Green Plains Inc.
Green Plains Inc. (Form: 8-K, Received: 08/29/2017 17:16:34)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 OR 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)

August 29, 2017

 

 

GREEN PLAINS INC.

(Exact name of registrant as specified in its charter)

 

 

Iowa

(State or other jurisdiction of incorporation)

 

001-32924   84-1652107

(Commission

file number)

 

(IRS employer

identification no.)

1811 Aksarben Drive, Omaha, Nebraska   68106
(Address of principal executive offices)   (Zip code)

(402) 884-8700

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01. Entry into a Material Definitive Agreement.

Term Loan Agreement

On August 29, 2017, Green Plains Inc. (the “Company”), and substantially all of the Company’s subsidiaries, but not including Green Plains Partners and certain other entities (the “Term Loan Obligors”) as guarantors, closed a $500 million term loan agreement (the “Term Loan Agreement”) with BNP Paribas, as administrative agent and collateral agent (the “Term Loan Agent”) and certain other financial institutions. The Term Loan Agreement will mature on August 29, 2023, and may be prepaid at any time without premium or penalty other than customary breakage costs with respect to Eurodollar-based loans or certain other limited circumstances in which event a 1.0% prepayment premium would be due.

The proceeds of the Term Loan Agreement will be used to refinance approximately $405 million of total debt outstanding with maturity dates ranging from June 2020 to October 2022 issued by two of the Company’s wholly owned subsidiaries, Green Plains Processing LLC and Fleischmann’s Vinegar Company, pay associated fees and expenses and for general corporate purposes.

The Term Loan Agreement requires principal payments of approximately $1.25 million on the last day of each quarter, with a final installment payable on August 29, 2023, equal to the unpaid principal and interest balances of the Term Loan Agreement. Beginning at the end of 2018, mandatory prepayments must be made on an annual basis at various percentages of excess cash flow depending on the total first lien leverage ratio as defined in the Term Loan Agreement. The Term Loan Agreement will bear interest at a variable rate per annum at the Company’s election, equal to (a) the applicable LIBOR rate, subject to a 1.00% floor, plus 5.50% or (b) a base rate equal to 4.50% plus the greater of (i) the Federal Funds Rate plus 0.50%, (ii) the Prime Rate, or (iii) one month LIBOR plus 1.00%.

The Term Loan Agreement is guaranteed by the Company and the Term Loan Obligors, and secured by substantially all of the assets of the Company and the Term Loan Obligors, including 17 ethanol production facilities with annual capacity of approximately 1.5 billion gallons, as well as the vinegar production facilities. The covenants of the Term Loan Agreement require the Company to maintain a maximum term debt to total term capitalization, each as defined in the Term Loan Agreement, at the end of each fiscal quarter of not more than 55.0% and a minimum interest coverage ratio, as defined, at the end of each fiscal quarter of not less than 1.25 to 1.0.

The Term Loan Agreement provides for customary events of default, which include (subject in certain cases to customary grace and cure periods), among others, the following: nonpayment of principal or interest; breach of covenants or other agreements in the Term Loan Agreement; defaults in failure to pay certain other indebtedness; and certain events of bankruptcy or insolvency. If any event of default occurs, the remaining principal balance and accrued interest on the Term Loan Agreement will become immediately due and payable.

Amendments to ABL Credit Agreements

On August 29, 2017, Green Plains Cattle Company LLC entered into the Fourth Amendment to the Credit Agreement with a group of lenders led by Bank of the West and ING Capital LLC, as agents; Green Plains Grain Company LLC entered into the Eighth Amendment to the Credit Agreement with a group of lenders led by BNP Paribas, as agent; and Green Plains Trade Group LLC entered into the First Amendment to the Fourth Amended and Restated Revolving Credit and Security Agreement with a group of lenders led by PNC Bank, National Association, as agent (collectively the “ABL Credit Agreements”). These agents are collectively referred to herein as the “ABL Collateral Agents”. As described above, the Company’s obligations under Term Loan Agreement are secured by substantially all of the assets of the Company and the Term Loan Obligors. The primary purpose of the amendments to the ABL Credit Agreements is to permit the security provided for in the Term Loan Agreement.

Intercreditor Agreements

On August 29, 2017, the respective agents under the Term Loan Agreement and ABL Credit Agreements, acting on behalf of the respective lenders under such agreements, entered into the Term Loan Intercreditor and Collateral Agency Agreement (the “Term Loan Intercreditor Agreement”), which was accepted by the Company and the Term Loan Obligors. In addition, each of the ABL Collateral Agents entered into separate intercreditor agreements with


the Term Loan Agent (collectively with the Term Loan Intercreditor Agreement, the “Intercreditor Agreements”). Among other matters, the Intercreditor Agreements govern how the respective priorities of the security interests held by those respective lenders would be administered in the event of default by the Company under any of these Agreements. Under the Intercreditor Agreements, each of the ABL Collateral Agents has a first-priority lien in the assets secured under the respective ABL Credit Agreement and the Term Loan Agent has a second priority lien in those assets. The Term Loan Agent has a first priority lien in substantially all of the other assets of the Company and the Term Loan Obligors, and the ABL Collateral Agents have a second priority lien in those assets.

The above descriptions of the material terms and conditions of the Term Loan Agreement, the amendments to ABL Credit Agreements, the related security agreements, and the Intercreditor Agreements do not purport to be complete and are qualified in their entirety by reference to the full text of such documents which are filed as exhibits to this report.

Item 1.02. Termination of a Material Definitive Agreement.

The information disclosed in Item 1.01 is incorporated by reference into this Item 1.02. The Company incurred a $12.3 million expense associated with the termination of the previous facilities, $2.9 million of which was a prepayment premium that was paid in cash at closing.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information disclosed in Item 1.01 is incorporated by reference into this Item 2.03.

Item 7.01. Regulation FD Disclosure.

On August 29, 2017, the Company issued a press release announcing these transactions, which is included as Exhibit 99.1 and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits. The following exhibits are filed as part of this report.

 

Number

 

Description

10.1(a)   Term Loan Agreement, dated as of August 29, 2017, among Green Plains Inc., BNP Paribas, as administrative agent and collateral agent and BNP Paribas Securities Corp., BMO Capital Markets Corp. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and joint book runners
10.1(b)   Guaranty, dated as of August 29, 2017, in favor of BNP Paribas, as collateral agent and administrative agent, and the other lenders party to the Term Loan Agreement
10.1(c)   Pledge Agreement, dated as of August 29, 2017, among Green Plains Inc., its subsidiaries and BNP Paribas, as collateral agent
10.1(d)   Security Agreement, dated as of August 29, 2017, among Green Plains Inc., its subsidiaries and BNP Paribas, as collateral agent
10.1(e)   Term Loan Intercreditor and Collateral Agency Agreement, dated as of August 29, 2017, among BNP Paribas, as Term Loan Collateral Agent, BNP Paribas, as Pari Passu Collateral Agent, Bank of the West and ING Capital LLC, as ABL-Cattle Agent, BNP Paribas, as ABL-Grain Agent, PNC Bank, National Association, as ABL-Trade Agent, and acknowledged by Green Plains Inc. and new grantors


10.2(a)   Fourth Amendment to the Credit Agreement, dated as of August 29, 2017, among Green Plains Cattle Company LLC, Bank of the West and ING Capital LLC, as Joint Administrative Agents, and the lenders party to the Credit Agreement
10.2(b)   ABL Intercreditor Agreement, dated as of August 29, 2017, among Bank of the West and ING Capital LLC, as Joint ABL Collateral Agent, and BNP Paribas, as Term Loan Collateral Agent, and acknowledged by Green Plains Cattle Company LLC and the other ABL Grantors
10.2(c)   Guaranty, dated as of August 29, 2017, in favor of Bank of the West and ING Capital LLC, as joint administrative agents
10.3(a)   Eighth Amendment to Credit Agreement, dated as of August 29, 2017, among Green Plains Grain Company and BNP Paribas, as Administrative Agent, and the lenders party to the Credit Agreement
10.3(b)   ABL Intercreditor Agreement, dated as of August 29, 2017, among BNP Paribas, as ABL Collateral Agent, and BNP Paribas, as Term Loan Collateral Agent, and acknowledged by Green Plains Grain Company LLC and the other ABL Grantors
10.3(c)   Guaranty, dated as of August 29, 2017, in favor of BNP Paribas, as administrative agent
10.4(a)   First Amendment to Fourth Amended and Restated Revolving Credit and Security Agreement, dated as of August 29, 2017, among Green Plains Trade Group LLC and PNC Bank, National Association, as agent, and the lenders party to the Credit and Security Agreement
10.4(b)   ABL Intercreditor Agreement, dated as of August 29, 2017, among PNC Bank, National Association, as ABL Collateral Agent, and BNP Paribas, as Term Loan Collateral Agent, and acknowledged by Green Plains Trade Group LLC and the other ABL Grantors
10.4(c)   Guaranty, dated as of August 29, 2017, in favor of PNC Bank, National Association, as agent
99.1   Press release, dated August 29, 2017


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

   

Green Plains Inc.

Date: August 29, 2017     By:   /s/ Jerry L. Peters
    Jerry L. Peters
   

Chief Financial Officer

(Principal Financial Officer)

Exhibit 10.1(a)

Execution Version

 

 

TERM LOAN AGREEMENT

dated as of August 29, 2017

among

GREEN PLAINS INC.,

as Borrower,

the Lenders party hereto,

BNP PARIBAS,

as Administrative Agent and as Collateral Agent,

and

BNP PARIBAS SECURITIES CORP.,

BMO CAPITAL MARKETS CORP. and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

as Joint Lead Arrangers and Joint Book Runners

 

 

 


CONTENTS

 

Section    Page  

SECTION 1 DEFINITIONS

     1  

1.1 Definitions

     1  

1.2 Other Interpretive Provisions

     22  

1.3 Accounting Terms

     23  

1.4 Pro Forma Calculations

     24  

SECTION 2 COMMITMENTS; BORROWING AND CONVERSION AND CONTINUATION PROCEDURES

     25  

2.1 Commitments

     25  

2.2 Loan Procedures

     25  

2.3 Incremental Term Loans

     27  

2.4 Extensions

     28  

2.5 Refinancing Loans

     30  

2.6 Commitments Several

     31  

SECTION 3 RECORDKEEPING

     31  

SECTION 4 INTEREST

     31  

4.1 Interest Rates

     31  

4.2 Interest Payment Dates

     32  

4.3 Setting and Notice of Eurodollar Rates

     32  

4.4 Computation of Interest

     32  

SECTION 5 FEES

     32  

SECTION 6 REPAYMENT OF LOANS; PREPAYMENTS

     32  

6.1 Repayment of Loans

     32  

6.2 Prepayments

     33  

6.3 All Prepayments of Eurodollar Loans

     34  

6.4 All Prepayments of Loans

     34  

SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES

     34  

7.1 Making of Payments

     34  

7.2 Application of Payments

     35  

7.3 Due Date Extension

     35  

7.4 Setoff

     35  

7.5 Proration of Payments

     36  

7.6 Taxes

     36  

7.7 Evidence of Indebtedness

     39  

SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS

     39  

8.1 Increased Costs

     39  

8.2 Basis for Determining Interest Rate Inadequate or Unfair

     40  

8.3 Changes in Law Rendering Eurodollar Loans Unlawful

     40  

8.4 Funding Losses

     41  

8.5 Right of Lenders to Fund through Other Offices

     41  

 

i


CONTENTS

 

Section    Page  

8.6 Discretion of Lenders as to Manner of Funding

     41  

8.7 Mitigation of Circumstances

     41  

8.8 Conclusiveness of Statements; Survival of Provisions

     42  

SECTION 9 REPRESENTATIONS AND WARRANTIES

     43  

9.1 Corporate Existence; Subsidiaries; Foreign Qualification

     43  

9.2 Corporate Authority; Enforceability; No Conflict

     43  

9.3 Compliance with Laws

     43  

9.4 Litigation and Administrative Proceedings

     44  

9.5 Title to Assets

     44  

9.6 No Default

     44  

9.7 Tax Returns

     45  

9.8 Environmental Laws

     45  

9.9 Continued Business

     45  

9.10 Employee Benefits Plans

     45  

9.11 Consents or Approvals

     45  

9.12 Solvency

     45  

9.13 Financial Condition

     46  

9.14 Regulations

     46  

9.15 Intellectual Property

     46  

9.16 Insurance

     46  

9.17 Deposit Accounts

     46  

9.18 Accurate and Complete Statements

     46  

9.19 Investment Company Act, etc.

     47  

9.20 Liens and Security Interests

     47  

9.21 Material Agreements

     47  

9.22 Anti-Bribery, Anti-Corruption and Anti-Money Laundering

     47  

9.23 Foreign Corrupt Practices Act

     47  

9.24 Sanctions Laws

     48  

SECTION 10 COVENANTS

     48  

10.1 Insurance; Maintenance of Property

     48  

10.2 Payment and Performance of Obligations

     49  

10.3 Financial Statements and other Information

     49  

10.4 Financial Records

     51  

10.5 Franchises; Change in Business or Fiscal Year; Business of the Borrower

     51  

10.6 ERISA Compliance

     52  

10.7 Financial Covenants

     53  

10.8 Debt

     53  

10.9 Liens

     56  

10.10 No Negative Pledges

     59  

10.11 Regulations T, U and X

     59  

10.12 Investments, Loans and Guaranties

     59  

10.13 Merger and Sale of Assets

     60  

 

ii


CONTENTS

 

Section    Page  

10.14 Acquisitions

     61  

10.15 Restricted Payments

     62  

10.16 Environmental Compliance

     63  

10.17 Affiliate Transactions

     64  

10.18 Use of Proceeds

     64  

10.19 Further Assurances

     64  

10.20 Restrictive Agreements

     67  

10.21 Certain payments of Certain Debt; Amendment of Organizational Documents and Specified Agreements

     67  

10.22 Inspection Rights, etc.

     69  

10.23 Compliance with Law; Licenses

     69  

10.24 Credit Ratings

     69  

10.25 Anti-Money Laundering and Anti-Terrorism Finance Laws; Foreign Corrupt Practices Act; Sanctions Laws

     69  

SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.

