Revolving Credit, Term Loan and Security Agreement dated as of May 26, among Continental Commercial Products, LLC, a limited liability company formed under the laws of the State of Delaware (“Continental”), Glit/Gemtex, Ltd., a corporation organized under the laws of the Province of Ontario (“Glit/Gemtex”) (Continental, Glit/Gemtex and each Person joined hereto as a borrower from. KATY fosters internal growth through a focus on low-cost production and through an aggressive marketing and product development program. The company owns the following subsidiaries: Woods Canada, Contico, Continental Manufacturing, Gilt/Microtron/Loren, Disco, Gemtex, Wilen and Contico Manufacturing Limited. KATY Industries is traded on the New. Several years before the creation of Katy Industries, MKT was on the verge of bankruptcy. The "Katy," as the railroad is nicknamed, included miles of damaged roadbed from Missouri to Texas on which derailments were likely to occur if the cars were moving faster than 25 miles per hour.
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Barriger continued his presidency only long enough to get the Katy in a strong operating position. Katy Industries quickly began to diversify after the acquisition of the MKT. By , the company was expanding into European and Canadian markets, particularly within the oil and gas exploration fields. One of the most important acquisitions for Katy Industries in the late s was that of Bee Gee Shrimp, a collection of companies that operated a trawler fleet off the coast of Georgetown, Guyana, that harvested and sold shrimp.
Bee Gee Shrimp was primarily responsible for doubling the sales and earnings of Katy's Consumer Products Group in , and this allowed Katy a degree of comfort during the recession years. Even the MKT was showing a profit for the first time since However, the profits were put back into the railroad, particularly in the area of track maintenance, which was a high 16 percent of operating costs that year.
By , another man with a reputation of being able to tackle tough jobs was at the Katy. Reginald Whitman became president and chairman of MKT in and is credited with keeping the company headed in a profitable direction.
Whitman's confidence that the Katy would not only be profitable but that it would also grow was an important aspect of the future earnings of the company. The company did not have to write off the railroad's losses against its consolidated earnings. In addition, Katy no longer had to carry the railroad's large debt on its balance sheet. For Katy, the railroad provided a shelter that was important to its acquisitions. Most of the companies were small and privately owned.
Once they were put behind the tax shelter of the railroad, their profits increased significantly. By this time, Katy was considered to be a diversified investment fund, which was different from others of its kind because it usually owned a majority, if not percent, of its affiliate's stock. Murphy, Treasurer of Katy, regarded this policy as one which allowed a "uniformity of overall corporate policy as well as the exchange of technology, marketing, purchasing, and financial assistance" within the companies.
Katy's formula for acquiring companies did not change significantly over the years. Carroll continued to purchase small companies that had good product lines and presented small risks. As Carroll stated, "If it is profitable or we could make it profitable, we buy it.
In addition, Katy offered incentives to its subsidiaries, which were based on earning increases as a means of keeping the companies productive and efficient. This formula was a successful one for Katy. Katy managed to increase sales throughout the recession years of the early s. In fact, its earnings were so good that Katy expanded its pump manufacturing company, LaBour Pump, which was located in Ireland. In , Katy began to expand into the silverware business.
Carroll first purchased Wallace Silversmith Inc. These new acquisitions and investments in the early s represented some of Katy's efforts to offset the uneven earnings of the company's railroad and machinery operations. By , plans were in the air to sell MKT. Union Pacific had made an offer that required MKT to obtain 60 percent of the outstanding income certificates on the company.
MKT had only purchased 41 percent by mid Union Pacific then terminated the offer. Chairman Carroll's comment on this turn of events in early was that Katy would "keep on running the railroad; it's a good property. Katy needed to increase its earnings for The company had some significant losses, which were blamed on the casualty and property insurance business, Midland Insurance.
Midland's problems were caused by difficulties in the market. In other areas, however, Katy was experiencing new developments. It had taken the company six years to win a contract since the start of the business in , and the subsidiary was expected to see some profits in At the time, Carroll saw the waste-to-energy plants as the "future direction" of Katy Industries and expected that there will be great demand, and competition, for these plants because of the increased environmental concerns of the nation.
Specifically, state and local governments were considering this form of incineration, and if the trend continued in this area, Katy expected to be in the midst of the development of these plants. During the late s and into the s, however, the direction of Katy Industries would change dramatically. Under new leadership, Katy began its transformation, which was marked by takeover threats, restructuring, and divestiture.
Katy also divested its seafood business, and by its main business segments included industrial machinery and components, consumer products, and energy resources. As Katy streamlined its operations, it became attractive as a takeover target. In fact, the Carroll family, which owned approximately 52 percent of the firm in the early s, launched an effort to take the company private.
Certain shareholders believed the offer undervalued Katy, and a takeover war began. By , potential suitors included Rosecliff Inc. During this time, Katy elected a new management team. John Prann was named president while Philip Johnson became chairman. Saliba was named chairman again in when Johnson left the firm.
The company also moved headquarters to Englewood, Colorado. The plan worked, and Katy was left to focus on a new restructuring effort that left consumer products, electronics testing equipment, food packaging machinery, and specialty metals as its core business units.
The firm continued to sell off unrelated subsidiaries including Panhandle Industrial Co. During and early , Katy made five acquisitions that included Contico International Inc. By this time, Katy had also divested six companies and its machinery division.
As Katy prepared to enter the new century, it adopted yet another focus--maintenance supplies and electrical and electronic products. Such fee shall be payable to Agent in arrears on the first day of each calendar quarter with respect to the previous calendar quarter. The collateral monitoring fee shall be deemed earned in full on the date when same is due and payable hereunder and shall not be subject to rebate or proration upon termination of this Agreement for any reason.
All other fees, interest and all other amounts chargeable under this Agreement or the Other Documents shall be computed on a basis of a year of days and for the actual number of days elapsed. If any payment to be made hereunder becomes due and payable on a day other than a Business Day, the due date thereof shall be extended to the next succeeding Business Day and interest thereon shall be payable at the Revolving Interest Rate for Domestic Rate Loans during such extension.
