAR AMERICA, INC.
By: ________________________________
Name:
Title:
FREIGHTCAR NORTH AMERICA, LLC
By: _______________________________
Name:
Title:
JAC OPERATIONS, INC.
By: _______________________________
Name:
Title:
FREIGHT CAR SERVICES, INC.
By: ______________________________
Name:
Title:
JAIX LEASING COMPANY
By: _______________________________
Name:
Title:
FREIGHTCAR SHORT LINE, INC.
By: _______________________________
Name:
Title:
JOHNSTOWN AMERICA, LLC
By: _______________________________
Name:
Title:
FREIGHTCAR ALABAMA, LLC
By: _______________________________
Name:
Title:
FREIGHTCAR RAIL SERVICES, LLC
By: _______________________________
Name:
Title:
FREIGHTCAR RAIL MANAGEMENT SERVICES, LLC
By: _______________________________
Name:
Title:
FCA-FASEMEX, LLC
By: _______________________________
Name:
Title:
FCA-FASEMEX, S. DE X.X., DE C.V.
By: _______________________________
Name:
Title:
FCA-FASEMEX ENTERPRISE, S. DE X.X., DE C.V.
By: ______________________________
Name:
Title:
Exhibit A
Exhibit A
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of November 24, 2020 by and among SIENA LENDING GROUP LLC, in its capacity as the lender under the Revolving Credit Agreement (as defined herein) (in such capacity and together with any successor thereto, the “Revolving Lender”), and U.S. BANK NATIONAL ASSOCIATION, in its capacity as the collateral agent for the Term Loan Lenders and LC Provider (as defined herein) under the Term Loan Agreement (as defined herein), and, after the Fifth Amendment Effective Date, the Reimbursement Agreement (as defined herein) (in such capacity and together with any successor collateral agent, the “Term Loan Agent” and, together with the Revolving Lender, collectively the “Secured Parties”), and acknowledged by the Borrowers and the other Loan Parties.
Recitals
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the existence and sufficiency of which are expressly recognized by all of the parties hereto, the parties agree as follows.
Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in Appendix I hereto. In the absence of such definitions, any other capitalized terms used and not otherwise defined herein will have the meanings (a) ascribed thereto by the Uniform Commercial Code to the extent the same are defined therein, (b) if such term refers to the Revolving Lender, the Revolving Claimholders, or the Revolving Loan Documents, as ascribed thereto in the Revolving Loan Documents as in effect on the date hereof, and (c) if such term refers to the Term Loan Agent, the Term Loan Claimholders, or the Term Loan Documents, as ascribed thereto in the Term Loan Documents as in effect on the date hereofFifth Amendment Effective Date. The term “including” wherever used in this Agreement shall be deemed to mean “including, without limitation.”
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(iii) any Liens thereon securing any Term Loan Excess Obligations shall be third in priority, subordinate to the Liens thereon securing the Secured Obligations in clauses (b)(i) and (b)(ii) above but prior to any Liens thereon securing any other Secured Obligations; and
The priorities of the Liens provided in this Section 2.1 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement, replacement, refunding or refinancing of the Revolving Loan Documents or the Revolving Obligations or the Term Loan Documents or the Term Loan Obligations, nor by any action or inaction which the Revolving Lender or any other Revolving Claimholder or the Term Loan Agent or any other Term Loan Claimholder may take or fail to take in respect of any of the Collateral. The Revolving Lender, for itself and on behalf of each other Revolving Claimholder, agrees that no Revolving Claimholder shall, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any Liens on any of the Term Loan Priority Collateral or the other Collateral (to the extent permitted under Section 2.2(b)) granted to the Term Loan Agent to secure the Term Loan Obligations. The Term Loan Agent, for itself and on behalf of each other Term Loan Lender, acknowledges and agrees that the Revolving Obligations represent indebtedness that is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed in accordance with terms of the Revolving Loan Documents. The Term Loan Agent, for itself and on behalf of each other Term Loan Claimholder, agrees that no Term Loan Claimholder shall, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any Liens on any of the Revolving Credit Priority Collateral or the other Collateral (to the extent permitted under Section 2.2(a)) granted to the Revolving Lender to secure the Revolving Obligations or any assignment of any other rights in favor of the Revolving Lender pursuant to the Assignment of Claims Act. Notwithstanding any failure by either the Revolving Lender, on the one hand, or the Term Loan Agent, on the other hand, to perfect its Lien on any of the Collateral or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of any of the Liens on the Collateral granted to the Revolving Lender or the Term Loan Agent, the priority and rights as between the Liens of the Revolving Lender, on the one hand, and the Liens of the Term Loan Agent, on the other hand, shall be as set forth herein.
In the event that any Term Loan Claimholder becomes a judgment lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes to the same extent as all other Liens securing the Term Loan Obligations are subject to the terms of this Agreement. In the event that any Revolving Claimholder becomes a judgment lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes to the same extent as all other Liens securing the Revolving Obligations are subject to the terms of this Agreement.
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to secure any Revolving Obligations which assets are not also subject to the Lien of the Term Loan Agent under the Term Loan Documents, and (ii) each Loan Party agrees not to grant any Lien on any of its assets, or permit any of its Subsidiaries to xxxxx x Xxxx on any of its assets, in favor of the Revolving Lender or the other Revolving Claimholders unless it, or such Subsidiary, has granted a similar Lien on such assets in favor of the Term Loan Agent under the Term Loan Documents. If any Revolving Claimholder shall nonetheless acquire any Lien on any assets that constitute Term Loan Priority Collateral of any Loan Party (or any of its subsidiaries) to secure the Revolving Obligations, which assets are not also subject to a Lien in favor of the Term Loan Agent to secure the Term Loan Obligations, then such Revolving Claimholder shall, without the need for any further consent of any other Person and notwithstanding anything to the contrary in any Revolving Loan Document, also hold and be deemed to have held such Lien as a gratuitous bailee for the benefit of the Term Loan Agent as security for the Term Loan Obligations subject to the priorities set forth herein, with any amounts received in respect thereof subject to distribution and turnover hereunder to the extent otherwise required hereunder (subject to the priorities set forth herein).