     70  

11.1 Effectiveness

     70  

SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT

     72  

12.1 Events of Default

     72  

12.2 Effect of Event of Default

     74  

SECTION 13 THE AGENTS

     75  

13.1 Appointment and Authorization of Administrative Agent

     75  

13.2 Appointment and Authorization of Collateral Agent

     75  

13.3 Consultation with Experts

     75  

13.4 Liability of Administrative Agent; Credit Decision

     76  

13.5 Action by Agents

     77  

13.6 Non Reliance on Agents and Other Lenders

     78  

13.7 Agents and Their Affiliates

     78  

13.8 Indemnity

     78  

13.9 Resignation of Administrative Agent and Successor Administrative Agent

     79  

13.10 Resignation of Collateral Agent and Successor Collateral Agent

     79  

13.11 Authorization to Release, Subordinate or Limit Liens

     80  

13.12 Application to Lead Arrangers

     80  

13.13 Delegation of Duties

     81  

13.14 Administrative Agent May File Proofs of Claim

     81  

SECTION 14 GENERAL

     81  

14.1 Waiver; Amendments

     81  

14.2 Confirmations

     82  

14.3 Notices

     82  

14.4 Regulation U

     84  

14.5 Costs and Expenses; Indemnification

     84  

14.6 Captions

     86  

 

iii


CONTENTS

 

Section    Page  

14.7 Assignments; Participations

     86  

14.8 Governing Law

     89  

14.9 Severability

     89  

14.10 Counterparts; Integration

     89  

14.11 Successors and Assigns

     89  

14.12 Obligations Several

     90  

14.13 Voidable Transfers; Maximum Lawful Rate; Patriot Act

     90  

14.14 Forum Selection and Consent to Jurisdiction

     91  

14.15 Waiver of Jury Trial

     91  

14.16 Treatment of Certain Information; Confidentiality

     92  

14.17 No Fiduciary Duty

     92  

14.18 Acknowledgement and Consent to Bail-In of EEA Financial Institutions

     93  

 

iv


SCHEDULES

 

SCHEDULE 2.1    Lenders, Commitments and Percentages
SCHEDULE 9.1    Subsidiaries
SCHEDULE 9.4    Litigation and Administrative Proceedings
SCHEDULE 9.5    Real Property
SCHEDULE 9.8    Environmental Matters
SCHEDULE 9.15    Intellectual Property
SCHEDULE 9.16    Insurance
SCHEDULE 9.17    Deposit Accounts
SCHEDULE 9.21    Material Agreements
SCHEDULE 10.8    Existing Debt
SCHEDULE 10.9    Existing Liens
SCHEDULE 10.12    Investments, Loans and Guaranties
SCHEDULE 10.19    Post-Closing Real Estate Matters
SCHEDULE 11.1    Debt to be Repaid
SCHEDULE 14.3    Notices
EXHIBITS   
EXHIBIT A    Form of Guaranty
EXHIBIT B    Form of Pledge Agreement
EXHIBIT C    Form of Security Agreement
EXHIBIT D    Form of Borrowing Notice
EXHIBIT E    Form of Conversion/Continuation Notice
EXHIBIT F    Form of Voluntary Prepayment Notice
EXHIBIT G    Form of Compliance Certificate
EXHIBIT H    Form of Assignment Agreement
EXHIBIT I    Form of Certificate of Non-Bank Status

 

-v-


TERM LOAN AGREEMENT

This TERM LOAN AGREEMENT dated as of August 29, 2017 (this “ Agreement ”) is among GREEN PLAINS INC. (the “ Borrower ”), the Lenders (as defined below), BNP PARIBAS, as administrative agent and as collateral agent.

WHEREAS, the Borrower has requested a term loan facility that will be used by the Borrower on the Effective Date (i) to refinance certain existing debt of the Borrower and its Subsidiaries, (ii) to pay fees and expenses associated with the term loan facility provided hereunder and (iii) for general corporate purposes of the Borrower and its Subsidiaries;

WHEREAS, BNP Paribas Securities Corp., BMO Capital Markets Corp. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and joint book runners, have arranged the financing provided to the Borrower under this Agreement; and

WHEREAS, the Lenders are willing to extend commitments to provide such term loan facility on the terms set forth below.

NOW, THEREFORE, the parties hereto agree as follows:

SECTION 1 DEFINITIONS.

1.1 Definitions . When used herein the following terms have the following meanings:

2018 Convertible Notes ” means those certain convertible senior notes due 2018 issued by the Borrower.

2022 Convertible Notes ” means those certain convertible senior notes due 2022 issued by the Borrower.

ABL Borrower ” means a Subsidiary of the Borrower that is a borrower under any of the ABL Facilities and, to the extent it is an obligor under the ABL-Trade Credit Documents, Green Plains Commodity Management LLC.

ABL-Cattle Credit Agreement ” means the Credit Agreement, dated as of December 3, 2014, among Green Plains Cattle Company, LLC, the lenders party thereto from time to time, Bank of the West and ING Capital LLC, as joint administrative agents, as amended, restated, supplemented, or otherwise modified in accordance herewith and as permitted by the ABL-Cattle Intercreditor Agreement.

ABL-Cattle Credit Documents ” means the “Loan Documents” under (and as defined in) the ABL-Cattle Credit Agreement.

ABL-Cattle Intercreditor Agreement ” means the ABL Intercreditor Agreement, dated as of the date hereof, among Bank of the West and ING Capital LLC, as joint administrative agents under the ABL-Cattle Credit Agreement, and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.

ABL Facilities ” means, collectively, the credit facilities evidenced by the ABL-Cattle Credit Documents, the ABL-Grain Credit Documents and the ABL-Trade Credit Documents.


ABL-Grain Credit Agreement ” means the Credit Agreement, dated as of October 28, 2011, among Green Plains Grain Company LLC, the lenders party thereto from time to time, BNP Paribas, as administrative agent and collateral agent, as amended, restated, supplemented, or otherwise modified in accordance herewith and as permitted by the ABL-Grain Intercreditor Agreement.

ABL-Grain Credit Documents ” means the “Loan Documents” under (and as defined in) the ABL-Grain Credit Agreement.

ABL-Grain Intercreditor Agreement ” means the ABL Intercreditor Agreement, dated as of the date hereof, among BNP Paribas, as administrative agent and collateral agent under the ABL-Grain Credit Agreement, and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.

ABL Priority Collateral ” means, with respect to any ABL Borrower, the “ABL Priority Collateral” as defined in the applicable ABL Intercreditor Agreement.

ABL-Trade Credit Agreement ” means the Fourth Amended and Restated Revolving Credit and Security Agreement, dated as of July 28, 2017, among Green Plains Trade Group LLC, the lenders party thereto from time to time, PNC Bank, National Association, as administrative agent and collateral agent, as amended, restated, supplemented, or otherwise modified in accordance herewith and as permitted by the ABL-Trade Intercreditor Agreement.

ABL-Trade Credit Documents ” means the “Other Documents” under (and as defined in) the ABL-Trade Credit Agreement.

ABL-Trade Intercreditor Agreement ” means the ABL Intercreditor Agreement, dated as of the date hereof, among PNC Bank, National Association, as administrative agent and collateral agent under the ABL-Trade Credit Agreement, and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.

ABL Intercreditor Agreements ” means, collectively, the ABL-Cattle Intercreditor Agreement, the ABL-Grain Intercreditor Agreement and the ABL-Trade Intercreditor Agreement.

Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the Equity Interests in any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary).

Administrative Agent ” means BNP Paribas in its capacity as administrative agent for the Lenders hereunder and any successor thereto in such capacity.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

2


Affiliate ” of any Person means (a) any other Person that, directly or indirectly, controls or is controlled by or is under common control with such Person and (b) any officer or director of such Person; provided , however, that, for purposes of Section 10.17 only, any Person that owns directly or indirectly 10% or more of the Equity Interests having ordinary voting power for the election of directors or other members of the Governing Body of a Person or 10% or more of the partnership or other ownership interests of a Person shall be deemed an Affiliate of such Person.

Agent-Related Persons ” means BNP Paribas or any successor administrative agent arising under Section 13.9 , and BNP Paribas or any successor collateral agent arising under Section 13.10 , in each case, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

Agents ” means the Administrative Agent and the Collateral Agent.

Agreement ” – see the Preamble .

All-in Yield ” means, as to any Debt, the effective interest rate with respect thereto as reasonably determined by the Administrative Agent taking into account the interest rate, margin, original issue discount, upfront fees and eurocurrency rate or base rate floor; provided that original issue discount shall be equated to interest rate assuming a four-year life to maturity; provided , further , that, for purposes of Section 2.3(e) , if the Incremental Term Loans include a eurocurrency rate floor greater than the applicable interest rate floor with respect to the Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin with respect to the Loans for purposes of determining whether an increase to the interest rate margin with respect to the Loans shall be required, but only to the extent an increase in the interest rate floor with respect to the Loans would cause an increase in the interest rate then in effect, and in such event, the interest rate floor (but not the interest rate margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided , further , that “All-in Yield” shall not include arrangement, underwriting, commitment, structuring or similar fees paid to arrangers or fees that are not paid ratably to the market with respect to such Debt.

Applicable Percentage ” means, as to any Lender, the percentage that (a) the outstanding principal amount of such Lender’s Loan is of (b) the aggregate outstanding principal amount of all Loans. The Applicable Percentage of each Lender as of the Effective Date is set forth across from such Lender’s name on Schedule 2.1 .

Applicable Retained ECF Percentage ” means, for any Cash Flow Period of the Borrower, 50% of Excess Cash Flow for such Cash Flow Period; provided that if the Total First Lien Leverage Ratio as of the end of any Fiscal Quarter is greater than or equal to 3.75 to 1.00, the amount of such prepayment shall be decreased to 25% of Excess Cash Flow for such Cash Flow Period.

Approved Fund ” means a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) that is (a) primarily engaged in the business of making, purchasing or otherwise investing in commercial loans and (b) managed or administered by a Lender, an Affiliate of a Lender or a Person that administers or manages a Lender.

 

3


Asset Sale ” means (a) any sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a sale and leaseback transaction) of the Borrower or any of its Subsidiaries or (b) the issuance or sale of Equity Interests of any Subsidiary of the Borrower, whether in a single transaction or a series of related transactions; provided , however , that the term “Asset Sale” shall not include (i) any transaction permitted by Section 10.13 (other than transactions consummated in reliance on Section 10.13(f) or 10.13(g) ) or (ii) any sale, conveyance, transfer or other disposition of ABL Priority Collateral so long as the obligations under the related ABL Facility remain outstanding upon the consummation of such sale and are required to be applied in repayment of the obligations outstanding thereunder.

Asset Sale Proceeds ” means any proceeds in the form of cash and cash equivalents (including Cash Equivalents) (including any such proceeds received by way of deferred payment of principal pursuant to a note or receivable or by the sale, transfer or other disposition of any marketable securities or non-cash consideration received in connection therewith or otherwise, but only as and when received) from any Asset Sale, in each case net of (a) any bona fide expenses (including reasonable professional fees and costs) incurred in connection with such Asset Sale and (b) taxes paid or reasonably estimated by the Borrower or any Subsidiary to be payable as a result thereof (after taking into account any available tax credit or deduction).

Assignee ” – see Section 14.7.1 .

Assignment Agreement ” – see Section 14.7.1 .

Available Amount ” means, on any date of determination (the “ Reference Date ”), an amount (which, solely as a result of the application of clause (e)(iv) below, may be negative) equal to the sum of (without duplication): (a) $25,000,000, plus (b) the Available Retained ECF Amount plus (c) an amount determined on a cumulative basis equal to the net cash proceeds received by the Borrower from an issuance and sale of Equity Interests (other than the proceeds from a Permitted Warrant Transaction, Disqualified Stock or Debt) of the Borrower following the Effective Date, to the extent such proceeds are not used for any other use or purpose (including, for the avoidance of doubt, to the extent not applied or not to be applied as a Specified Equity Contribution) or applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was contingent on receipt of such amount or utilization of such amount for a specified purpose, plus (d) to the extent not already included in the calculation of Excess Cash Flow of the Borrower and its Subsidiaries, the aggregate amount of all cash dividends and other cash distributions received by the Borrower or any Subsidiary (other than the MLP Subsidiaries, BioProcess Algae LLC and the ABL Borrowers and their respective Subsidiaries) from any joint ventures (other than the MLP Subsidiaries) and cash proceeds received by the Borrower or any Subsidiary (other than the MLP Subsidiaries, BioProcess Algae LLC and the ABL Borrowers and their respective Subsidiaries) arising from the sale of any joint ventures in existence as of the Effective Date (other than the MLP Subsidiaries) and any investment made pursuant to Section 10.12(xi) using the Available Amount during the period from the Business Day immediately following the Effective Date through and including the Reference Date, minus (e) (i) the aggregate amount of investments made pursuant to Section 10.12(xi) using the Available Amount, (ii) the aggregate amount of Restricted Payments made pursuant to Section 10.15(f) using the Available Amount, (iii) the aggregate amount of Restricted Debt Payments made pursuant to Section 10.21(a)(i) using the

 

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Available Amount and (iv) the aggregate amount of payments of principal of the 2018 Convertible Notes and 2022 Convertible Notes made pursuant to Section 10.21(a)(vi) or at maturity thereof (other than, in each case, with proceeds of a Debt incurrence permitted hereunder), in each case during the period from and including the Business Day immediately following the Effective Date through and including the Reference Date (without taking account of the intended usage of the Available Amount on such Reference Date).

Available Retained ECF Amount ” means, at any date of determination, the Applicable Retained ECF Percentage of Excess Cash Flow, determined on a cumulative basis for all Cash Flow Periods of the Borrower (commencing with the Fiscal Year ending December 31, 2018); provided that in no event shall the “Available Retained ECF Amount” be less than $0.

Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bankruptcy Code ” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.).

Base Rate ” means at any time the greatest of (a) the Federal Funds Rate plus 0.5%, (b) the Prime Rate, and (c) the Eurodollar Rate that would be in effect for an Interest Period of one month commencing on such date plus 1.0%.

Base Rate Loan ” means any Loan that bears interest at or by reference to the Base Rate.

Base Rate Margin ” means 4.50%.

Borrower ” – see the Preamble .

Business Day ” means any day (other than a Saturday or Sunday) on which (a) the Administrative Agent is open for commercial banking business in New York, New York, (b) commercial banks are not authorized by law to close in New York, New York and (c) in the case of a Business Day that relates to a Eurodollar Loan, dealings are carried on in the London interbank eurodollar market.

Capital Expenditures ” means all expenditures that, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet of the Borrower and its Subsidiaries, but excluding (a) expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed (i) from insurance proceeds (or similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (ii) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced and (b) expenditures financed by the cash proceeds of a sale of, or contribution to, the equity capital of the Borrower.

 

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Capital Lease ” means a lease that, in accordance with GAAP, has been or should be capitalized on the books of the lessee.

Capitalized Lease Obligations ” means obligations for the payment of rent for any real or personal property under Capital Leases.

Cash Equivalents ” means (a) obligations of, or fully guaranteed by, the United States or any agency or instrumentality thereof having maturities of not more than 12 months from the date of acquisition, (b) marketable direct obligations issued by any state of the United States or the District of Columbia or any political subdivision of any such state maturing within 12 months from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, (c) commercial paper rated A-2 or better by S&P or P-2 or better by Moody’s, (d) demand deposit accounts maintained in the ordinary course of business, (e) bankers’ acceptances issued by, and time deposits, certificates of deposit maturing within one year from the date of acquisition and money market deposit accounts maintained with, commercial banks having a long-term unsecured debt rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s at the time of acquisition thereof, and (f) money market funds substantially all of the assets of which are continuously invested in securities of the foregoing types; provided that in each case the same provides for payment of both principal and interest (and not principal alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest.

Cash Flow Period ” – see “Excess Cash Flow”.

Cash Interest Expense ” means, for any period, (x) Interest Expense for such period excluding any interest expense not payable in cash (such as pay-in-kind interest, non-cash amortization and write-off of discount and debt issuance costs), and minus (y) gross interest income for such period.

Casualty Event ” means any material loss of or damage to any tangible property or interest in tangible property of any Loan Party.

Change in Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) of Equity Interests representing more than 50% of the aggregate issued and outstanding Voting Equity Interests of the Borrower; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (A) nominated by the board of directors of the Borrower nor (B) appointed by directors so nominated; or (c) the acquisition of direct or indirect Control of the Borrower by any Person or group.

Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives

 

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thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Code ” means the Internal Revenue Code of 1986.

Collateral ” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien now or hereafter exists in favor of the Lenders, or the Collateral Agent on behalf of the Lenders, under the Collateral Documents, or in which the Collateral Documents purport to create a Lien in favor of the Lenders or the Collateral Agent on behalf of the Lenders.

Collateral Agent ” means BNP Paribas in its capacity as collateral agent for the Lenders hereunder and any successor thereto in such capacity.

Collateral Documents ” means each Pledge Agreement, the Security Agreements, each Mortgage, and any other agreement pursuant to which any Loan Party grants Collateral to the Collateral Agent for the benefit of the Lenders.

Communications ” – see Section 14.3(c) .