In no event whatsoever shall interest and other charges charged hereunder exceed the highest rate permissible under law. In the event interest and other charges as computed hereunder would otherwise exceed the highest rate permitted under law, such excess amount shall be first applied to any unpaid principal balance owed by Borrowers, and if the then remaining excess amount is greater than the previously unpaid principal balance, Lenders shall promptly refund such excess amount to Borrowers and the provisions hereof shall be deemed amended to provide for such permissible rate.
In the event that any Applicable Law, or any change therein or in the interpretation or application thereof, or compliance by any Lender for purposes of this Section 3. Agent or such Lender shall certify the amount of such additional cost or reduced amount to Borrowing Agent, and such certification shall be conclusive absent manifest error.
In the event that Agent or any Lender shall have determined that:. If such notice is given, i any such requested Eurodollar Rate Loan shall be made as a Domestic Rate Loan, unless Borrowing Agent shall notify Agent no later than a. New York City time two 2 Business Days prior to the date of such proposed borrowing, that its request for such borrowing shall be cancelled or made as an unaffected type of Eurodollar Rate Loan, ii any Domestic Rate Loan or Eurodollar Rate Loan which was to have been converted to an affected type of Eurodollar Rate Loan shall be continued as or converted into a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later than a.
New York City time two 2 Business Days prior to the proposed conversion, shall be maintained as an unaffected type of Eurodollar Rate Loan, and iii any outstanding affected Eurodollar Rate Loans shall be converted into a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later than a. Until such notice has been withdrawn, Lenders shall have no obligation to make an affected type of Eurodollar Rate Loan or maintain outstanding affected Eurodollar Rate Loans and no Borrower shall have the right to convert a Domestic Rate Loan or an unaffected type of Eurodollar Rate Loan into an affected type of Eurodollar Rate Loan.
In determining such amount or amounts, Agent or such Lender may use any reasonable averaging or attribution methods. The protection of this Section 3. Notwithstanding the foregoing, no Borrower shall be obligated to make any portion of the Gross-Up Payment that is attributable to any withholding or deductions that would not have been paid or claimed had the applicable Payee or Payees properly claimed a complete exemption with respect thereto pursuant to Section 3.
Each Payee which so delivers a valid Withholding Certificate further undertakes to deliver to Borrowing Agent and Agent two 2 additional copies of such Withholding Certificate or a successor form on or before the date that such Withholding Certificate expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent Withholding Certificate so delivered by it, and such amendments thereto or extensions or renewals thereof as may be reasonably requested by Borrowing Agent or Agent.
In the event that there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given and the date of receipt by the Agent of the amount due, Borrowers or Guarantor will, on the date of receipt by the Agent, pay such additional amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Agent on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of receipt by the Agent is the amount then due under this Agreement or such Other Document in the Currency Due.
If the amount of the Currency Due which the Agent is so able to purchase is less than the amount of the Currency Due originally due to it, each Borrower and Guarantor shall indemnify and save the Agent and the Lenders harmless from and against all loss or damage arising as a result of such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the Other Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any Other Document or under any judgment or order.
Each Lender and, for purposes of this Section 3. To secure the prompt payment and performance to Agent and each Lender of the Obligations, each Borrower hereby assigns, pledges and grants to Agent for its benefit and for the ratable benefit of each Lender a continuing security interest in and to and Lien on all of its Collateral, whether now owned or existing or hereafter acquired or arising and wheresoever located. Each Borrower shall promptly provide Agent with written notice of all commercial tort claims, such notice to contain the case title together with the applicable court and a brief description of the claim s.
Upon delivery of each such notice, such Borrower shall be deemed to hereby grant to Agent a security interest and lien in and to such commercial tort claims and all proceeds thereof.
By its signature hereto, each Borrower hereby authorizes Agent to file against such Borrower, one or more financing, continuation or amendment statements pursuant to the Uniform Commercial Code and the PPSA, in each case in form and substance satisfactory to Agent which statements may have a description of collateral which is broader than that set forth herein.
In addition to the rights and remedies set forth in Section If Agent exercises this right to take possession of the Collateral, Borrowers shall, upon demand, assemble it in the best manner possible and make it available to Agent at a place reasonably convenient to Agent. In addition, with respect to all Collateral, Agent and Lenders shall be entitled to all of the rights and remedies set forth herein and further provided by the Uniform Commercial Code, PPSA or other Applicable Law, as applicable.
Each Borrower shall a keep proper books of record and account in which each entry each of which shall be full, true and correct in all material respects will be made of all dealings or transactions of or in relation to its business and affairs; b set up on its books accruals with respect to all taxes, assessments, charges, levies and claims; and c on a reasonably current basis set up on its books, from its earnings, allowances against doubtful Receivables, advances and investments and all other proper accruals including by reason of enumeration, accruals for premiums, if any, due on required payments and accruals for depreciation, obsolescence, or amortization of properties , which should be set aside from such earnings in connection with its business.
All determinations pursuant to this subsection shall be made in accordance with, or as required by, GAAP consistently applied in the opinion of such independent public accountant as shall then be regularly engaged by Borrowers.
Each Borrower hereby authorizes all Governmental Bodies to furnish to Agent and each Lender copies of reports or examinations relating to such Borrower, whether made by such Borrower or otherwise; however, Agent and each Lender will attempt to obtain such information or materials directly from such Borrower prior to obtaining such information or materials from such accountants or Governmental Bodies, and, to the extent such information or material is known by Lenders and Agent to be, and is in fact, confidential in nature, Agent and each Lender shall use reasonable efforts to maintain the confidentiality thereof, in accordance with their customary procedures.
The assets and properties of each Borrower at all times shall be maintained in accordance with the requirements of all insurance carriers which provide insurance with respect to the assets and properties of such Borrower so that such insurance shall remain in full force and effect.
Each Borrower shall bear the full risk of any loss of any nature whatsoever with respect to the Collateral. In the event of any loss thereunder, the carriers named therein hereby are directed by Agent and the applicable Borrower to make payment for such loss to Agent and not to such Borrower and Agent jointly. Agent is hereby authorized to adjust and compromise claims under insurance coverage referred to in clauses a and c above.