Consolidated Net Income ” means the consolidated net income (or loss) of the Borrower and its Subsidiaries (for the avoidance of doubt, excluding the MLP Subsidiaries and BioProcess Algae LLC) for such period, excluding any extraordinary gains or losses during such period.

Control ” (including correlative meanings) means the power, directly or indirectly, to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

Control Agreement ” means, with respect to any deposit account, securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance reasonably satisfactory to the Collateral Agent, among the Collateral Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried (if applicable, any holder of any other Lien, or any representative therefor) and the Loan Party maintaining such account or owning such entitlement or contract, effective to grant “control” (within the meaning of Articles 8 and 9 under the applicable UCC) over such account to the Collateral Agent (and, if applicable, such holder or representative).

Convertible Debt ” means Debt of the Borrower permitted to be incurred or outstanding under the terms of this Agreement (including, for the avoidance of doubt, the Convertible Notes) that is either (a) convertible into common stock of the Borrower (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common stock of the Borrower and/or cash (in an amount determined by reference to the price of such common stock).

 

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Convertible Notes ” means the 2018 Convertible Notes and the 2022 Convertible Notes.

Credit Extension ” means the making of any Loan.

Cure Date ” – see Section 10.7.3 .

Debt ” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business on ordinary terms); (c) all obligations (contingent or otherwise) of such Person under letters of credit (other than trade letters of credit to the extent such trade letters of credit do not have unpaid reimbursement obligations that have been outstanding for five Business Days or more) and all outstanding non-contingent reimbursement or payment obligations of such Person with respect to other Surety Instruments; (d) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (f) all Capitalized Lease Obligations of such Person; (g) all Hedging Obligations of such Person; (h) all indebtedness referred to in clauses (a)  through (g)  above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt; (i) any obligations in connection with any Disqualified Stock; and (j) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a)  through (i)  above.

Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Debt to be Repaid ” means Debt listed on Schedule 11.1 .

Disqualified Stock ” means any capital stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is ninety one (91) days following the Maturity Date, (b) is convertible into or exchangeable for (i) debt securities or (ii) any capital stock referred to in (a) above, in each case at any time on or prior to the date that is ninety-one (91) days following the Maturity Date, (c) is entitled to receive a dividend or distribution (other than for taxes attributable to the operations of the business) prior to the time that the Obligations are paid in full, or (d) has the benefit of any covenants or agreements that restrict the payment of any of the obligations under the Loan Documents or that are EBITDA or debt-multiple based (i.e. financial covenants).

 

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Dollar ” and the symbol “ $ ” mean lawful money of the United States.

Domestic Subsidiary ” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.

EBITDA ” means, for any period, Consolidated Net Income for such period plus to the extent deducted in determining such Consolidated Net Income (and without duplication), (a) Interest Expense, (b) income tax expense, (c) depreciation and amortization for such period, (d) any other non-cash charges or non-cash losses (provided, that if any such non-cash charge represents an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA to the extent added back in any prior periods), (e) all fees and expenses incurred in connection with the entry into this Agreement, and (f) in connection with any Permitted Acquisition, reasonable nonrecurring cash fees, costs and expenses.

EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date ” – see Section 11.1 .

Eligible Assignee ” means any Person other than (a) the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (b) a competitor of any Loan Party to the extent identified to the Administrative Agent by name in writing from time to time (provided, that the designation of a competitor to the Administrative Agent shall not apply retroactively to disqualify any Person that has previously acquired an assignment or participation interest in the Loans to the extent such Person was not designated as a competitor at the time of the applicable assignment or participation, as the case may be), or (c) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).

Environmental Laws ” means all Federal, state or local laws, statutes, rules, regulations, ordinances, codes and common laws, together with all administrative orders, licenses, authorizations and permits of, and written agreements with, any Governmental Authorities, in each case relating to pollution or protection of health or environmental media (i.e. air, soil, sediments, land surface, natural resources, and water), including (i) such laws relating to any actual or threatened release, manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of any Hazardous Materials and (ii) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal

 

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Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Emergency Planning and Community Right-to-Know Act, together with any amendments or reauthorizations thereto or thereof, and any and all regulations promulgated thereunder, and all analogous state and local counterparts or equivalents.

Equity Interest ” means, with respect to any Person, all of the shares of capital stock or shares in the share capital of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or shares in the share capital of (or other ownership or profit interests in) such Person, all of the securities convertible (including the Convertible Notes) into or exchangeable for shares of capital stock or shares in the share capital of (or other ownership or profit interests in) such Person or a cash value equivalent to such shares (or other ownership or profit interests) or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

ERISA ” means the Employee Retirement Income Security Act of 1974.

ERISA Affiliate ” means a corporation or trade or business (whether or not incorporated) that is, along with any Loan Party, treated as a single employer under Section 414 of the Code.

ERISA Event ” means (a) any Reportable Event; (b) the failure by any Loan Party or any ERISA Affiliate to satisfy the minimum funding standards under Section 302 of ERISA or Section 412 of the Code with respect to any Pension Plan; (c) the determination that any Pension Plan is considered an “at-risk” plan or that any Multiemployer Plan is “endangered” or is in “critical” status within the meaning of Sections 430, 431 or 432 of the IRC or Sections 303, 304 or 305 of ERISA, as applicable; (d) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA, other than for PBGC premiums not yet due; (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan or the occurrence of any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the appointment of a trustee to administer any Pension Plan; (g) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or the cessation of operations by any Loan Party or any ERISA Affiliate that would be treated as a withdrawal from a Pension Plan under Section 4062(d) of ERISA; (h) the partial or complete withdrawal (within the meanings of Sections 4203 and 4205 of ERISA) by any Loan Party or any ERISA Affiliate from any Multiemployer Plan or a notification to a Loan Party or ERISA Affiliate that a Multiemployer Plan is in “insolvency” (within the meaning of Section 4245 of ERISA); or (i) the taking of any action to terminate any Pension Plan under Section 4041 or 4041A of ERISA.

ERISA Plan ” means an “employee benefit plan” (within the meaning of Section 3(3) of ERISA) that any Loan Party sponsors, maintains, contributes to, has liability (contingent or otherwise) with respect to or has an obligation to contribute to (other than a Multiemployer Plan).

 

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Eurocurrency Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

Eurodollar Base Rate ” means, for an Interest Period for any Group of Eurodollar Loans, the greater of (a) (i) the rate per annum (rounded upwards, if necessary, to the next higher 1/100 of 1%) for deposits in Dollars for a period equal to such Interest Period, which appears on Reuters Screen LIBOR01 Page (or any successor page) as of 11:00 a.m. (London time) on the day two Business Days before the commencement of such Interest Period, or (ii) if the rate described in clause (a)  cannot be determined, the arithmetic average of the rates of interest per annum (rounded upwards, if necessary, to the next higher 1/100 of 1%) at which deposits in Dollars in immediately available funds are offered to the Administrative Agent at 11:00 a.m. (London time) two Business Days before the beginning of such Interest Period by three or more major banks in the interbank eurodollar market selected by the Administrative Agent for delivery on the first day of and for a period equal to such Interest Period and in an amount equal or comparable to the principal amount of the Eurodollar Loan scheduled to be made as part of such Group, and (b) 1.00% per annum. If the rate determined pursuant to clause (a)(i) or (a)(ii) shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Eurodollar Loan ” means any Loan that bears interest at a rate determined by reference to the Eurodollar Rate.

Eurodollar Margin ” means 5.50%.

Eurodollar Rate ” means, with respect to any Eurodollar Loan for any Interest Period applicable thereto, a rate per annum determined by the Administrative Agent pursuant to the following formula:

Eurodollar Rate =                 Eurodollar Base Rate                 

                                  1 - Eurocurrency Reserve Percentage

Event of Default ” means any event described in Section 12.1 .

Excess Cash Flow ” means, for each Fiscal Year of the Borrower starting with the Fiscal Year ending December 31, 2018 (each such Fiscal Year, a “ Cash Flow Period ”), the result of, without duplication, for such Cash Flow Period, (a) EBITDA, less (b) the sum of, without duplication, for such Cash Flow Period, (i) total Capital Expenditures, (ii) income tax expense paid in cash or payable (if payable, for which reserves have been established to the extent required under GAAP), (iii) Cash Interest Expense, (iv) scheduled principal payments arising with respect to any Debt of the Borrower or any Subsidiary and the portion allocable to principal of any regularly scheduled payment with respect to any Capital Lease made by the Borrower or

 

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any Subsidiary, (v) the aggregate amount of consideration paid in cash during such period for Permitted Acquisitions made from sources other than the proceeds of long-term Debt (other than the proceeds of revolving credit facilities to the extent intended to be repaid from operating cash flow) or Equity Interests and (vi) any fees and expenses paid in cash during such period with respect to Debt issuances (including amendments and modifications to the definitive documents governing such Debt), plus (c) any cash distributions received by the Borrower and its Subsidiaries from the MLP Subsidiaries. Notwithstanding anything in the definition of any term used in the definition of “Excess Cash Flow” to the contrary, (a) the calculation of Excess Cash Flow shall not be impacted by changes in working capital of the Borrower and its Subsidiaries, (b) all components of Excess Cash Flow shall be computed for the Borrower and its Subsidiaries on a consolidated basis (for the avoidance of doubt, excluding the MLP Subsidiaries and BioProcess Algae LLC), and (c) for each acquisition consummated during the applicable Cash Flow Period, the Consolidated Net Income of a target of any acquisition shall be included in such calculation only from and after the date of the consummation of such acquisition.

Excluded Assets ” means: (a) voting Equity Interests in excess of 65% of the total outstanding amount of any class of voting Equity Interests of any Foreign Subsidiary described in clause (a) or (b) of the definition thereof, (b) any assets located outside the United States, any state, territory or other jurisdiction thereof, (c) any General Intangible, permit, lease, license, contract or other Instrument to the extent the grant of a security interest in such General Intangible, permit, lease, license, contract or other Instrument, under the terms thereof or under applicable law, is prohibited and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter the applicable debtor’s rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both), and (d) any United States intent-to-use trademark applications to the extent that, and solely during the period in which the grant of a security interest therein would impair the validity or enforceability of or render void or result in the cancellation of, any registration issued as a result of such intent-to-use trademark applications under applicable Law; provided that upon submission and acceptance by the USPTO of an amendment to allege pursuant to 15 U.S.C. Section 1060(a) or any successor provision), such intent-to-use trademark application shall be considered Collateral; provided , further that (i) any such limitation described in the foregoing clause (c) shall only apply to the extent that any such prohibition or right to terminate or accelerate or alter the debtor’s rights could not be rendered ineffective pursuant to the UCC or any other applicable law (including debtor relief laws) or principles of equity, (ii) immediately upon the termination or elimination of any such prohibition or right or the requirement for any consent contained in any applicable law, General Intangible, permit, lease, license, contract or other Instrument, or upon the granting of any such consent, or waiving or terminating any requirement for such consent, such asset shall cease to be an “Excluded Asset” and (iii) notwithstanding anything in this definition to the contrary, any asset of the ABL Borrowers and their respective Subsidiaries which is or is purported to be collateral under any ABL Facility shall not be an “Excluded Asset” hereunder.

Excluded Real Property ” means (a) any real property of the ABL Borrowers and their respective Subsidiaries which do not constitute collateral under any ABL Facility, and no Lien has been granted in such real property securing any obligations under any ABL Facility or to any agent, lender or other holder of any such obligations under any ABL Facility, and (b) any owned or leased real property which is located outside of the United States.

 

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Excluded Taxes ” – see Section 7.6.1 .

Extended Loans ” means any class of Loans the maturity of which shall have been extended pursuant to Section 2.4 .

Extension ” – see Section 2.4(a) .

Extension Amendment ” means an amendment to this Agreement (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement) among the Loan Parties, the applicable extending Lenders, the Administrative Agent implementing an Extension in accordance with Section 2.4 .

Extension Offer ” – see Section 2.4(a) .

FCPA ” – see Section 9.23 .

Federal Funds Rate ” means, for any day, the rate determined by the Administrative Agent to be the average (rounded upward, if necessary, to the next higher 1/100 of 1%) of the rates per annum on overnight federal funds transactions, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

Fiscal Quarter ” means a fiscal quarter of a Fiscal Year.

Fiscal Year ” means any period of twelve consecutive calendar months ending on December 31; references to a Fiscal Year with a number corresponding to any calendar year (e.g., the “Fiscal Year 2014”) refer to the Fiscal Year ending on December 31 of such calendar year.

FRB ” means the Board of Governors of the Federal Reserve System or any successor thereto.

Foreign Subsidiary ” means (a) a Subsidiary that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia, (b) a Subsidiary substantially all of the assets of which are (i) Equity Interests (including any debt instrument treated as equity for U.S. federal income tax purposes) or (ii) Equity Interests (including any debt instrument treated as equity for U.S. federal income tax purposes) and debt instruments, in the case of clauses (i) and (ii), of one or more Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the Code, and (c) any Domestic Subsidiary of any Subsidiary described in clause (a) or (b) above.

GAAP ” means generally accepted accounting principles in the United States as in effect from time to time.

Governing Body ” means the board of directors, board of managers, board of representatives, board of advisers or similar governing or advisory body of any Loan Party.

 

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Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing (including any supra-national bodies such as the European Union or the European Central Bank).

Group ” – see Section 2.2.1 .

Guarantor ” means each Subsidiary of the Borrower that enters into a Guaranty.

Guaranty ” means a guaranty substantially in the form of Exhibit A .

Guaranty Obligation ” means, as to any Person, any obligation of such Person, whether or not contingent, with or without recourse, to assure or hold harmless the holder of any Debt, lease, dividend, letter of credit or other obligation (the “primary obligations”) of another Person (the “primary obligor”) against loss in respect thereof, including any obligation of such Person (i) to purchase, repurchase or otherwise acquire such primary obligations or any security therefor, (ii) to advance or provide funds for the payment or discharge of any such primary obligation, or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, or (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation. The amount of any Guaranty Obligations shall be deemed to equal the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof.

Hazardous Materials ” means all substances and wastes defined pursuant to any Environmental Law as hazardous, toxic, corrosive, flammable, explosive, carcinogenic, mutagenic, infectious, radioactive, or pollutants, including petroleum or any fraction thereof, petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas and infectious or medical wastes and all other substances or wastes of a similar nature.

Hedging Agreement ” means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect such Person against fluctuations in interest rates, currency exchange rates or commodity prices.

Hedging Obligations ” means, with respect to any Person, all liabilities of such Person under Hedging Agreements.

Incremental Free and Clear Amount ” – see Section 2.3(a) .

Incremental Lender ” – see Section 2.3(c) .

Incremental Ratio-Based Amount ” – see Section 2.3(a) .

Incremental Term Loan ” – see Section 2.3(a) .

 

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Information ” – see Section 14.16 .

Insolvency Proceeding ” means, with respect to any Person, (a) any case, action or proceeding with respect to such Person before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case undertaken under any U.S. Federal, state or foreign law, including the Bankruptcy Code.

Interest Coverage Ratio ” means, as of the last day of any period of four Fiscal Quarters then ended, the ratio of (a) EBITDA of the Borrower and its Subsidiaries plus cash distributions from the MLP Subsidiaries for such period, to (b) Cash Interest Expense of the Borrower and its Subsidiaries for such period (excluding any Cash Interest Expense of the MLP Subsidiaries and BioProcess Algae LLC).

Interest Expense ” means, for any period, the consolidated interest expense of the Borrower and its Subsidiaries for such period (including all imputed interest on Capital Leases).

Interest Period ” means, as to any Eurodollar Loan, the period commencing on the date such Loan is borrowed or continued as a Eurodollar Loan and ending on the date one, three or six months thereafter, and only with respect to the first four weeks after the Effective Date, seven days thereafter, as selected by the Borrower pursuant to Section 2.2.2 or 2.2.3 ; provided that:

(a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;

(b) except in the case of any interest period of seven days, any Interest Period for a Eurodollar Loan that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c) the Borrower may not select any Interest Period for a Loan if, after giving effect to such selection, the aggregate principal amount of all Loans having Interest Periods ending after any date on which an installment of the Loans is scheduled to be repaid would exceed the aggregate principal amount of the Loans scheduled to be outstanding after giving effect to such repayment.

Inventory ” means all of the Borrower’s and the Guarantors’ now owned or hereafter acquired goods, merchandise and other personal property, wherever located, to be furnished under any consignment arrangement, contract of service or held for sale or lease, all raw materials, work in progress, finished goods and materials and supplies of any kind, nature or description which are or might be used or consumed in the Borrower’s or the Guarantors’ business or used in selling or furnishing such goods, merchandise and other personal property, all documents of title or other documents representing them.

 

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IRS ” means the Internal Revenue Service, and any Person succeeding to any of its principal functions under the Code.

ITL Effective Date ” - see Section 2.3(d) .

Lead Arrangers ” means BNP Paribas Securities Corp., BMO Capital Markets Corp. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, in their capacities as joint lead arrangers and joint book runners of the facility hereunder.

Lender ” means (a) each Person identified as a “Lender” on the signature pages hereof, (b) each Person that becomes a party hereto pursuant to an Assignment Agreement and (c) the respective successors and assigns of the foregoing.

Lending Office ” – see Section 8.5 .

Lien ” means, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right owned or being purchased or acquired by such Person that secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance (of any kind whether or not monetary in nature), charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise (including the interest of a lessor under a Capital Lease but excluding the interest of a lessor under an operating lease).

Loan ” – see Section 2.1 .

Loan Documents ” means this Agreement, the Guaranties, the Collateral Documents, the ABL Intercreditor Agreements and each other certificate, agreement or other document expressly designated as a “Loan Document” by the Borrower or any other Loan Party.

Loan Parties ” means the Borrower and each Guarantor, and “ Loan Party ” means any of them.

Margin Stock ” means any “margin stock” as defined in Regulation U of the FRB.

Material Adverse Effect ” means (a) an event, change or condition which individually or in the aggregate with any other events, changes or conditions has had or would reasonably be expected to have a material adverse change in, or a material adverse effect upon, the operations, business, property, prospects or financial condition of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Loan Parties to perform any of their payment obligations under the Loan Documents; or (c) a material adverse effect upon (i) the legality, validity, binding effect or enforceability against the Loan Parties of any material term of the Loan Documents or the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents or (ii) the perfection or priority of any material Lien granted in any portion of the Collateral.

Material Property ” – see Section 12.1.13(b) .

 

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Maturity Date ” means the earliest to occur of (a) August 29, 2023, (b) the date that is 91 days prior to the earliest scheduled maturity date for any series of 2022 Convertible Notes, if as of such date, (i) more than $50,000,000 in aggregate principal amount of 2022 Convertible Notes remain outstanding on such date and (ii) proceeds of any Permitted Refinancing of the 2022 Convertible Notes (or other permitted Convertible Debt) are not maintained in an escrow account for use solely to refinance the 2022 Convertible Notes in an aggregate amount sufficient to refinance such notes in full, and (c) such other date on which the Loans are declared to be due and payable pursuant to Section 12 .

MLP Qualifying Asset ” means any right, title or interest in any asset that is used to generate income that is qualified from time to time under Section 7704 of the Code, together, in each case with all existing agreements related to such assets.

MLP Subsidiaries ” means, collectively, Green Plains Holdings LLC, Green Plains Partners LP, and their respective subsidiaries.

Moody’s ” means Moody’s Investors Service, Inc. or any successor thereto.

Mortgage ” means a mortgage, deed of trust, leasehold mortgage or similar instrument granting the Collateral Agent for the benefit of the Lenders a Lien on real property owned or leased by the Borrower or any Guarantor.

Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or ERISA Affiliate is, or within the last five years has been, required to contribute.

Non-Consenting Lender ” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all or all affected Lenders in accordance with the terms of Section 14.7 and (ii) has been approved by the Required Lenders.

Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document owing to any Lender with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

Omnibus Agreement ” means that certain Omnibus Agreement, entered into as of July 1, 2015, by and among Green Plains Inc., Green Plains Partners LP, Green Plains Holdings LLC and Green Plains Operating Company LLC (and any amendment, restatement, replacement, supplement or other modification thereof or thereto, so long as such amendment, restatement, replacement, supplement or other modification is not materially adverse to the interests of the Lenders).

Organizational Documents ” means, with respect to any Person (other than an individual), such Person’s articles or certificate of incorporation, operating agreement or equivalent formation documents, such Person’s bylaws, regulations or equivalent governing documents and any similar organizational documents of such Person.

 

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Owned Real Property ” means all real property owned in fee by the Borrower or its Subsidiaries.

Participant ” – see Section 14.7.2 .

Participant Register ” – see Section 14.7.2 .

Patriot Act ” – see Section 14.13 .

PBGC ” means the Pension Benefit Guaranty Corporation and any Person succeeding to any of its principal functions under ERISA.

Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

Permitted Acquisition ” – see Section 10.14 .

Permitted Bond Hedge Transaction ” means any call or capped call option (or substantively equivalent derivative transaction) on the Borrower’s common stock purchased by the Borrower in connection with the issuance of any Convertible Debt; provided that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the Borrower from the sale of such Convertible Debt issued in connection with the Permitted Bond Hedge Transaction.

Permitted Liens ” – see Section 10.9 .

Permitted Refinancing ” means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement or extension of any Debt of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Debt so modified, refinanced, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts paid, and fees, expenses, commissions, underwriting discounts and expenses incurred, in connection with such modification, refinancing, refunding, renewal, replacement or extension and, in the case of a refinancing of unutilized revolving commitments permitted under this Agreement prior to such refinancing, by an amount equal to such existing revolving commitment unutilized thereunder, (b) other than with respect to a Permitted Refinancing of Debt permitted pursuant to Section 10.8(b) , such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the Debt being modified, refinanced, refunded, renewed, replaced or extended, (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d) to the extent such Debt being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right

 

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of payment to the Obligations on terms, taken as a whole, not materially less favorable (as reasonably determined by the Borrower in good faith) to the Lenders in all material respects as those contained in the documentation governing the subordination of the Debt being modified, refinanced, refunded, renewed, replaced or extended, (e) neither Borrower nor any of its Subsidiaries shall be an obligor or guarantor of any such refinancings, replacements, refundings, renewals, replacements or extensions except to the extent that such Person was such an obligor or guarantor in respect of the applicable Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (f) such modification, refinancing, refunding, renewal, replacement or extension shall not be secured by any Lien on any asset other than the assets that secured or are permitted to secure such Debt being modified, refinanced, refunded, renewed, replaced or extended, and (g) such modification, refinancing, refunding, renewal, replacement or extension shall not (if secured) have a higher Lien priority than such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended or, in the case of any Permitted Refinancing of any ABL Facility, shall be subject to the terms of the ABL Intercreditor Agreement applicable to such ABL Facility being modified, refinanced, refunded, renewed, replaced or extended.

Permitted Warrant Transaction ” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on the Borrower’s common stock sold by the Borrower substantially concurrently with any purchase by the Borrower of a related Permitted Bond Hedge Transaction.

Person ” means any natural person, corporation, partnership, trust, limited liability company, association, Governmental Authority or other entity, whether acting in an individual, fiduciary or other capacity.

Platform ” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.

Pledge Agreement ” means a Pledge Agreement substantially in the form of Exhibit B .

Prime Rate ” means, for any day, the rate of interest announced or otherwise established by the Administrative Agent from time to time as its prime commercial rate as in effect on such day, with any change in the Prime Rate resulting from a change in such prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate (it being acknowledged and agreed that such rate may not be the Administrative Agent’s best or lowest rate).

Ratio Calculation Date ” – see Section 1.4(a) .

Recovery Event Proceeds ” means any insurance proceeds from any Casualty Event or any condemnation proceeds (or other similar recoveries), in each case net of (a) any collection expenses and (b) taxes paid or reasonably estimated by the Borrower or any Subsidiary to be payable as a result thereof (after taking into account any available tax credit or deduction).

Refinanced Loans ” shall have the meaning assigned to such term in Section 2.5(a) .

Refinancing Amendment ” shall have the meaning assigned to such term in Section 2.5(d) .

 

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Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

Replacement Loan ” means one or more new borrowings of Loans that result from a Refinancing Amendment in accordance with Section 2.5 , which may be in the form of one or more series of senior secured notes or loans (each of which may be secured by the Collateral on a pari passu or junior basis with the Loans) or unsecured loans or notes.

Reportable Event ” means a “reportable event” as that term is defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Pension Plan, other than an event for which the 30-day notice period is waived.

Required Lenders ” means Lenders having aggregate Applicable Percentages of more than 50%.

Responsible Financial Officer ” means, as to any Person, the chief executive officer, the president, the chief financial officer, treasurer, or the corporate controller of such Person.

Responsible Officer ” means, as to any Person, any vice president or Responsible Financial Officer of such Person.

Restricted Debt Payment ” – see Section 10.21 .

Restricted Payments ” – see Section 10.15 .

S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

Sanctioned Country ” – see Section 9.24 .

Sanctioned Person ” – see Section 9.24 .

Sanctions ” means any economic or trade sanctions or restrictive measures enacted, administered, imposed or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, the United Nations Security Council, and/or the European Union and/or the French Republic, and/or Her Majesty’s Treasury or other relevant sanctions authority.

Security Agreement ” means (a) a security agreement substantially in the form of Exhibit C entered into by the Loan Parties whose assets include Term Priority Collateral and (b) one or more security agreements entered into by the Loan Parties whose assets include ABL Priority Collateral and the Collateral Agent with respect to the Liens granted on the Collateral thereunder as security for the Obligations.

Specified Equity Contribution ” – see Section 10.7.3 .

Subordinated Debt ” means Debt of any Borrower or any Subsidiary that is contractually subordinated in right of payment to the Obligations; provided that such terms of subordination and the intercreditor documentation with respect thereto are reasonably satisfactory to the Administrative Agent.

 

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Subsidiary ” means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which such Person and/or its other Subsidiaries own, directly or indirectly, such number of outstanding shares or other ownership interests as have more than 50% of the Voting Equity Interests for the election of directors, other managers, or any similar governing body of such entity. Unless the context otherwise requires, each reference to a Subsidiary herein shall be a reference to a Subsidiary of the Borrower other than any of the MLP Subsidiaries and BioProcess Algae LLC; provided , that, for purposes of Sections 9.1(b) , 9.4 , 9.7 , 9.10 , 9.13 , 9.22 , 9.23 , 9.24 , 10.2(a)(i) , 10.3(a)–(c) , 10.6 , and 10.25 only, reference to Subsidiaries shall be deemed also to be references to MLP Subsidiaries and BioProcess Algae LLC.

Surety Instrument ” means a letter of credit (whether standby or commercial), banker’s acceptance, bank guaranty, shipside bond, surety bond or any similar instrument.

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term Loan Intercreditor Agreement ” means the Term Loan Intercreditor Agreement and Collateral Agency Agreement, dated as of the date hereof, among the Collateral Agent, PNC Bank, National Association, as collateral agent under the ABL-Trade Credit Agreement, BNP Paribas, as collateral agent under the ABL-Grain Credit Agreement, Bank of the West and ING Capital LLC, as joint administrative agents and collateral agents under the ABL-Cattle Credit Agreement, and PNC Bank, National Association, as pari passu collateral agent for the holders of the obligations under the ABL Facilities, as amended, restated, supplemented or otherwise modified from time to time.

Term Priority Collateral ” means, with respect to any Loan Party, the “Term Loan Priority Collateral” as defined in the Term Loan Intercreditor Agreement.

Total First Lien EBITDA ” means, for any period of determination, the combined EBITDA of the Borrower and the Guarantors whose assets include Term Priority Collateral securing the Obligations on a first priority basis during such period, plus the sum of (a) the amount of any cash distributions received by the Borrower and such Guarantors (other than the ABL Borrowers and their respective Subsidiaries) from each ABL Borrower and its respective Subsidiaries during such period, after deducting the amount of cash proceeds contributed by the Borrower and such Guarantors (other than the ABL Borrowers and their respective Subsidiaries) to such ABL Borrower and its respective Subsidiaries outside of the ordinary course of business, including by way of equity contributions, issuance of new Equity Interests or intercompany loans to the extent of any proceeds that are not used by the applicable ABL Borrower or its Subsidiaries for Permitted Acquisitions and capital expenditures or associated with an increase in the revolving commitments under such ABL Borrower’s ABL Facility (but, in any event, such deductions shall not result in an amount that is less than zero for this clause (a)), and (b) any cash distributions received by the Borrower and its Subsidiaries from the MLP Subsidiaries.

 

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Total First Lien Leverage Ratio ” means, as of the last day of any Fiscal Quarter, the ratio of (a) the aggregate principal amount of the Loans outstanding as of such date, to (b) the Total First Lien EBITDA calculated for the trailing twelve month period ending on such day.

Total Term Capitalization ” means, as of the last day of any Fiscal Quarter, the sum of (a) Total Term Debt and (b) the Borrower’s book equity excluding “accumulated other comprehensive income” reflected on the balance sheet of the Borrower and its Subsidiaries, determined on a consolidated basis, for such period.

Total Term Debt ” means, as of the last day of any Fiscal Quarter, the sum of (a) the aggregate principal amount of the Loans (including Incremental Term Loans) outstanding as of such date, (b) the aggregate principal amount of Debt incurred pursuant to Section 10.8(n) outstanding as of such date, and (c) all Debt of the Borrower and its Subsidiaries (excluding such Debt of the MLP Subsidiaries and BioProcess Algae LLC), determined on a consolidated basis, in the form of one or more term loans or funded debt securities and described in clauses (a) , (d) , (f) , and (j)  of the definition of “Debt”, as of such date (and excluding, for the avoidance of doubt, any revolving Debt of any ABL Borrowers).

Type of Loan or Borrowing ” – see Section 2.2.1 . The types of Loans or borrowings under this Agreement are as follows: Base Rate Loans or borrowings and Eurodollar Loans or borrowings.

UCC ” means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect from time to time in the State of New York.

United States ” and “ U.S .” each means the United States of America.

Unmatured Event of Default ” means any event that, if it continues uncured, will, with lapse of time or the giving of notice or both, constitute an Event of Default.

Voidable Transfer ” - see Section 14.13 .

Voting Equity Interest ” means, as to any Person, an Equity Interest in such Person having ordinary voting power with respect to the Governing Body of such Person.

Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

1.2 Other Interpretive Provisions . (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b) Section , Schedule and Exhibit references are to this Agreement unless otherwise specified.

(c) The term “including” is not limiting and means “including without limitation”.

 

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(d) If a consent or approval is not to be unreasonably withheld, such consent or approval shall not be unreasonably withheld, conditioned or delayed.

(e) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including”.

(f) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement), other contractual instruments and organizational documents shall be deemed to include all subsequent amendments, restatements and other modifications thereto, but only to the extent such amendments, restatements and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such statute or regulation from time to time.

(g) The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(h) This Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.

(i) This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Lead Arrangers, the Agents, certain Lenders, the Borrower and the other parties thereto and are the products of all parties. Accordingly, they shall not be construed against the Lead Arrangers, the Agents, or the Lenders merely because of the Lead Arrangers’, the Agents’, or certain Lenders’ involvement in their preparation.

(j) Except as otherwise specified herein, any reference to a particular time means such time in New York, New York.

(k) Terms used in this Agreement and defined in the UCC are used herein as defined in the UCC, unless otherwise defined in this Agreement.