All loss recoveries received by Agent upon any such insurance may be applied to the Obligations, in such order as Agent in its sole discretion shall determine. Any surplus shall be paid by Agent to Borrowers or applied as may be otherwise required by law.
Any deficiency thereon shall be paid by Borrowers to Agent, on demand. The agreement of Agent to remit insurance proceeds in the manner above provided shall be subject in each instance to satisfaction of each of the following conditions: x No Event of Default or Default shall then have occurred, and y Borrowers shall use such insurance proceeds to repair, replace or restore the insurable property which was the subject of the insurable loss and for no other purpose. Each Borrower will pay, when due, all taxes, assessments and other Charges lawfully levied or assessed upon such Borrower or any of the Collateral including real and personal property taxes, assessments and charges and all franchise, income, employment, social security benefits, withholding, and sales taxes, other than to the extent Properly Contested.
Agent will not pay any taxes, assessments or Charges to the extent that any applicable Borrower has Properly Contested those taxes, assessments or Charges.
The amount of any payment by Agent under this Section 4. Each of the Eligible Receivables shall be a bona fide and valid account representing a bona fide indebtedness incurred by the Customer therein named, for a fixed sum as set forth in the invoice relating thereto provided immaterial or unintentional invoice errors shall not be deemed to be a breach hereof with respect to an absolute sale or lease and delivery of goods upon stated terms of a Borrower, or work, labor or services theretofore rendered by a Borrower as of the date each Receivable is created.
Borrowers shall instruct their Customers to deliver all remittances upon Receivables to such lockbox account, Blocked Account or Depository Account as Agent shall designate from time to time as contemplated by Section 4.
Each Borrower shall deposit in the Blocked Account or, upon request by Agent, deliver to Agent, in original form and on the date of receipt thereof, all checks, drafts, notes, money orders, acceptances, cash and other evidences of Indebtedness.
At any time after the occurrence and during the continuance of an Event of Default, Agent shall have the sole right to collect the Receivables, take possession of the Collateral, or both. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission nor for any error of judgment or mistake of fact or of law, unless done maliciously or with gross not mere negligence or willful misconduct as determined by a court of competent jurisdiction in a final non-appealable judgment ; this power being coupled with an interest is irrevocable while any of the Obligations remain unpaid.
Agent shall have the right at any time following the occurrence of an Event of Default or Default to change the address for delivery of mail addressed to any Borrower. Each applicable Borrower, Agent and each Blocked Account Bank shall enter into a deposit account control agreement in form and substance satisfactory to Agent in its commercially reasonable judgment, directing such Blocked Account Bank to transfer such funds so deposited to Agent, either to any account maintained by Agent at said Blocked Account Bank or by wire transfer to appropriate account s of Agent.
All funds deposited in such Blocked Accounts shall immediately become the property of Agent and Borrowing Agent shall obtain the agreement by such Blocked Account Bank to waive any offset rights against the funds so deposited.
Neither Agent nor any Lender assumes any responsibility for such blocked account arrangement, including any claim of accord and satisfaction or release with respect to deposits accepted by any Blocked Account Bank thereunder. All deposit accounts and investment accounts of each Borrower and its Subsidiaries are set forth on Schedule 4.
To the extent Inventory held for sale or lease has been produced by any Borrower, it has been and will be produced by such Borrower in accordance with the Federal Fair Labor Standards Act of , as amended, and all rules, regulations and orders thereunder and any equivalent legislation under Canadian Applicable Laws. The Equipment shall be maintained in good operating condition and repair reasonable wear and tear excepted and all necessary replacements of and repairs thereto shall be made so that the value and operating efficiency of the Equipment shall be maintained and preserved in all material respects.
No Borrower shall use or operate the Equipment in violation of any law, statute, ordinance, code, rule or regulation. Each Borrower shall have the right to sell Equipment to the extent set forth in Section 4. Such system shall include periodic compliance audits of such system, and Borrowers shall conduct the first environmental compliance audit within six months after the Closing Date and deliver a copy to the Agent of the final environmental compliance audit report within ten 10 Business Days after receipt.
Such information is to be provided to allow Agent to protect its security interest in and Lien on the Real Property and the Collateral and is not intended to create nor shall it create any obligation upon Agent or any Lender with respect thereto. Borrowing Agent shall promptly forward to Agent copies of all documents and reports concerning a Hazardous Discharge or Environmental Complaint with respect to the business, operations or the Real Property that any Borrower is required to file under any Environmental Laws.
All reasonable costs and expenses incurred by Agent and Lenders or such third parties in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Domestic Rate Loans or for Canadian Revolving Loans, as applicable, constituting Revolving Advances shall be paid upon demand by Borrowers, and until paid shall be added to and become a part of the Obligations secured by the Liens created by the terms of this Agreement or any other agreement between Agent, any Lender and any Borrower.
Any report or investigation of such Hazardous Discharge proposed and acceptable to an appropriate Authority that is charged to oversee the clean-up of such Hazardous Discharge shall be acceptable to Agent.
Except as respects the financing statements filed by Agent and the financing statements described on Schedule 1. Absent the occurrence and continuance of an Event of Default at such time, Agent shall consult with Borrowers as to the identity of any such firm.
The security interest created hereby is intended to attach when this Agreement is executed by the Borrowers and delivered to Agent and the Lenders.
Each Borrower represents and warrants as follows:. Each Borrower has full power, authority and legal right to enter into this Agreement and the Other Documents and to perform all its respective Obligations hereunder and thereunder.
Each Borrower has delivered to Agent true and complete copies of its certificate of incorporation and by-laws or certificate of formation and operating agreement and will promptly notify Agent of any amendment or changes thereto. Schedule 5. Each Borrower has filed all federal, state, provincial and local tax returns and other reports each is required by law to file and has paid all taxes, assessments, fees and other governmental charges that are due and payable, other than those which are being Properly Contested.