1.3 Accounting Terms . (a) Except as otherwise expressly provided herein, all accounting terms not specifically or completely defined herein shall be construed, and all financial data (including financial ratios and requirements) required to be submitted pursuant to this Agreement shall be prepared, in conformity with GAAP.

(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

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1.4 Pro Forma Calculations . For purposes of determining whether any action is otherwise permitted to be taken hereunder, EBITDA, Total First Lien EBITDA, Total Term Capitalization, Total Term Debt, the Total First Lien Leverage Ratio and the Interest Coverage Ratio shall be calculated as follows:

(a) In the event that the Borrower or any Subsidiary (i) incurs, redeems, retires or extinguishes any Debt or (ii) issues or redeems Disqualified Stock subsequent to the commencement of the period for which such ratio is being calculated but prior to or simultaneously with the event for which the calculation of such ratio is made (a “ Ratio Calculation Date ”), then such ratio shall be calculated giving pro forma effect to such incurrence, redemption, retirement or extinguishment of Debt, or such issuance or redemption of Disqualified Stock, as if the same had occurred at the beginning of the applicable four-quarter period.

(b) For purposes of making the computation referred to above, investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business made (or committed to be made pursuant to a definitive agreement) during the four-Fiscal Quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the relevant Ratio Calculation Date shall be calculated on a pro forma basis in accordance with GAAP for such four-Fiscal Quarter reference period assuming that all such investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations had occurred on the first day of the four-Fiscal Quarter reference period. If since the beginning of such period any Person that subsequently became a Subsidiary or was merged with or into the Borrower or any of its Subsidiaries since the beginning of such period shall have made any investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then such ratio shall be calculated giving pro forma effect thereto for such period as if such investment, acquisition, disposition, merger, consolidation or discontinued operation had occurred at the beginning of the applicable four-Fiscal Quarter period.

(c) For purposes of this Section 1.4 , whenever pro forma effect is to be given to any investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, the pro forma calculations shall be made in good faith by a Responsible Financial Officer of the Borrower.

(d) Interest on a Capitalized Lease Obligation shall be deemed to accrue at the interest rate reasonably determined by a Responsible Financial Officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Debt under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Debt during the applicable period. Interest on Debt that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.

 

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(e) If, after the Effective Date, the Borrower or any of its Subsidiaries acquires an ethanol plant, for purposes of determining compliance with the covenants set forth in Section 10.7.2 and any other calculation of EBITDA or pro forma EBITDA required under this Agreement, EBITDA shall be calculated on a pro forma basis for the four Fiscal Quarters ended immediately prior to such acquisition, and EBITDA shall include pro forma EBITDA for such plant based principally on a Responsible Financial Officer’s reasonable determination of what the performance of such ethanol plant would have been under management by the Borrower based on the average performance of ethanol plants owned by the Borrower and its Subsidiaries, but adjusted for the size, condition and productivity of such ethanol plant.

SECTION 2 COMMITMENTS; BORROWING AND CONVERSION AND CONTINUATION PROCEDURES.

2.1 Commitments . Subject to the terms and conditions of this Agreement, each Lender, severally and for itself alone, agrees to make a term loan (each a “ Loan ”) to the Borrower on the Effective Date in an amount not to exceed such Lender’s Applicable Percentage of the $500,000,000 aggregate amount of the Loans. Loans that are repaid may not be reborrowed.

2.2 Loan Procedures .

2.2.1 Various Groups of Loans . Each Loan shall be divided into tranches that are either a Base Rate Loan or a Eurodollar Loan (each a “ type ” of Loan), as the Borrower shall specify in the related notice of borrowing or conversion pursuant to Section 2.2.2 or  2.2.3 . Eurodollar Loans having the same Interest Period are sometimes called a “ Group ” or collectively “ Groups ”. Base Rate Loans and Eurodollar Loans may be outstanding at the same time; provided that not more than ten different Groups of Eurodollar Loans shall be outstanding at any one time. All borrowings, conversions and repayments of Loans shall be effected so that each Lender of the applicable tranche of Loans will have a pro rata share (according to its Applicable Percentage) of all types and Groups of such tranche of Loans.

2.2.2 Borrowing Procedures . The Borrower shall give written notice or telephonic notice (followed promptly by written confirmation thereof) substantially in the form of Exhibit D to the Administrative Agent of the proposed borrowing not later than (a) in the case of a Base Rate borrowing, 11:00 a.m. on the proposed date of such borrowing, and (b) in the case of a Eurodollar Rate borrowing, 11:00 a.m. at least three Business Days prior to the proposed date of such borrowing. Such notice shall be effective upon receipt by the Administrative Agent, shall be irrevocable and shall specify the date, amount and type of borrowing and, in the case of a Eurodollar Rate borrowing, the initial Interest Period therefor. Promptly upon receipt of such notice, the Administrative Agent shall advise each Lender thereof. Not later than 1:00 p.m. on the date of the proposed borrowing, each Lender shall provide the Administrative Agent at the office specified by the Administrative Agent with immediately available funds in an amount equal to such Lender’s Applicable Percentage of such borrowing and, so long as the conditions precedent set forth in Section 11 have been satisfied, the Administrative Agent shall promptly pay the funds received from the Lenders to the Borrower on the requested borrowing date.

 

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2.2.3 Conversion and Continuation Procedures . (a) Initially, the Loans funded on the Effective Date shall bear interest at the Base Rate, and until the earlier to occur of (i) the 30 th day following the Effective Date and (ii) the date upon which the Administrative Agent determines that the primary syndication of the Loans funded on the Effective Date has been completed, the Loans shall bear interest at either, at the Borrower’s election, the Base Rate or the Eurodollar Rate for an Interest Period of seven days. At any time, and from time to time thereafter, subject to the provisions of Section 2.2.1 , the Borrower may, upon irrevocable notice to the Administrative Agent in accordance with clause (b)  below:

(i) elect, as of any Business Day, to convert any outstanding Loan into a Loan of the other type; or

(ii) elect, as of the last day of the applicable Interest Period, to continue any Group of Eurodollar Loans having an Interest Period expiring on such day (or any part thereof in an aggregate amount of $1,000,000 or a higher integral multiple of $100,000) for a new Interest Period.

(b) The Borrower shall give written notice or telephonic notice (followed promptly by written confirmation thereof) substantially in the form of Exhibit E to the Administrative Agent of each proposed conversion or continuation not later than (i) in the case of conversion into Base Rate Loans, 11:00 a.m. on the proposed date of such conversion; and (ii) in the case of a conversion into or continuation of Eurodollar Loans, 11:00 a.m. at least three Business Days prior to the proposed date of such conversion or continuation, specifying in each case:

 

  (1) the proposed date of conversion or continuation;

 

  (2) the aggregate amount of Loans to be converted or continued;

 

  (3) the type of Loans resulting from the proposed conversion or continuation; and

 

  (4) in the case of conversion into, or continuation of, Eurodollar Loans, the duration of the requested Interest Period therefor.

(c) If upon expiration of any Interest Period applicable to any Eurodollar Loan, the Borrower has failed to timely select a new Interest Period to be applicable to such Eurodollar Loan, the Borrower shall be deemed to have elected to continue such Eurodollar Loan as a Eurodollar Loan with a one-month Interest Period, effective on the last day of the previous Interest Period.

(d) The Administrative Agent will promptly notify each Lender of its receipt of a notice of conversion or continuation pursuant to this Section 2.2.3 or, if no timely notice is provided by the Borrower, of the details of any automatic conversion.

(e) Unless the Required Lenders otherwise consent, the Borrower may not elect to have a Loan converted into or continued as a Eurodollar Loan during the existence of any Event of Default or Unmatured Event of Default.

 

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2.3 Incremental Term Loans .

(a) The Borrower may, from time to time after the Effective Date, by written notice to the Administrative Agent elect to request the making of tranches of term loans (each, an “ Incremental Term Loan ”) in an aggregate amount not to exceed an amount equal to (i) the result of (x) $100,000,000 minus (y) any amounts incurred under Section 10.8(n) (this clause (i), the “ Incremental Free and Clear Amount ”) plus (ii) the maximum amount at the time of such proposed Incremental Term Loans that could be incurred such that both immediately before and after giving pro forma effect to such Incremental Term Loans and the application of the proceeds thereof (and assuming such Incremental Term Loans are fully drawn), the Total First Lien Leverage Ratio does not exceed 3.50 to 1.00 as of the last date for which financial statements have been (or are required to have been) delivered to the Administrative Agent pursuant to Section 10.3(a) or 10.3(b) (this clause (ii), the “ Incremental Ratio-Based Amount ”). Incremental Term Loans may be incurred under either or both the Incremental Free and Clear Amount and the Incremental Ratio-Based Amount in a single transaction, and proceeds from any such incurrence under more than one of the foregoing may be utilized in a single transaction, at the election of the Borrower, by first calculating the incurrence under the Incremental Ratio-Based Amount and then calculating the incurrence under the Incremental Free and Clear Amount.

(b) Any such request shall (x) be in a minimum amount of $10,000,000 or a higher integral multiple of $1,000,000 (or such lower amount that represents the remaining availability under either of the limits set forth in subsection (a) above) and (y) set forth the date that the Borrower proposes the Incremental Term Loans be made, the requested amount and the proposed terms of the Incremental Term Loans.

(c) To achieve the full amount of the requested tranche of Incremental Term Loans and subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld), the Borrower may invite additional Eligible Assignees to provide Incremental Term Loans or request an existing Lender to provide an Incremental Term Loan (any Person providing an Incremental Term Loan, each an “ Incremental Lender ”).

(d) The Administrative Agent and the Borrower shall determine the effective date (the “ ITL Effective Date ”) and the final allocation of the tranche of Incremental Term Loans. The Administrative Agent shall promptly notify the Borrower and the Lenders of each Incremental Term Loan and the ITL Effective Date.

(e) The Incremental Term Loans shall (i) rank pari passu in right of payment and of security with all other Loans, (ii) not mature earlier than the scheduled maturity of the Loans or have a weighted average life that is shorter than the then remaining weighted average life of the Loans, (iii) be entitled to share in prepayments pro rata with the Loans (unless the Incremental Lenders agree to take a lesser share of certain prepayments), (iv) be treated no more favorably than the Loans with respect to any mandatory prepayments set forth in Section 6.2.3 , (v) have an All-in Yield determined by the Borrower and the Incremental Lenders; provided , however , that the All-in Yield applicable to each issuance of Incremental Term Loans shall not be greater than 0.50% over the applicable All-in Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Loans unless the interest rate with respect to the Loans is increased so as to cause the then-applicable All-in Yield under this Agreement on the Loans to equal the All-in Yield then applicable to the Incremental Term Loans less 0.50%, (vi) have an amortization schedule determined by the Borrower and the Incremental Lenders and (vii) have other terms and conditions (other than with respect to pricing,

 

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amortization and maturity) substantially similar to the Loans (and, in any event, reasonably satisfactory to the Administrative Agent) which shall be set forth in a supplement to this Agreement executed in connection therewith. The aforementioned supplement to this Agreement may, without the consent of any Lender that is not an Incremental Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.3 , notwithstanding anything to the contrary set forth in Section 13.1 .

(f) The making of the Incremental Term Loans shall be documented pursuant to a supplement to this Agreement executed by the Borrower, each applicable Incremental Lender and the Administrative Agent and shall be subject to the following conditions:

(i) at the time of any such request and at the time of the making of the Incremental Term Loans (and after giving effect thereto and the use of the proceeds thereof), no Unmatured Event of Default or Event of Default shall have occurred and be continuing;

(ii) each condition set forth in Sections 11.1.21 and 11.1.22 shall have been met; and

(iii) such other conditions as the Borrower, the applicable Incremental Lenders and the Administrative Agent shall agree shall have been met.

(g) The Incremental Term Loans, shall constitute Loans under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents and shall, without limiting the foregoing, benefit equally and ratably with respect to the security interests created by the Collateral Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent or the Collateral Agent to ensure and/or demonstrate that the Lien and security interests granted by the Collateral Documents continue to be perfected under the Uniform Commercial Code (as defined in the Security Agreement) or other applicable law relating to the perfection of security interests after giving effect to the establishment of the Incremental Term Loans.

(h) No Lender shall be obligated to provide any Incremental Term Loan.

2.4 Extensions .

(a) The Borrower may, by written notice to the Administrative Agent from time to time, request an extension (each, an “ Extension ”) of the maturity date of any class of Loans to the extended maturity date specified in such notice. Such notice shall (i) set forth the amount of the applicable class of Loans that will be subject to the Extension (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 (or the remaining amount of such class of Loans)), (ii) set forth the date on which such Extension is requested to become effective (which shall be not less than ten (10) Business Days nor more than sixty (60) days after the date of such Extension notice (or such longer or shorter periods as the Administrative Agent shall agree in its sole discretion)) and (iii) identify the relevant class of Loans to which such Extension relates. Each Lender of the applicable class shall be offered (an “ Extension Offer ”) an opportunity to participate in such Extension on a pro rata basis and on the same terms and conditions as each other Lender of such class pursuant to procedures established by, or

 

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reasonably acceptable to, the Administrative Agent and the Borrower. No Lender shall be obligated to participate in any such Extension. If the aggregate principal amount of Loans in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Loans, as applicable, subject to the Extension Offer as set forth in the Extension notice, then the Loans, as applicable, of Lenders of the applicable class shall be extended ratably up to such maximum amount based on the respective principal amounts with respect to which such Lenders have accepted such Extension Offer.

(b) The following shall be conditions precedent to the effectiveness of any Extension: (i) no Unmatured Event of Default or Event of Default shall have occurred and be continuing immediately prior to and immediately after giving effect to such Extension, (ii) the representations and warranties set forth in Section 9 and in each other Loan Document shall be deemed to be made and shall be true and correct in all material respects on and as of the effective date of such Extension, and (iii) the terms of such Extended Loans shall comply with paragraph (c) of this Section.

(c) The terms of each Extension shall be determined by the Borrower and the applicable extending Lenders and set forth in an Extension Amendment; provided that (i) the final maturity date of any Extended Loan shall be no earlier than the existing maturity date of the class of Loans being extended, respectively, (ii)(A) there shall be no scheduled amortization of the loans and (B) the average life to maturity of the Extended Loans shall be no shorter than the remaining average life to maturity of the existing Loans being extended, (iii) the Extended Loans will rank pari passu in right of payment and with respect to security with the existing Loans and the borrower and guarantors of the Extended Loans, as applicable, shall be the same as the Borrower and Guarantors with respect to the existing Loans, as applicable, (iv) the interest rate margin, rate floors, fees, original issue discount and premium applicable to Extended Loans shall be determined by the Borrower and the applicable extending Lenders, (v) the Extended Loans may participate on a pro rata or less than pro rata (but not greater than pro rata) basis in voluntary or mandatory prepayments with the other Loans, and (vi) the terms of the Extended Loans, as applicable, shall be substantially identical to the terms set forth herein (except as set forth in clauses (i) through (v) above).

(d) In connection with any Extension, the Borrower, the Administrative Agent and each applicable extending Lender shall execute and deliver to the Administrative Agent an Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extension. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension. Any Extension Amendment may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to implement the terms of any such Extension, including any amendments necessary to establish Extended Loans as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new class or tranche (including to preserve the pro rata treatment of the extended and non-extended classes or tranches), in each case on terms consistent with this section, notwithstanding anything to the contrary set forth in Section 13.1 .

 

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2.5 Refinancing Loans .