Federal, state, provincial and local income tax returns of each Borrower have been examined and reported upon by the appropriate taxing authority or closed by applicable statute and satisfied for all fiscal years prior to and including the fiscal year ended December 31, The provision for taxes on the books of each Borrower is adequate for all years not closed by applicable statutes, and for its current fiscal year, and no Borrower has any knowledge of any deficiency or additional assessment in connection therewith not provided for on its books.
All financial statements referred to in this subsection 5. Since December 31, there has been no change in the condition, financial or otherwise, of Borrowers or their Subsidiaries as shown on the consolidated balance sheet as of such date and no change in the aggregate value of machinery, equipment and Real Property owned by Borrowers and their respective Subsidiaries, except changes in the Ordinary Course of Business, none of which individually or in the aggregate has been materially adverse.
No Borrower has been known by any other corporate or limited liability company name in the past five years and does not sell Inventory under any other name except as set forth on Schedule 5. All patents, patent applications, trademarks, trademark applications, service marks, service mark applications, copyrights, copyright applications, design rights, tradenames, assumed names, trade secrets and licenses owned or utilized by any Borrower are set forth on Schedule 5.
Each patent, patent application, patent license, trademark, trademark application, trademark license, service mark, service mark application, service mark license, design rights, copyright, copyright application and copyright license owned or held by any Borrower and all trade secrets used by any Borrower consist of original material or property developed by such Borrower or was lawfully acquired by such Borrower from the proper and lawful owner thereof.
Each of such items has been maintained so as to preserve the value thereof from the date of creation or acquisition thereof. With respect to all software used by any Borrower, such Borrower is in possession of all source and object codes related to each piece of software or is the beneficiary of a source code escrow agreement, each such source code escrow agreement being listed on Schedule 5. Except as set forth in Schedule 5. No Borrower is in default in the payment or performance of any of its material contractual obligations and no Default has occurred.
No Borrower is party to any contract or agreement the performance of which would be reasonably likely to have a Material Adverse Effect. Each Borrower has heretofore delivered to Agent true and complete copies of all material contracts to which it is a party or to which it or any of its properties is subject.
No Borrower has agreed or consented to cause or permit in the future upon the happening of a contingency or otherwise any of its property, whether now owned or hereafter acquired, to be subject to a Lien which is not a Permitted Encumbrance. No representation or warranty made by any Borrower in this Agreement or in any financial statement, report, certificate or any other document furnished in connection herewith contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements herein or therein not misleading in light of the circumstances in which they were made.
No provision of any mortgage, indenture, contract, agreement, judgment, decree or order binding on any Borrower or affecting the Collateral conflicts with, or requires any Consent which has not already been obtained to, or would in any way prevent the execution, delivery or performance of, the terms of this Agreement or the Other Documents.
Neither any Borrower nor any Affiliate of any Borrower is subject to any law, statute, rule or regulation which regulates the incurrence of any Indebtedness, including laws, statutes, rules or regulations relative to common or interstate carriers or to the sale of electricity, gas, steam, water, telephone, telegraph or other public utility services.
Upon and after the Closing Date, Borrowers do not propose to engage in any business other than manufacturing and distribution and activities necessary to conduct the foregoing. On the Closing Date, each Borrower will own all the property and possess all of the rights and Consents necessary for the conduct of the business of such Borrower. Borrowers do not intend to use and shall not use any portion of the proceeds of the Advances, directly or indirectly, to purchase during the underwriting period, or for 30 days thereafter, Ineligible Securities being underwritten by a Section 20 Subsidiary.
Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list, or. No Borrower has engaged, nor does it intend to engage, in any business or activity prohibited by the Trading with the Enemy Act. Neither any Borrower nor any of its Subsidiaries i is required to file periodic reports under the Exchange Act, ii has any securities registered under the Exchange Act or iii has filed a registration statement that has not yet become effective under the Securities Act.
The representation and warranty contained herein does not apply to Katy. The authorized and outstanding Equity Interests of each Borrower is as set forth on Schedule 5. All of the Equity Interests of each Borrower has been duly and validly authorized and issued and is fully paid and non-assessable and has been sold and delivered to the holders thereof in compliance with, or under valid exemption from, all federal and state laws and the rules and regulations of each Governmental Body governing the sale and delivery of securities.
Except for the rights and obligations set forth on Schedule 5. Except as set forth on Schedule 5. As of the Closing Date, no Borrower is a party to any commercial tort claims, except as set forth on Schedule 5. As of the Closing Date, no Borrower has any letter of credit rights, except as set forth on Schedule 5.
No Borrower currently contributes to or is obligated to contribute to, nor has ever contributed to or been obligated to contribute to, a Canadian Union Plan. Each Borrower shall, until payment in full of the Obligations and termination of this Agreement:. Pay to Agent on demand all usual and customary fees and expenses which Agent incurs in connection with a the forwarding of Advance proceeds to such Borrower and b the establishment and maintenance of any Blocked Accounts or Depository Accounts applicable to such Borrower as provided for in Section 4.
Promptly notify Agent in writing of any violation of any law, statute, regulation or ordinance of any Governmental Body, or of any agency thereof, applicable to any Borrower which could reasonably be expected to have a Material Adverse Effect. Cause Katy to maintain on a consolidated basis with its consolidated Subsidiaries EBITDA of not less than the following amounts for each of the following periods:. Measuring Period. Cause Katy to maintain on a consolidated basis with its consolidated Subsidiaries a Fixed Charge Coverage Ratio of not less than 1.
Execute and deliver to Agent from time to time, upon demand, such supplemental agreements, statements, assignments and transfers, or instructions or documents relating to the Collateral, and such other instruments as Agent may request, in order that the full intent of this Agreement may be carried into effect.
Pay, discharge or otherwise satisfy at or before maturity subject, where applicable, to specified grace periods and, in the case of the trade payables, to normal payment practices all its obligations and liabilities of whatever nature, except when the failure to do so could not reasonably be expected to have a Material Adverse Effect or when the amount or validity thereof is currently being Properly Contested, subject at all times to any applicable subordination arrangement in favor of Lenders.
Cause all financial statements referred to in Sections 9. Promptly notify Agent in writing if any Borrower or any of its Subsidiaries i is required to file periodic reports under the Exchange Act, ii registers any securities under the Exchange Act or iii files a registration statement under the Securities Act.
The covenant contained herein does not apply to Katy. Borrowers shall take all necessary steps to winddown and close as soon as practicable after the Closing Date, and in any event no later than 90 days after the Closing Date, those certain bank accounts, account numbers and , maintained by Continental with the Old Lender.
No Borrower shall, and Katy shall not, in the case of the covenant applicable to it contained in Section 7. Create or suffer to exist any Lien or transfer upon or against any of its property or assets now owned or hereafter acquired, except Permitted Encumbrances.
Become liable upon the obligations or liabilities of any Person by assumption, endorsement or guaranty thereof or otherwise other than to Lenders except a as disclosed on Schedule 7. Payments to members shall be made so as to be available when the tax is due, including in respect of estimated tax payments.
In the event 1 the actual distribution to members made pursuant to this Section 7. In the event such amounts are not repaid in a timely manner by any member, then Continental shall not pay or make any distribution with respect to, or purchase, redeem or retire, any membership interest of Continental held or controlled by, directly or indirectly, such member until such payment has been made.
Enter as lessee into any lease arrangement for real or personal property unless capitalized and permitted under Section 7. Change its fiscal year from a year ending on December 31, or make any significant change i in accounting treatment and reporting practices except as required by GAAP or ii in tax reporting treatment except as required by law. Amend, modify or waive any term or material provision of its Articles of Incorporation or By-Laws as applicable, or Certificate of Formation or Operating Agreement, as applicable, unless required by law.
The Lenders acknowledge and agree that the payment by Consolidated or Katy of any Pentland Payments, so long as such payment is made in accordance with the terms of this Section 7. No Borrower shall, until satisfaction in full of the Obligations and termination of this Agreement, nor shall it permit any Affiliate or agent to:. Engage in any business or activity in violation of the Trading with the Enemy Act or equivalent thereof under Canadian Applicable Law.
Enter into any amendment, waiver or modification of the Management Agreement, or any related agreements, which is adverse in any respect to the Lenders.
No Borrower shall contribute to or enter into any agreement or assume any obligation to contribute to a Canadian Union Plan. The agreement of Lenders to make the initial Advances requested to be made on the Closing Date is subject to the satisfaction, or waiver by Lenders, immediately prior to or concurrently with the making of such Advances, of the following conditions precedent:.
Agent shall have received the Notes duly executed and delivered by an authorized officer of each Borrower;. Borrowers shall have used commercially reasonable efforts to deliver to Agent, landlord, mortgagee or warehouseman agreements satisfactory to Agent in its commercially reasonable judgment with respect to all premises leased by Borrowers at which Inventory, Equipment or books and records are located;.
Agent, on behalf of Lender, shall have entered into a Subordination Agreement with Borrowers and Subordinated Lender which shall set forth the basis upon which the Subordinated Lender may receive, and Borrowers may make, payments of Management Fees, which basis shall be satisfactory in form and substance to Agent in its sole discretion;.
Agent shall have received the Intellectual Property Security Agreement, duly executed in its favor by each Borrower and Katy; Agent shall have received a Pledge Agreement, duly executed in its favor by Katy, pursuant to which Katy shall have pledged and granted to Agent a security interest in the Equity Interests issued to Katy by Continental, and Agent shall have obtained a perfected first priority security interest therein;.
Agent shall have received in form and substance satisfactory to Agent, in its commercially reasonable judgment i an executed Mortgage and ii surveys;. Agent shall have received all environmental studies and reports prepared by independent environmental engineering firms with respect to all Real Property owned, or, if available, leased, by any Borrower;.
Agent shall have received an executed Financial Condition Certificate in the form of Exhibit 8. Agent shall have received a closing certificate signed by the Chief Financial Officer of Katy and each Borrower dated as of the date hereof, stating that i all representations and warranties set forth in this Agreement and the Other Documents are true and correct on and as of such date, ii Katy and Borrowers are on such date in compliance with all the terms and provisions set forth in this Agreement and the Other Documents and iii on such date no Default or Event of Default has occurred or is continuing;.
Agent shall have received evidence from Borrowers that the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date;. Agent shall have received duly executed agreements establishing the Blocked Accounts or Depository Accounts with financial institutions acceptable to Agent for the collection or servicing of the Receivables and proceeds of the Collateral;.
Agent shall have received a copy of the resolutions, in form and substance reasonably satisfactory to Agent, of the Board of Directors of Katy authorizing the execution, delivery and performance of this Agreement and each Other Document to which it is a party, certified by the Secretary or an Assistant Secretary of Katy as of the Closing Date; and, such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;.
Agent shall have received a certificate of the Secretary or an Assistant Secretary or the Manager of each Borrower and Katy, dated the Closing Date, as to the incumbency and signature of the officers of each Borrower and Katy, as applicable, executing this Agreement, the Other Documents, any certificate or other documents to be delivered by it pursuant hereto, together with evidence of the incumbency of such Secretary or Assistant Secretary;.
Agent shall have completed Collateral examinations and received appraisals, the results of which shall be satisfactory in form and substance to Lenders, of the Receivables, Inventory, General Intangibles, Real Property and Equipment of each Borrower and all books and records in connection therewith;. Agent shall have received a copy of the Pro Forma Financial Statements which shall be satisfactory in all respects to Lenders;. Agent shall have received written instructions from Borrowing Agent directing the application of proceeds of the initial Advances made pursuant to this Agreement;.
Agent shall have received any and all Consents necessary to permit the effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent shall have received such Consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;.
Agent shall have reviewed all material contracts of Borrowers including leases, union contracts, labor contracts, vendor supply contracts, license agreements and distributorship agreements and such contracts and agreements shall be satisfactory in all respects to Agent;. Agent shall have received and reviewed to its reasonable satisfaction all documents, instruments and agreements to be executed or delivered on or before the Closing Date by the Old Lender, pursuant to which all Indebtedness owing by the Borrowers to it other than reimbursement obligations owing by any Borrower in respect of any letter of credit issued by the Old Lender which may remain outstanding after the Closing Date , and all liens and security interests securing such Indebtedness, shall have been satisfied and released, respectively except for any cash pledged by any Borrower to secure such reimbursement obligations ;.