(a) The Borrower may, by written notice to the Administrative Agent from time to time, request Replacement Loans to refinance all or a portion of any existing class of Loans (the “ Refinanced Loans ”) in an aggregate principal amount not to exceed the aggregate principal amount of the Refinanced Loans plus any accrued interest, fees, costs and expenses related thereto (including any original issue discount or upfront fees). Such notice shall set forth (i) the principal amount of the applicable Replacement Loans (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 (or the remaining amount of such class of Loans))) and (ii) the date on which the applicable Replacement Loans are to be incurred (which shall not be less than ten Business Days nor more than sixty days after the date of such notice (or such longer or shorter periods as the Administrative Agent shall agree)). The Borrower may seek Replacement Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any additional Persons that meet the requirements of an Eligible Assignee.

(b) It shall be a condition precedent to the incurrence of any Replacement Loans that (i) no Unmatured Event of Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to the incurrence of such Replacement Loans, (ii) the representations and warranties set forth in Section 9 and in each other Loan Document shall be true and correct in all material respects on and as of the date such Replacement Loans are made, (iii) the terms of the Replacement Loans shall comply with paragraph (c) of this Section and (iv) substantially concurrently with the incurrence of any such Replacement Loans, 100% of the net cash proceeds thereof shall be applied to repay the Refinanced Loans (including accrued interest, fees and premiums (if any) payable in connection therewith).

(c) The terms of any Replacement Loans shall be determined by the Borrower and the applicable Lenders and set forth in a Refinancing Amendment; provided that (i) the aggregate principal amount of such Replacement Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans plus any accrued interest, fees, costs and expenses related thereto (including any original issue discount or upfront fees), (ii) the final maturity date of any Replacement Loans shall not be earlier than the maturity or termination date of the applicable Refinanced Loans, (iii) the weighted average life to maturity of the Replacement Loans shall be no shorter than the remaining weighted average life to maturity of the Refinanced Loans, (iv) if the Refinanced Loans were pari passu in right of payment and of security with the Loans, the Replacement Loans may rank pari passu in right of payment and of security with the Loans or may be secured on junior lien basis or be unsecured; if the Refinanced Loans were secured on a junior basis to the Loans, the Replacement Loans may be secured on a junior basis to the Loans or unsecured; and if the Refinanced Loans were unsecured, the Replacement Loans will be unsecured, (v) none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party (unless such Person is required to become a Loan Party in accordance with Section 10.24 ), (vi) the interest rate margin, rate floors, fees, original issue discount and premiums applicable to the Replacement Loans shall be determined by the Borrower and the applicable Lenders, provided that the All-in Yield on any Replacement Loans shall not exceed the initial All-in Yield for the Refinanced Loans, and (vii) the terms of the Replacement Loans (other than as set forth in clause (i) through (vi)  above) shall be substantially identical to, or no more favorable (taken as a whole) to the Lenders providing such Replacement Loans than those applicable to such Refinanced Loans, except to the extent necessary to provide for covenants and other terms applicable to any period occurring entirely after the latest final maturity of the Loans

 

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in effect immediately prior to such refinancing; provided , however , to the extent that any financial maintenance covenant is added for the benefit of any Replacement Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the corresponding existing Loans; provided , further , that the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such amendment implementing this additional financial maintenance covenant upon the Borrower’s request for such an amendment.

(d) In connection with any Replacement Loans pursuant to this Section 2.5 , the Borrower, the Administrative Agent and each applicable Lender providing Replacement Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (such amendment, a “ Refinancing Amendment ”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Replacement Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.5 , including any amendments necessary to establish the applicable Replacement Loans as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such classes or tranches (including, if desirable, to preserve the pro rata treatment of the refinanced and non-refinanced tranches), in each case on terms consistent with this Section 2.5 , notwithstanding anything to the contrary set forth in Section 13.1 .

2.6 Commitments Several . The failure of any Lender to make a Loan shall not relieve any other Lender of its obligation (if any) to make a Loan on such date, but no Lender shall be responsible for the failure of any other Lender to make any Loan to be made by such other Lender.

SECTION 3 RECORDKEEPING. Each Lender shall record in its records the date and amount of each Loan made by such Lender, each repayment or conversion thereof and, in the case of each Eurodollar Loan, the dates on which each Interest Period for such Loan shall begin and end. The aggregate unpaid principal amount so recorded shall be rebuttable presumptive evidence of the principal amount of the Loans owing to such Lender. The failure to so record any such amount or any error in so recording any such amount shall not, however, limit or otherwise affect the obligations of the Borrower hereunder to repay the principal amount of each Loan made by such Lender together with all interest accruing thereon.

SECTION 4 INTEREST.

4.1 Interest Rates . The Borrower promises to pay interest on the unpaid principal amount of each Loan for the period commencing on the date such Loan is advanced until such Loan is paid in full as follows:

(a) at all times such Loan is a Base Rate Loan, at a rate per annum equal to the sum of (i) the Base Rate from time to time in effect plus (ii) the applicable Base Rate Margin from time to time in effect;

 

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(b) at all times such Loan is a Eurodollar Loan, at a rate per annum equal to the sum of (i) the Eurodollar Rate applicable to each Interest Period for such Loan plus (ii) the applicable Eurodollar Margin from time to time in effect;

provided that, at any time an Event of Default exists, the interest rate applicable to each Loan, fees and other Obligations hereunder shall be increased by 2% per annum (and with respect to fees and other Obligations, at a rate per annum equal to the rate that would be applicable to a Base Rate Loan plus 2.00% per annum).

4.2 Interest Payment Dates . Accrued interest on each Base Rate Loan shall be payable in arrears on the last Business Day of each calendar quarter and at maturity. Accrued interest on each Eurodollar Loan shall be payable on the last day of each Interest Period relating to such Loan (and, in the case of a Eurodollar Loan with an Interest Period longer than three months, on each three-month anniversary of the first day of such Interest Period) and at maturity. After maturity, accrued interest on all Loans shall be payable on demand.

4.3 Setting and Notice of Eurodollar Rates . The applicable Eurodollar Rate for each Interest Period shall be determined by the Administrative Agent, and notice thereof shall be given by the Administrative Agent promptly to the Borrower and each Lender. Each determination of the applicable Eurodollar Rate by the Administrative Agent shall be conclusive and binding upon the parties hereto, in the absence of manifest error. The Administrative Agent shall, upon written request of the Borrower or any Lender, deliver to the Borrower or such Lender a statement showing the computations used by the Administrative Agent in determining any applicable Eurodollar Rate hereunder.

4.4 Computation of Interest . All determinations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed. All other computations of interest shall be computed for the actual number of days elapsed on the basis of a year of 360 days (which results in more interest being paid than if computed on the basis of a 365-day year). The applicable interest rate for each Base Rate Loan shall change simultaneously with each change in the Base Rate.

SECTION 5 FEES. The Borrower agrees to pay to the Administrative Agent and the Lead Arrangers such fees as are mutually agreed to in writing from time to time by the Borrower, the Administrative Agent and the Lead Arrangers.

SECTION 6 REPAYMENT OF LOANS; PREPAYMENTS.

6.1 Repayment of Loans . The Loans shall be repaid in installments on the last day of each Fiscal Quarter beginning with the first full Fiscal Quarter after the Effective Date in an aggregate amount equal to 0.25% of the principal amount of the Loans made on the Effective Date (as adjusted from time to time pursuant to Section 6.2, and as adjusted in connection with the making of any Incremental Term Loans pursuant to Section 2.3 , any Extension pursuant to Section 2.4 or Replacement Loans pursuant to Section 2.5 ), with a final installment payable on the Maturity Date in an amount equal to the then unpaid principal balance of the Loans. Each such installment shall be applied to repay the Loans of the Lenders according to their respective Applicable Percentages.

 

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6.2 Prepayments .

6.2.1 Voluntary Prepayments . The Borrower may from time to time prepay Loans in whole or in part, without premium or penalty (other than as set forth in Sections 6.2.2 and 6.3 ); provided that the Borrower shall give the Administrative Agent (which shall promptly advise each applicable Lender) notice thereof not later than 11:00 a.m. on the date of such prepayment in the case of a Base Rate Loan and upon three Business Days’ prior notice in the case of a Eurodollar Loan, substantially in the form of Exhibit F , specifying the Loans to be prepaid and the date (which shall be a Business Day) and amount of prepayment. Each partial prepayment of Loans shall be in a principal amount of $1,000,000 or a higher integral multiple of $100,000.

6.2.2 Prepayment Fee . In the event that the Borrower (i) voluntarily prepays any Loans (including pursuant to Section 6.2.1 ), (ii) prepays any Loans pursuant to Section 6.2.3(c) or (iii)  refinances or replaces any of the Loans (including without limitation, as may be effected through any amendment to the Loan Documents, including any Refinancing Amendment), in each case of clause (i), (ii) and (iii), on or prior to the eighteen (18) month anniversary of the Effective Date, the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender, together with each such prepayment, refinancing or replacement of the Loans, a premium in an amount equal to the principal amount of the Loans prepaid multiplied by 1.0%.

6.2.3 Mandatory Prepayments .

(a) If the Borrower and its Subsidiaries have Excess Cash Flow for any Cash Flow Period starting with the Fiscal Year ending December 31, 2018, then within 90 days after the end of such Fiscal Year, the Borrower shall make a prepayment of the outstanding Loans in an amount equal to 50% of Excess Cash Flow for such Cash Flow Period; provided that if the Total First Lien Leverage Ratio as of the end of any Fiscal Year is greater than or equal to 3.75 to 1.00, the amount of such prepayment shall be increased to 75% of Excess Cash Flow for such Cash Flow Period. Voluntary prepayments made during any Cash Flow Period pursuant to Section 6.2.1 shall be credited on a dollar-for-dollar basis against the amount of mandatory prepayments required to be paid under this clause (a)  with respect to such Cash Flow Period.

(b) Upon receipt by the Borrower or any Subsidiary of any Asset Sale Proceeds or Recovery Event Proceeds (including receipt thereof by the Collateral Agent if the Collateral Agent receives any such proceeds pursuant to any Collateral Document) in excess of $20,000,000 per event or series of related events, the Borrower shall, no later than the fifth Business Day following receipt of such proceeds make a prepayment of the outstanding Loans in an amount equal to such Asset Sale Proceeds or Recovery Event Proceeds; provided that, so long as no Event of Default or Unmatured Event of Default exists, no such prepayment shall be required to the extent the Borrower notifies the Administrative Agent prior to or concurrently with receipt of such Asset Sale Proceeds or Recovery Event Proceeds that such proceeds will be used (and such proceeds are in fact used by the Borrower or the applicable Subsidiary within 12 months after the date of receipt of such proceeds or, if the Borrower or the applicable Subsidiary enters into a contractually binding commitment to use such proceeds, within 18 months after the date of receipt of such proceeds) for the financing of the replacement, substitution or restoration of the assets subject to the applicable Asset Sale or Casualty Event or the

 

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acquisition or construction of other capital assets otherwise not prohibited under this Agreement (it being understood that if at any time the Borrower or the applicable Subsidiary determines that any such proceeds will not be so used within such 12 month period or 18 month period, as applicable, such proceeds shall promptly be applied as provided above in this clause (b) ).

(c) Subject to Section 6.2.2 , upon receipt by the Borrower or any Subsidiary of the net cash proceeds from the issuance or incurrence of Debt (other than any cash proceeds from the issuance or incurrence of Debt permitted pursuant to Section 10.8 ), the Borrower shall, no later than the fifth Business Day following the receipt of such proceeds, make a prepayment of the outstanding Loans in an amount equal to 100% of such proceeds.

6.2.4 Pro Rata Treatment . All payments (including prepayments) pursuant to this Section 6 shall be applied to pay the Loans of the Lenders ratably in accordance with their Applicable Percentages.

6.3 All Prepayments of Eurodollar Loans . Each prepayment of a Eurodollar Loan on a day other than the last day of an Interest Period therefor shall include interest on the principal amount being repaid and shall be subject to Section 8.4 .

6.4 All Prepayments of Loans . Each prepayment of Loans shall be applied to amortization payments in the inverse order of maturity, and to any outstanding Base Rate Loans first, and then to any outstanding Eurodollar Loans with the shortest Interest Periods remaining in the order that will minimize funding losses required to be paid pursuant to Section 8.4 .

SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.

7.1 Making of Payments . All payments of principal of or interest on the Loans, and of all fees, shall be made by the Borrower to the Administrative Agent in immediately available funds, without setoff, defense, recoupment or counterclaim, at the office specified by the Administrative Agent not later than 12:00 noon on the date due (or such later time as the Administrative Agent may agree); and funds received after that hour shall be deemed to have been received by the Administrative Agent on the next following Business Day. Subject to Section 7.6 , the Administrative Agent shall promptly remit to each Lender its share of all such payments received in collected funds by the Administrative Agent for the account of such Lender. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. All payments under Section 8.1 shall be made by the Borrower directly to the Lender entitled thereto.

 

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7.2 Application of Payments . If following a payment by the Borrower under Section 6.1 , insufficient funds are available to the Administrative Agent to pay in full all amounts then due hereunder, then payments hereunder (and all payments under any Guaranty and amounts realized upon enforcement of any Collateral Document) shall be applied as follows:

first , to amounts payable to the Agents pursuant to Section 14.5 (which amounts shall be retained by each Agent for its own account except to the extent it has previously been reimbursed therefor by one or more Lenders, in which case such amounts shall be remitted ratably to such Lenders to reimburse them for their respective reimbursement payments);

second , ratably to pay (i) accrued and unpaid interest on the Loans and (ii) accrued and unpaid fees under Section 5 ;

third , ratably to pay principal of the Loans, in each case regardless of whether any such amount is then due;

fourth , ratably to all other unpaid obligations of the Loan Parties hereunder or under any other Loan Document; and

fifth , to the Borrower or as a court of competent jurisdiction may direct.

For purposes of the foregoing paragraph, (A) “ratably” means, with respect to any amount to be applied pursuant to clause first , second , third or fourth , pro rata to each holder of the applicable obligations in accordance with the aggregate amount of such obligations held by each such holder.

Concurrently with each remittance to any Lender of its share of any payment pursuant hereto, the Administrative Agent shall advise such Lender as to the application of such payment.

7.3 Due Date Extension . If any payment of principal or interest with respect to any of the Loans falls due on a day which is not a Business Day, then such due date shall be extended to the immediately following Business Day (unless, in the case of a Eurodollar Loan, such immediately following Business Day is the first Business Day of a calendar month, in which case such date shall be the immediately preceding Business Day) and, in the case of principal, additional interest shall accrue and be payable for the period of any such extension.

7.4 Setoff . The Borrower agrees that each Agent and each Lender have all rights of setoff and bankers’ lien provided by applicable law, and in addition thereto, the Borrower agrees that at any time any Event of Default exists, each Agent, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, may set off and apply to the payment of any obligations of the Borrower, whether or not then due, now or hereafter existing under this Agreement or any other Loan Document to such Agent, such Lender or such Affiliates, any balances, credits, deposits (general or special, time or demand, provisional or final, in whatever currency), accounts or moneys of the Borrower then or thereafter held with such Agent, such Lender or such Affiliates and other obligations (in whatever currency) at any time owing by such Agent, such Lender or any such Affiliate, to or for the credit or the account of the Borrower, irrespective of whether or not such Agent, such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Agent or such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness. The

 

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rights of each Agent, each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Agent, such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

7.5 Proration of Payments . If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of offset or otherwise, but excluding any payment pursuant to Section 8.3 , 8.7 or 14.7 ) on account of principal of or interest on any of its Loans in excess of its pro rata share (in accordance with the terms of this Agreement) of payments and other recoveries obtained by all Lenders on account of principal of and interest on their respective Loans then held by them, such Lender shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) from the other Lenders such participation in the Loans held by them, or make such other adjustments as shall be equitable, as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided that (i) if any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this section shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant), as to which the provision of this paragraph shall apply. The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

7.6 Taxes .

7.6.1 Payments Free of Withholding . Except as otherwise required by law and subject to Sections 7.6.2 and 7.6.4 , each payment by the Borrower under this Agreement or the other Loan Documents shall be made without withholding or deduction for or on account of any present or future Taxes imposed by or within the jurisdiction in which the Borrower is domiciled, any jurisdiction from which the Borrower makes any payment, or (in each case) any political subdivision or taxing authority thereof or therein, other than (a) income or franchise Taxes imposed upon or determined by reference to the overall net income of the recipient and (b) branch profits Taxes, in each case (a) and (b), imposed as a result of the Administrative Agent or such Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (c) Taxes imposed as a result of a connection between the Administrative Agent or such Lender and the taxing jurisdiction other than a connection arising solely under this Agreement or any other Loan Document (the Taxes described in (a), (b) and (c), collectively, “ Excluded Taxes ”). If any such withholding or deduction is so required, the Borrower shall make the withholding, pay the amount withheld to the appropriate Governmental Authority before penalties attach thereto or interest accrues thereon, and forthwith pay such additional amount, if any, as may be necessary to ensure that the net amount actually received by each Lender and the Administrative Agent free and clear of such Taxes (including such Taxes on such additional amount) is equal to the amount which such Lender or the Administrative Agent

 

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(as the case may be) would have received had such withholding or deduction not been made. If the Administrative Agent or any Lender pays any such Taxes or penalties or interest thereon, it shall deliver official tax receipts evidencing that payment or certified copies thereof or other reasonably satisfactory evidence of such payment to the Borrower who shall reimburse the Administrative Agent or such Lender for that payment on demand in the currency in which such payment was made. If the Borrower pays any such Taxes or penalties or interest thereon, it shall deliver official tax receipts evidencing that payment or certified copies thereof or other reasonably satisfactory evidence of such payment to the applicable Lender or the Administrative Agent on whose account such withholding was made (with a copy to the Administrative Agent if not the recipient of the original) on or before the thirtieth day after payment. The Borrower shall indemnify each Lender and Administrative Agent, within 10 days after demand therefor, for the full amount of any Taxes (other than Excluded Taxes) (including Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Lender or Administrative Agent or required to be withheld or deducted from a payment to such Lender or Administrative Agent and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

7.6.2 U.S. Withholding Tax Exemptions . Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower and the Administrative Agent on or before the date the initial Credit Extension is made hereunder or, if later, the date such Person becomes a Lender hereunder, two duly completed and signed copies of (a) Form W-8BEN or W-8BEN-E (relating to such Lender and entitling it to a complete exemption from withholding under the Code on all amounts to be received by such Lender, including fees, pursuant to the Loan Documents and the obligations thereunder), Form W-8ECI (relating to all amounts to be received by such Lender, including fees, pursuant to the Loan Documents and the obligations thereunder) of the IRS or to the extent such Lender is not the beneficial owner, executed copies of Form W-8IMY, accompanied by Form W-8ECI, Form W-8BEN or W 8BEN-E, a certificate substantially in the form of Exhibit I , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable, establishing a complete exemption from withholding under the Code on all amounts received by such beneficial owner including fees, pursuant to the Loan Documents and the obligations thereunder; provided that if the Lender is a partnership and one or more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such Lender may provide a certificate substantially in the form of Exhibit I on behalf of each such direct and indirect partner or (b) solely if such Lender is claiming exemption from United States withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a Form W-8BEN or W-8BEN-E, or any successor form prescribed by the IRS, and a certificate substantially in the form of Exhibit I entitling it to a complete exemption from withholding under the Code on all amounts to be received by such Lender, including fees, pursuant to the Loan Documents and the obligations thereunder. Upon any Lender changing its Lending Office, such Lender shall submit to the Borrower and the Administrative Agent additional duly completed and signed copies of one or the other of such Forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities), and, in addition, from time to time each Lender shall submit to the Borrower and the Administrative Agent such additional duly completed and signed copies of one or the other of such Forms (or such successor forms as shall be adopted from time to time by the

 

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relevant United States taxing authorities) and such other certificates as may be (i) reasonably requested by the Borrower in a notice, directly or through the Administrative Agent, to such Lender and (ii) required under then current United States law or regulations to avoid or reduce United States withholding Taxes on payments in respect of all amounts to be received by such Lender, including fees, pursuant to the Loan Documents or the obligations thereunder. Upon the request of the Borrower or the Administrative Agent, each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower and the Administrative Agent a completed Form W-9 to the effect that it is such a United States person.

7.6.3 Inability of Lender to Submit Forms . If any Lender determines that, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof, in each case occurring after the date hereof, it is unable to submit to the Borrower or the Administrative Agent any form or certificate that such Lender is obligated to submit pursuant to Section 7.6.2 or that such Lender is required to withdraw or cancel any such form or certificate previously submitted or any such form or certificate otherwise becomes ineffective or inaccurate, such Lender shall promptly notify the Borrower and Administrative Agent of such fact and such Lender shall to that extent not be obligated to provide any such form or certificate and will be entitled to withdraw or cancel any affected form or certificate, as applicable.

7.6.4 No Requirement to Pay Additional Amount . The Borrower shall not be required to pay any additional amount with respect to Taxes (including penalties or interest thereon) pursuant to Section 7.6.1 to any Lender or the Administrative Agent with respect to any Lender if (a) the obligation to pay such additional amount would not have arisen but for a failure by such Lender to comply with its obligations under Section 7.6.2 , or (b) in the case of an Assignee, to the extent the Borrower would not have been obligated to pay such additional amount to the assignor Lender, except to the extent the obligation of the Borrower to pay such excess additional amount to the Assignee resulted solely from a change in applicable law occurring after the date of the relevant assignment.

7.6.5 Refunds . If any Lender or the Administrative Agent determines in its sole discretion that it has received a refund in respect of any Taxes as to which additional amounts have been paid to it by the Borrower pursuant to Section 7.6.1 , it shall promptly pay to the Borrower an amount equal to such refund (but only to the extent of additional amounts, penalties or interest paid by the Borrower under Section 7.6.1 with respect to the Taxes giving rise to such refund) without interest (other than interest included in such refund by the relevant taxing authority attributable thereto), net of all reasonable, documented out-of-pocket expenses of such Lender or the Administrative Agent; provided that the Borrower, upon the request of any Lender or the Administrative Agent agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant taxing authority) to such Lender or the Administrative Agent in the event that such Lender or the Administrative Agent is required to repay such refund to such taxing authority. This Section 7.6.5 shall not be construed to require any Lender or the Administrative Agent to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person.

7.6.6 Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any

 

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Taxes attributable to such Lender’s failure to comply with the provisions of Section 14.7.2 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 7.6.6 .

7.7 Evidence of Indebtedness . Upon the request of any Lender, the Borrower shall execute and deliver to such Lender a note in customary form payable to such Lender, which shall evidence such lender’s Loans hereunder.

SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS.

8.1 Increased Costs . (a) If, on or after the date hereof, any Change in Law:

(i) shall subject any Lender (or its Lending Office) to any Tax, duty or other charge with respect to any Eurodollar Loans or such Lender’s obligation to make Eurodollar Loans, or shall change the basis of taxation of payments to any Lender (or its Lending Office) of the principal of or interest on any Eurodollar Loan or any other amount due under this Agreement or any other Loan Document in respect of any Eurodollar Loan or such Lender’s obligation to make Eurodollar Loans (except for Excluded Taxes) or amounts indemnified under Section 7.6.1 above); or

(ii) shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement (including any such requirement imposed by the FRB, but excluding any such requirement for which a Lender is compensated pursuant to the operation of the formula in the definition of “Eurodollar Rate”) against assets of, deposits with or for the account of, or credit extended by, any Lender (or its Lending Office), or shall impose on any Lender (or its Lending Office) or on the interbank market any other condition affecting any Eurodollar Loan or such Lender’s obligation to make Eurodollar Loans;

and the result of any of the foregoing is to increase the cost to such Lender (or its Lending Office) of making, converting to, continuing or maintaining any Eurodollar Loan or to reduce the amount of any sum received or receivable by such Lender (or its applicable Lending Office) under this Agreement or under any other Loan Document with respect thereto, by an amount deemed by such Lender to be material, then, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall be obligated to pay to such Lender such additional amount as will compensate such Lender for such increased cost or reduction with respect to the Eurodollar Loans; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 8.1(a) for any increased costs incurred or reductions

 

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suffered more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof).

(b) If, on or after the date hereof, any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, has the effect of reducing the rate of return on such Lender’s or such holding company’s capital as a consequence of such Lender’s obligations hereunder to a level below that which such Lender or such holding company could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity) by an amount deemed by such Lender to be material, then from time to time, within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower agrees to pay to such Lender such additional amount as will compensate such Lender for such reduction; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 8.1(b) for any reductions suffered more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof).

(c) Any demand by a Lender under this Section 8.1 shall be accompanied by a certificate of such Lender setting forth the additional amount or amounts to be paid to it hereunder, which shall be conclusive absent manifest error. In determining such amount, any Lender may use any reasonable averaging and attribution method.

8.2 Basis for Determining Interest Rate Inadequate or Unfair . If on or prior to the first day of any Interest Period for any Borrowing of Eurodollar Loans:

(a) the Administrative Agent determines that deposits in Dollars (in the applicable amounts) are not being offered to it in the interbank eurodollar market for such Interest Period, or that by reason of circumstances affecting the interbank eurodollar market adequate and reasonable means do not exist for ascertaining the applicable Eurodollar Base Rate, or

(b) the Required Lenders advise the Administrative Agent that (i) the Eurodollar Base Rate as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Lenders of funding their Eurodollar Loans for such Interest Period or (ii) that the making or funding of Eurodollar Loans become impracticable,

then the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders and, until the Administrative Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, all Loans shall be converted to Base Rate Loans at the end of the applicable Interest Period.

8.3 Changes in Law Rendering Eurodollar Loans Unlawful . Notwithstanding any other provision of this Agreement or any other Loan Document, if at any time after the date hereof any Change in Law makes it unlawful for any Lender to make or continue to maintain any Eurodollar

 

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Loan or to perform its obligations with respect to Eurodollar Loans as contemplated hereby, such Lender shall promptly give notice thereof to the Borrower and such Lender’s obligations to make or maintain Eurodollar Loans under this Agreement shall be suspended until it is no longer unlawful for such Lender to make or maintain Eurodollar Loans. The Borrower shall prepay on demand the outstanding principal amount of any such affected Eurodollar Loans, together with all interest accrued thereon and all other amounts then due and payable to such Lender under this Agreement; provided that, subject to all of the terms and conditions of this Agreement, the Borrower may then elect to borrow the principal amount of the affected Eurodollar Loans as Base Rate Loans, which Base Rate Loans shall not be made ratably by the Lenders but only by such affected Lender.

8.4 Funding Losses . The Borrower hereby agrees that upon demand by any Lender (which demand shall be accompanied by a statement in reasonable detail setting forth the basis for the amount being claimed, a copy of which shall be furnished to the Administrative Agent), the Borrower will be obligated to indemnify such Lender against any net loss or expense which such Lender may sustain or incur (including any net loss or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund or maintain any Eurodollar Loan, but excluding any loss of anticipated profits), as reasonably determined by such Lender, as a result of (a) any payment, prepayment or conversion (including any conversion pursuant to Section 8.3 ) by the Borrower of any Eurodollar Loan of such Lender on a date other than the last day of an Interest Period for such Loan or (b) any failure of the Borrower to borrow or continue, or to convert any Loan into, a Eurodollar Loan on a date specified therefor in a notice of borrowing, continuation or conversion pursuant to this Agreement. For this purpose, all notices to the Administrative Agent pursuant to this Agreement shall be deemed to be irrevocable.

8.5 Right of Lenders to Fund through Other Offices . Subject to Section 8.7 , each Lender may, at its option, elect to make its Loans hereunder at the branch, office or affiliate specified on the appropriate signature page hereof (each a “ Lending Office ”) for each type of Loan available hereunder or at such other of its branches, offices or affiliates as it may from time to time elect and designate in a notice to the Borrower and the Administrative Agent.

8.6 Discretion of Lenders as to Manner of Funding . Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its funding of its Loans in any manner it sees fit, it being understood, however, that for purposes of this Agreement all determinations hereunder shall be made as if such Lender had actually funded and maintained each Eurodollar Loan during each Interest Period for such Loan through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the Eurodollar Rate for such Interest Period.

8.7 Mitigation of Circumstances . (a) Each Lender shall promptly notify the Borrower and the Administrative Agent of any event of which it has knowledge that will result in, and will use reasonable commercial efforts available to it (and not, in such Lender’s good faith judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by the Borrower to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstance of the nature described in Section 8.2 or 8.3 (and, if any Lender has given notice of any such event described in clause (i)  or (ii)  above and thereafter such event ceases to exist, such Lender shall promptly so notify the Borrower and the Administrative Agent). To the extent

 

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reasonably possible, a Lender shall designate an alternative branch or funding office with respect to its Loans to reduce any liability of the Borrower with respect to such Lender under Section 7.6 or 8.1 or to avoid the unavailability of Eurodollar Loans under Section 8.3 , so long as such designation is not otherwise disadvantageous to the Lender.

(b) Replacement of Lenders . If any Lender requests compensation under Section 7.6 or 8.1 or is subject to a circumstance of the nature described in Section 8.2 or 8.3 , and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 8.7(a) , or if any Lender is a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, (x) require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 14.7 ), all of its interests, rights (other than its existing rights to payments pursuant to Section 7.6 , 8.1 , 8.2 or 8.3 ) and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment) or (y) prepay the Loans and all other Obligations owing and outstanding to such Lender, including interest and unpaid fees and amounts payable pursuant to Sections 6.2.2 , 7.7 and 8 ; provided that:

(i) the Borrower or assignee shall have paid to the Administrative Agent the assignment fee specified in Section 14.7.1 ;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 8.4 ) from the assignee (to the extent of such outstanding principal and accrued interest) or the Borrower (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for compensation under this Section 8 , such assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with applicable laws; and

(v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent;

provided , further that a Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

8.8 Conclusiveness of Statements; Survival of Provisions . Determinations and statements of any Lender pursuant to Section 8.1 , 8.2 , 8.3 or 8.4 shall be conclusive absent manifest error. Lenders may use reasonable averaging and attribution methods in determining compensation under Sections 8.1 and 8.4 , and the provisions of such Sections shall survive the termination of this Agreement.

 

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SECTION 9 REPRESENTATIONS AND WARRANTIES.

To induce the Agents and the Lenders to enter into this Agreement and to induce the Lenders to make Loans hereunder, the Borrower represents and warrants, as to itself and its Subsidiaries, to the Agents and the Lenders that:

9.1 Corporate Existence; Subsidiaries; Foreign Qualification .

(a) The Borrower and each Subsidiary is duly organized, validly existing and in good standing under the laws of its state or jurisdiction of incorporation or organization. The Borrower and each Subsidiary is duly qualified and authorized to do business and is in good standing as a foreign entity in the jurisdictions where the character of its property or its business activities makes such qualification necessary, except with regard to jurisdictions where the failure to be so qualified or organized, or to be in good standing, as a foreign entity would not have a Material Adverse Effect.

(b) Schedule 9.1 sets forth, as of the Effective Date, each Subsidiary, its state of formation, its relationship to the Borrower, including the percentage of each class of stock (or membership interests) owned by the Borrower or such Subsidiary, the Borrower or Subsidiary that owns the stock or other Equity Interest of such Subsidiary, the location of its chief executive office and its principal place of business.