Evidence that the Ex-Im Credit Documents have been duly executed and delivered and are in full force and effect; and. All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the Transactions shall be satisfactory in form and substance to Agent and its counsel.
The agreement of Lenders to make any Advance requested to be made on any date including the initial Advance , is subject to the satisfaction of the following conditions precedent as of the date such Advance is made:.
Each of the representations and warranties made by Katy or any Borrower in or pursuant to this Agreement, the Other Documents and any related agreements to which it is a party, and each of the representations and warranties contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement, the Other Documents or any related agreement shall be true and correct in all material respects on and as of such date as if made on and as of such date;.
No Event of Default or Default shall have occurred and be continuing on such date, or would exist after giving effect to the Advances requested to be made, on such date provided, however that Agent, in its sole discretion, may continue to make Advances notwithstanding the existence of an Event of Default or Default and that any Advances so made shall not be deemed a waiver of any such Event of Default or Default; and.
In the case of any type of Advance requested to be made, after giving effect thereto, the aggregate amount of such type of Advance shall not exceed the maximum amount of such type of Advance permitted under this Agreement. Each request for an Advance by any Borrower hereunder shall constitute a representation and warranty by each Borrower as of the date of such Advance that the conditions contained in this subsection shall have been satisfied.
Each Borrower shall, or except with respect to Section 9. Agent shall have the right to confirm and verify all Receivables by any manner and through any medium it considers advisable and do whatever it may deem reasonably necessary to protect its interests hereunder.
Furnish Agent, concurrently with the delivery of the financial statements referred to in Sections 9. To the extent any Borrower is not in compliance with the foregoing laws, the certificate shall set forth with specificity all areas of non-compliance and the proposed action such Borrower will implement in order to achieve full compliance.
Promptly notify Agent in writing of any claim, litigation, suit or administrative proceeding affecting any Borrower or Katy, whether or not the claim is covered by insurance, and of any litigation, suit or administrative proceeding, which in any such case affects the Collateral or which could reasonably be expected to have a Material Adverse Effect. In addition, the reports shall be accompanied by a Compliance Certificate.
The reports shall be accompanied by a Compliance Certificate. Furnish Agent and Lenders within thirty 30 days after the end of each month other than for the months of March, June, September and December which shall be delivered in accordance with Sections 9. Furnish Agent as soon as available, but in any event within ten 10 days after the issuance thereof with copies of such financial statements, reports and returns as Katy shall send to its stockholders.
Furnish Agent and Lenders, no later than thirty 30 days after the beginning of each fiscal year of Katy, commencing with the fiscal year beginning on January 1, , a month by month projected operating budget and cash flow of Borrowers on a consolidated basis for such fiscal year including a consolidated income statement for each month and a consolidated balance sheet as at the end of the last month in each fiscal quarter , and a projected operating budget on a divisional basis for such fiscal year, such projections to be accompanied by a certificate signed by the President or Chief Financial Officer of each Borrower to the effect that such projections have been prepared on a basis consistent with past budgets and financial statements and that such officer has no reason to question the reasonableness of any material assumptions on which such projections were prepared.
Furnish Agent, concurrently with the delivery of the financial statements referred to in Section 9. Execute and deliver to Agent, upon request, such documents and agreements as Agent may, from time to time, reasonably request to carry out the purposes, terms or conditions of this Agreement.
Failure by any Borrower to pay any principal or interest on the Obligations when due, whether at maturity or by reason of acceleration pursuant to the terms of this Agreement or by notice of intention to prepay, or by required prepayment or failure to pay any other liabilities or make any other payment, fee or charge provided for herein when due or in any Other Document, and, solely to the extent that such failure is in respect of any such item other than principal, and solely to the extent such failure occurs only once but not more than once in any period of consecutive days commencing on the Closing Date, such failure continues without cure for three or more consecutive Business Days;.
Any representation or warranty made or deemed made by any Borrower or any Guarantor in this Agreement, any Other Document or any related agreement or in any certificate, document or financial or other statement furnished at any time in connection herewith or therewith shall prove to have been misleading in any material respect on the date when made or deemed to have been made;.
Failure by any Borrower to i furnish financial information when due or when requested, which failure, in the case of a violation of the reporting covenant contained in Section 9. Except as otherwise provided for in Sections Any Borrower or any Guarantor shall i apply for, consent to or suffer the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or similar fiduciary of itself or of all or a substantial part of its property, ii make a general assignment for the benefit of creditors, iii commence a voluntary case under any state, provincial or federal bankruptcy laws as now or hereafter in effect , iv be adjudicated a bankrupt or insolvent, v file a petition seeking to take advantage of any other law providing for the relief of debtors, vi acquiesce to, or fail to have dismissed, within sixty 60 days, any petition filed against it in any involuntary case under such bankruptcy laws, or vii take any action for the purpose of effecting any of the foregoing;.
Any Borrower or any Guarantor shall admit in writing its inability, or be generally unable, to pay its debts as they become due or cease operations of its present business;. Any Subsidiary of any Borrower, or any Guarantor, shall. Any Lien created hereunder or provided for hereby or under any related agreement for any reason ceases to be or is not a valid and perfected Lien having a first priority interest;. Termination or breach of any Guaranty, Guaranty Security Agreement, Pledge Agreement or similar agreement executed and delivered to Agent in connection with the Obligations of any Borrower, or if any Guarantor attempts to terminate, challenges the validity of, or its liability under, any such Guaranty, Guaranty Security Agreement, Pledge Agreement or similar agreement;.
Any Change of Ownership or Change of Control shall occur;. Any material provision of this Agreement or any Other Document shall, for any reason, cease to be valid and binding on any Borrower or any Guarantor, or any Borrower or any Guarantor shall so claim in writing to Agent or any Lender;. Any portion of the Collateral shall be seized or taken by a Governmental Body, or any Borrower or any Guarantor or the title and rights of any Borrower, any Guarantor or any Original Owner which is the owner of any material portion of the Collateral shall have become the subject matter of claim, litigation, suit or other proceeding which might, in the opinion of Agent, upon final determination, result in impairment or loss of the security provided by this Agreement or the Other Documents;.
An event or condition specified in Sections 7. With or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale, at any time or place, in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Agent shall give Borrowers reasonable notification of such sale or sales, it being agreed that in all events written notice mailed to Borrowing Agent at least ten 10 days prior to such sale or sales is reasonable notification.
At any public sale Agent or any Lender may bid for and become the purchaser, and Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity of redemption and all such claims, rights and equities are hereby expressly waived and released by each Borrower.
The cash proceeds realized from the sale of any Collateral shall be applied to the Obligations in the order set forth in Section Non cash proceeds will only be applied to the Obligations as they are converted into cash. If any deficiency shall arise, Borrowers shall remain liable to Agent and Lenders therefor. Each Borrower acknowledges that the purpose of this Section Without limitation upon the foregoing, nothing contained in this Section Every such Receiver may, in the discretion of Agent, be vested with all or any of the rights and powers of Agent and the Lenders.
Agent may, either directly or through its nominees, exercise any or all powers and rights given to a Receiver by virtue of the foregoing provisions of this paragraph. Subject to Section The enumeration of the foregoing rights and remedies is not intended to be exhaustive and the exercise of any rights or remedy shall not preclude the exercise of any other right or remedies provided for herein or otherwise provided by law, all of which shall be cumulative and not alternative.
FIFTH, to the payment of the outstanding principal amount of the Obligations including the payment or cash collateralization of any outstanding Letters of Credit ;. Each Borrower hereby waives notice of non-payment of any of the Receivables, demand, presentment, protest and notice thereof with respect to any and all instruments, notice of acceptance hereof, notice of loans or advances made, credit extended, Collateral received or delivered, or any other action taken in reliance hereon, and all other demands and notices of any description, except such as are expressly provided for herein.
All representations, warranties, covenants, waivers and agreements contained herein shall survive termination hereof until all Obligations are indefeasibly paid and performed in full. Each Lender hereby irrevocably authorizes Agent to take such action on its behalf under the provisions of this Agreement and the Other Documents and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto and Agent shall hold all Collateral, payments of principal and interest, fees except the fees set forth in Sections 3.
Agent may perform any of its duties hereunder by or through its agents or employees. As to any matters not expressly provided for by this Agreement including collection of the Note Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting and shall be fully protected in so acting or refraining from acting upon the instructions of the Required Lenders, and such instructions shall be binding; provided, however, that Agent shall not be required to take any action which exposes Agent to liability or which is contrary to this Agreement or the Other Documents or Applicable Law unless Agent is furnished with an indemnification reasonably satisfactory to Agent with respect thereto.
Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and the Other Documents. Neither Agent nor any of its officers, directors, employees or agents shall be. Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any of the Other Documents, or to inspect the properties, books or records of any Borrower.
The duties of Agent as respects the Advances to Borrowers shall be mechanical and administrative in nature; Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender; and nothing in this Agreement, expressed or implied, is intended to or shall be so construed as to impose upon Agent any obligations in respect of this Agreement except as expressly set forth herein. Independently and without reliance upon Agent or any other Lender, each Lender has made and shall continue to make i its own independent investigation of the financial condition and affairs of each Borrower and each Guarantor in connection with the making and the continuance of the Advances hereunder and the taking or not taking of any action in connection herewith, and ii its own appraisal of the creditworthiness of each Borrower and each Guarantor.
Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before making of the Advances or at any time or times thereafter except as shall be provided by any Borrower pursuant to the terms hereof. Agent shall not be responsible to any Lender for any recitals, statements, information, representations or warranties herein or in any agreement, document, certificate or a statement delivered in connection with or for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Agreement or any Other Document, or of the financial condition of any Borrower or any Guarantor, or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement, the Note, the Other Documents or the financial condition of any Borrower, or the existence of any Event of Default or any Default.
If Agent shall request instructions from Lenders with respect to any act or action including failure to act in connection with this Agreement or any Other Document, Agent shall be entitled to refrain from such act or taking such action unless and until Agent shall have received instructions from the Required Lenders; and Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, Lenders shall not have any right of action whatsoever against Agent as a result of its acting or refraining from acting hereunder in accordance with the instructions of the Required Lenders.
Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, order or other document or telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person or entity, and, with respect to all legal matters pertaining to this Agreement and the Other Documents and its duties hereunder, upon advice of counsel selected by it.
Agent may employ agents and attorneys-in-fact and shall not be liable for the default or misconduct of any such agents or attorneys-in-fact selected by Agent with reasonable care. In the event that Agent receives such a notice, Agent shall give notice thereof to Lenders. Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders; provided, that, unless and until Agent shall have received such directions, Agent may but shall not be obligated to take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of Lenders.
Agent may engage in business with any Borrower as if it were not performing the duties specified herein, and may accept fees and other consideration from any Borrower for services in connection with this Agreement or otherwise without having to account for the same to Lenders. To the extent Agent receives financial statements required under Sections 9. Without prejudice to their respective obligations to Lenders under the other provisions of this Agreement, each Borrower hereby undertakes with Agent to pay to Agent from time to time on demand all amounts from time to time due and payable by it for the account of Agent or Lenders or any of them pursuant to this Agreement to the extent not already paid.
Each of the Lenders agrees that it shall not, without the express consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the request of Agent, set off against the Obligations, any amounts owing by such Lender to any Borrower or any deposit accounts of any Borrower now or hereafter maintained with such Lender. Anything in this Agreement to the contrary notwithstanding, each of the Lenders further agrees that it shall not, unless specifically requested to do so by Agent, take any action to protect or enforce its rights arising out of this Agreement or the Other Documents, it being the intent of Lenders that any such action to protect or enforce rights under this Agreement and the Other Documents shall be taken in concert and at the direction or with the consent of Agent or Required Lenders.
Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section Each Borrower waives all suretyship defenses.
Any judicial proceeding brought by or against any Borrower with respect to any of the Obligations, this Agreement, the Other Documents or any related agreement may be brought in any court of competent jurisdiction in the State of New York, United States of America, and, by execution and delivery of this Agreement, each Borrower accepts for itself and in connection with its properties, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement.
Each Borrower hereby waives personal service of any and all process upon it and consents that all such service of process may be made by registered mail return receipt requested directed to Borrowing Agent at its address set forth in Section Nothing herein shall affect the right to serve process in any manner permitted by law or shall limit the right of Agent or any Lender to bring proceedings against any Borrower in the courts of any other jurisdiction.
Each Borrower waives any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens.
Each Borrower waives the right to remove any judicial proceeding brought against such Borrower in any state court to any federal court. Any judicial proceeding by any Borrower against Agent or any Lender involving, directly or indirectly, any matter or claim in any way arising out of, related to or connected with this Agreement or any related agreement, shall be brought only in a federal or state court located in the City, County and State of New York.
Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged.
Each Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
Any such supplemental agreement shall apply equally to each Lender and shall be binding upon Borrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, Borrowers, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default whether or not the subsequent Event of Default is the same as the Event of Default which was waived , or impair any right consequent thereon.
In the event that Agent requests the consent of a Lender pursuant to this Section Notwithstanding a the existence of a Default or an Event of Default, b that any of the other applicable conditions precedent set forth in Section 8. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.
Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to and not in substitution of the discretionary Revolving Advances permitted above in this Section Each Participant may exercise all rights of payment including rights of set-off with respect to the portion of such Advances held by it or other Obligations payable hereunder as fully as if such Participant were the direct holder thereof provided that Borrowers shall not be required to pay to any Participant more than the amount which it would have been required to pay to Lender which granted an interest in its Advances or other Obligations payable hereunder to such Participant had such Lender retained such interest in the Advances hereunder or other Obligations payable hereunder and in no event shall Borrowers be required to pay any such amount arising from the same circumstances and with respect to the same Advances or other Obligations payable hereunder to both such Lender and such Participant.
Upon such execution, delivery, acceptance and recording, from and after the transfer effective date determined pursuant to such Commitment Transfer Supplement,. Such Commitment Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Purchasing Lender and the resulting adjustment of the Commitment Percentages arising from the purchase by such Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender under this Agreement and the Other Documents.
Each Borrower hereby consents to the addition of such Purchasing Lender and the resulting adjustment of the Commitment Percentages arising from the purchase by such Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender under this Agreement and the Other Documents.
Borrowers shall execute and deliver such further documents and do such further acts and things in order to effectuate the foregoing. Upon such execution and delivery, from and after the transfer effective date determined pursuant to such Modified Commitment Transfer Supplement, i Purchasing CLO thereunder shall be a party hereto and, to the extent provided in such Modified Commitment Transfer Supplement, have the rights and obligations of a Lender thereunder and ii the transferor Lender thereunder shall, to the extent provided in such Modified Commitment Transfer Supplement, be released from its obligations under this Agreement, the Modified Commitment Transfer Supplement creating a novation for that purpose.
Such Modified Commitment Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Purchasing CLO. The entries in the Register shall be conclusive, in the absence of manifest error, and each Borrower, Agent and Lenders may treat each Person whose name is recorded in the Register as the owner of the Advance recorded therein for the purposes of this Agreement.
The Register shall be available for inspection by Borrowing Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. Agent shall have the continuing and exclusive right to apply or reverse and re-apply any payment and any and all proceeds of Collateral to any portion of the Obligations.
Without limiting the generality of the foregoing, this indemnity shall extend to any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, and reasonable costs, expenses and disbursements of any kind or nature whatsoever including reasonable fees and disbursements of counsel asserted against or incurred by any of the indemnitees described above in this Section Additionally, if any taxes excluding taxes imposed upon or measured solely by the net income of Agent and Lenders, but including any intangibles taxes, stamp tax, recording tax or franchise tax shall be payable by Agent, Lenders or Borrowers on account of the execution or delivery of this Agreement, or the execution, delivery, issuance or recording of any of the Other Documents, or the creation or repayment of any of the Obligations hereunder, by reason of any Applicable Law now or hereafter in effect, Borrowers will pay or will promptly reimburse Agent and Lenders for payment of all such taxes, including interest and penalties thereon, and will indemnify and hold the indemnitees described above in this Section Any notice or request hereunder may be given to Borrowing Agent or any Borrower or to Agent or any Lender at their respective addresses set forth below or at such other address as may hereafter be specified in a notice designated as a notice of change of address under this Section.
Any notice, request, demand, direction or other communication for purposes of this Section Any such Notice must be delivered to the applicable parties hereto at the addresses and numbers set forth under their respective names on Section Any Notice shall be effective:. Any Lender giving a Notice to Borrowing Agent or any Borrower shall concurrently send a copy thereof to the Agent, and the Agent shall promptly notify the other Lenders of its receipt of such Notice.
New York, New York PNC Agency Services. PNC Firstside Center. Pittsburgh, Pennsylvania Blank Rome LLP. One International Place. Draper, Esq. The obligations of Borrowers under Sections 2. If any part of this Agreement is contrary to, prohibited by, or deemed invalid under Applicable Laws or regulations, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given effect so far as possible.
Each Borrower recognizes that, in the event any Borrower fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, or threatens to fail to perform, observe or discharge such obligations or liabilities, any remedy at law may prove to be inadequate relief to Lenders; therefore, Agent, if Agent so requests, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving that actual damages are not an adequate remedy.
Neither Agent nor any Lender, nor any agent or attorney for any of them, shall be liable to any Borrower, Katy or any Guarantor or any Affiliate of any such Person for indirect, punitive, exemplary or consequential damages arising from any breach of contract, tort or other wrong relating to the establishment, administration or collection of the Obligations or as a result of any transaction contemplated under this Agreement or any Other Document.
The captions at various places in this Agreement are intended for convenience only and do not constitute and shall not be interpreted as part of this Agreement. This Agreement may be executed in any number of and by different parties hereto on separate counterparts, all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile or electronic transmission shall be deemed to be an original signature hereto.