9.2 Corporate Authority; Enforceability; No Conflict . Each Loan Party has the right and power and is duly authorized and empowered to enter into, execute and deliver the Loan Documents to which it is a party and to perform and observe the provisions of the Loan Documents. The Loan Documents to which each Loan Party is a party have been duly authorized and approved by such Loan Party’s Governing Body have been duly executed and delivered by such Loan Party, and are the legal, valid and binding obligations of such Loan Party, enforceable against such Loan Party in accordance with their respective terms, except insofar as such enforcement may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws relating to or affecting the enforcement of creditors’ rights generally and/or (b) general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or in equity. The execution, delivery and performance of the Loan Documents will not (i) conflict with, result in any breach in any of the provisions of, constitute a default under, or result in the creation of any Lien (other than Permitted Liens) upon any assets or property of the Borrower or any Subsidiary, under the provisions of, such Person’s Organizational Documents or any material agreement to which such Person is a party or (ii) violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award that is applicable to or binding on any Loan Party.

9.3 Compliance with Laws .

9.3.1 Generally . The Borrower and each Subsidiary:

(a) holds all material permits, certificates, licenses, orders, registrations, franchises, authorizations, and other approvals from any Governmental Authority necessary for the conduct of its business and is in material compliance with all applicable laws relating thereto;

 

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(b) is in material compliance with all material Federal, state, local, or foreign applicable statutes, rules, regulations, and orders including those relating to terms and conditions of employment, including but not limited to, labor relations and collective bargaining, wages and hours, leave laws, workers’ compensation, unemployment compensation, immigration, income tax, notice for plant closings and mass layoffs, occupational safety and health, and equal employment practices; and

(c) except for defaults that would not reasonably be expected to result in any material consequence, is not in violation of or in default under any material agreement to which it is a party or by which any material portion of its assets is subject or bound.

9.4 Litigation and Administrative Proceedings . Except as disclosed on Schedule 9.4 , there are, to the knowledge of the Borrower and its Subsidiaries, (a) no lawsuits, actions, investigations, or other proceedings pending or threatened against the Borrower or any Subsidiary, and in respect of which the Borrower or any Subsidiary may have any material liability, in any court or before any Governmental Authority, arbitration board, or other tribunal, (b) no orders, writs, injunctions, judgments, or decrees of any court or government agency or instrumentality to which the Borrower or any Subsidiary is a party or by which any asset of the Borrower or any Subsidiary is bound which would result in any material liability to or material limitation on the business activities or would have a Material Adverse Effect on the ability of the Borrower or its Subsidiaries to perform hereunder or under the other Loan Documents and (c) no material grievances, disputes, arbitrations, unfair labor practice charges or controversies outstanding with or involving any union or other organization of the employees of the Borrower or any Subsidiary, or material threats of work stoppage, slowdown, strike, picketing, or pending demands for collective bargaining, or material demands or petitions filed for recognition or certification of a collective bargaining representative.

9.5 Title to Assets . (a) The Borrower and each Subsidiary has good title to and ownership of all Material Property it purports to own, which property is free and clear of all Liens, except for Permitted Liens.

(b) Schedule 9.5 sets forth a complete and accurate list of all owned real estate that is required to be subject to Mortgages and all other Material Property that is real property owned or leased by the Borrower and each of its Subsidiaries, and shows as of the Effective Date the street address, county or other relevant jurisdiction, state, record owner, lessor (if applicable). The Borrower and each of its Subsidiaries has good, marketable and insurable fee simple title to such owned real estate that is required to be subject to Mortgages and all other Material Property that is real property owned, or a valid leasehold interest in the Material Property that is real property leased, by such Loan Party or such Subsidiary, free and clear of all Liens, other than Permitted Liens.

9.6 No Default . No Event of Default or Unmatured Event of Default exists or would result from the incurring of any obligations by any Loan Party under any Loan Document or from the grant or perfection of the Liens of the Collateral Agent and the Lenders on the Collateral in accordance with the Collateral Documents.

 

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9.7 Tax Returns . All Federal and all material state, provincial and local Tax returns and other reports required by law to be filed in respect of the income, business, properties and employees of the Borrower and its Subsidiaries have been filed and all Taxes, assessments, fees and other governmental charges that are due and payable have been paid, except as otherwise permitted herein; and the provision for Taxes on the books of the Borrower and its Subsidiaries (on a consolidated basis) have been made in accordance with GAAP.

9.8 Environmental Laws . Except as disclosed in Schedule 9.8 , (i) the Borrower and each Subsidiary is in material compliance with all applicable Environmental Laws; (ii) no material litigation or proceeding arising under, relating to or in connection with any Environmental Law is pending or, to the best knowledge of any officer of the Borrower or any Subsidiary, threatened, against the Borrower or any Subsidiary, in connection with any real property in which the Borrower or any Subsidiary holds or has held an interest or any past or present operation of the Borrower or any Subsidiary; and (iii) no material release, threatened release, reportable release or disposal of Hazardous Materials is occurring, or has occurred on, under or to any real property owned or leased by the Borrower or any Subsidiary without having been remediated sufficiently to avoid material liability to the Borrower or such Subsidiary. As used in this Section 9.8 , “litigation or proceeding” means any demand, claim, notice, suit, suit in equity, action, administrative action, investigation or inquiry whether brought by any Governmental Authority or private Person, or otherwise.

9.9 Continued Business . There exists no actual, pending or, to the knowledge of the Borrower, threatened termination, cancellation or limitation of, or modification or change in the business relationship of the Borrower or any Subsidiary and any customer, or any group of customers, which termination, cancellation, limitation, modification or change, if realized, would reasonably be expected to have a Material Adverse Effect, and there exists no present condition or state of facts or circumstances that would reasonably be expected to have a Material Adverse Effect.

9.10 Employee Benefits Plans . Each ERISA Plan is in compliance in all material respects with all applicable requirements of ERISA, the Code and other applicable law. Except as would not reasonably be expected to have a Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur. The minimum funding standards under Section 302 of ERISA and Section 412 of the Code have been satisfied with respect to each Pension Plan, and no waiver of such minimum funding standards has been applied for or obtained with respect to any Pension Plan. As of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430 of the Code) is 60% or higher and no facts or circumstances exist with respect to any Loan Party or ERISA Affiliate that could reasonably be expected to cause the funding target attainment percentage to drop below such threshold as of the next valuation date.

9.11 Consents or Approvals . Except as contemplated by the Loan Documents, no consent, approval or authorization of, or filing, registration or qualification with, any Governmental Authority or any other Person is required to be obtained or completed by the Borrower or any Subsidiary in connection with the execution, delivery or performance of any Loan Document that has not already been obtained or completed.

9.12 Solvency . The Loan Parties have received consideration that is the reasonable equivalent value of the obligations and liabilities that the Loan Parties have incurred to the Administrative Agent and the Lenders. No Loan Party is insolvent (as defined in any applicable

 

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state, Federal or relevant foreign statute) or will be rendered insolvent by the execution and delivery of the applicable Loan Documents and the consummation of the transactions contemplated thereby. No Loan Party is engaged or about to engage in any business or transaction for which the assets retained by it are or will be an unreasonably small amount of capital, taking into consideration the obligations to the Administrative Agent and the Lenders incurred hereunder. No Loan Party intends to, or believes that it will, incur debts beyond its ability to pay such debts as they mature.

9.13 Financial Condition . (a) (i) The audited consolidated financial statements of the Borrower for the Fiscal Year ended December 31, 2016 and the unaudited consolidated financial statements of the Borrower for the Fiscal Quarters ended March 31, 2017 and June 30, 2017, copies of which have been delivered to the Administrative Agent, are true and complete in all material respects and fairly present the financial condition of the Borrower and its consolidated Subsidiaries as of the dates of such financial statements and the results of their operations for the periods then ending; and (ii) no event or circumstance has occurred since December 31, 2016 that constitutes or would reasonably be expected to have a Material Adverse Effect.

(b) Since December 31, 2016, there has been no material change in the Borrower’s accounting procedures, except in accordance with or as permitted by GAAP.

9.14 Regulations . Neither the Borrower nor any Subsidiary owns or is carrying any Margin Stock or is engaged principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. The making of any Loan (or any conversion thereof) will not violate, or be inconsistent with, the provisions of Regulation T, U or X of the FRB or any other regulation of the FRB.

9.15 Intellectual Property . Except as set forth on Schedule 9.15 , the Borrower and its Subsidiaries owns or has the right to use all of the material patents, patent applications, industrial designs, trademarks, service marks, copyrights and licenses, if any, and rights with respect to the foregoing, necessary for the conduct of its business and, except as would not reasonably be expected to have a Material Adverse Effect, without any known conflict with the rights of others.

9.16 Insurance . The Borrower and each Subsidiary maintains with financially sound and reputable insurers insurance with coverage and limits as required by law and as is customary with Persons engaged in the same businesses as the Borrower and its Subsidiaries. Schedule 9.16 sets forth all insurance carried by the Borrower and its Subsidiaries on the Effective Date, setting forth in detail the amount and type of such insurance.

9.17 Deposit Accounts . Schedule 9.17 lists all banks and other financial institutions at which the Borrower or any Subsidiary maintains deposit, securities or other similar accounts as of the Effective Date, and Schedule 9.17 correctly identifies, as of the Effective Date, the name and address of each depository or other financial institution, the name in which each such account is held, a description of the purpose of the account, and the complete account number therefor.

9.18 Accurate and Complete Statements . Neither the Loan Documents nor the written statements made by any Loan Party in connection with any of the Loan Documents, taken as a whole, contain any untrue statement of a material fact or omits a material fact necessary to make

 

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the statements contained therein or in the Loan Documents not misleading. As of the Effective Date, after due inquiry by the Borrower and its Subsidiaries, there is no fact known to the Borrower or any Subsidiary that has not been disclosed to the Administrative Agent and the Lenders that has had or is likely to have a Material Adverse Effect.

9.19 Investment Company Act, etc . None of the Borrower or any Subsidiary is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.

9.20 Liens and Security Interests . As of the Effective Date, except for Permitted Liens, (a) there is and will be no Lien outstanding covering any personal property of the Borrower or any Subsidiary, (b) there is and will be no mortgage outstanding covering any interest in real property held by the Borrower or any Subsidiary and (c) no interest in real or personal property held by the Borrower or any Subsidiary is subject to any Lien of any kind. The Collateral Agent has a valid and enforceable first priority security interest in the Collateral (subject to Permitted Liens) to the extent contemplated by the Collateral Documents. As of the Effective Date, none of the Borrower or any Subsidiary has entered into any contract or agreement (other than a contract or agreement entered into in connection with any Debt permitted solely by Section 10.8(b) or (c)  to finance the purchase or lease of fixed assets that prohibits Liens on such fixed assets) that exists at the Effective Date that would prohibit the Collateral Agent or the Lenders from acquiring a first priority perfected Lien on, or a collateral assignment of, any of the property or assets of the Borrower or any Subsidiary to the extent contemplated by the Collateral Documents.

9.21 Material Agreements . Except as disclosed on Schedule 9.21(a) , as of the Effective Date, none of the Borrower or any Subsidiary is a party to any contract, agreement, understanding, or arrangement that if violated, breached, or terminated for any reason, would be reasonably expected to have a Material Adverse Effect. All intercompany agreements related to agribusiness, marketing, hedging and distribution, including such agreements entered into between the Borrower or any Subsidiary or another Affiliate performing similar services for the Borrower or such Subsidiary, are disclosed on Schedule 9.21(b) and were entered into on terms no less favorable to the Borrower or such Subsidiary than those that might be obtained at the time in a transaction with a non-Affiliate.

9.22 Anti-Bribery, Anti-Corruption and Anti-Money Laundering . No Loan Party nor any of its Subsidiaries, directors or officers, or, to the best knowledge of such Loan Party, any Affiliate, agent or employee of it, has engaged in any activity or conduct which would violate in any material respect any applicable, anti-bribery, anti-corruption or anti-money laundering laws or regulations in any applicable jurisdiction and such Loan Party has instituted and maintains policies and procedures designated to prevent violation of such laws, regulations and rules.

9.23 Foreign Corrupt Practices Act . No part of the proceeds of the Loans shall be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the “ FCPA ”) or any other applicable anti-corruption laws.

 

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9.24 Sanctions Laws . No Loan Party nor any of its Subsidiaries, their respective directors and officers, or, to the knowledge of such Loan Party, any Affiliate, agent or employee of such Loan Party or any of its Subsidiaries is an individual or entity, that is, or is owned 50 percent or more or controlled by, individually or in the aggregate, directly or indirectly, entities that are: (i) the subject or target of any Sanctions (a “ Sanctioned Person ”) or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such government, country, or territory (a “ Sanctioned Country ”), including, currently, Cuba, Iran, Burma, North Korea, Sudan and Syria.

SECTION 10 COVENANTS.

Until all obligations of the Loan Parties hereunder and under the other Loan Documents are paid in full, the Borrower shall, and shall cause its Subsidiaries to:

10.1 Insurance; Maintenance of Property . (a) Maintain, and cause each Subsidiary to maintain, (i) insurance upon its personal and real property, whether owned or leased, in such form, written by such companies, for such periods, and against such risks and in amounts customarily insured against or carried by corporations engaged in the same or substantially similar business and similarly situated, with provisions reasonably satisfactory to the Administrative Agent for payment of all losses under applicable policies to the Administrative Agent (including a lender loss payee endorsement in favor of the Collateral Agent) and (ii) liability insurance (including an endorsement naming the Administrative Agent, the Collateral Agent and each Lender as an additional insured), written by such companies, for such periods, and against such risks and in amounts customarily insured against or carried by corporations engaged in the same or substantially similar business and similarly situated, and, if required by the Administrative Agent, deposit copies of such policies with the Administrative Agent; and use commercially reasonable efforts to cause each policy of insurance to provide for no less than 10 days’ prior written notice to the Administrative Agent of cancellation of a policy due to non-payment of a premium and no less than 30 days’ prior written notice to the Administrative Agent of cancellation for any other reason. Any sums received by the Collateral Agent in payment of insurance losses, returns, or unearned premiums under the property policies, including any amounts received with respect to Owned Real Property, shall be used by the Borrower and its Subsidiaries to replace, rebuild and/or restore the damaged property or similar property used or useful in the business of the Borrower and its Subsidiaries (or, to the extent not so used, applied to prepay Loans). If the Borrower or any Subsidiary fails to provide such insurance, the Administrative Agent may, at its option, provide such insurance and the Borrower shall pay to the Administrative Agent, upon demand, the cost thereof; provided that the Administrative Agent shall give the Borrower no less than 15 Business Days’ notice during which time the Borrower may procure such insurance. If the Borrower fails to pay such sum to the Administrative Agent upon demand, interest shall accrue thereon, from the date of demand until paid in full, at the Base Rate plus the Base Rate Margin. Within 10 days of the Administrative Agent’s written request, the Borrower shall furnish to the Administrative Agent such information about the insurance of the Borrower and its Subsidiaries as the Administrative Agent may from time to time reasonably request, which information shall be prepared in form and detail satisfactory to the Administrative Agent and certified by a Responsible Financial Officer of the Borrower. During the continuance of an Event of Default hereunder, the Borrower and each Subsidiary irrevocably appoints the Administrative Agent as its attorney in fact to make a claim for, receive payment of, and execute and endorse documents, checks or drafts received in payment for loss or damage under any insurance policy.

 

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(b) Maintain and preserve, and cause each Subsidiary to maintain and preserve, all property that is used or useful in its business in good working order and condition, ordinary wear and tear excepted, and 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.

10.2 Payment and Performance of Obligations . (a) Pay, and cause each Subsidiary to pay, in full (i) prior in each case to the date when penalties would attach, all Federal and all material state, local and foreign Taxes and other assessments, governmental charges and levies (except only those so long as and to the extent that the same shall be contested in good faith by appropriate and timely proceedings and for which adequate provisions have been established in accordance with GAAP) for which it may be or become liable or to which any of its properties may be or become subject, (ii) all of its wage obligations to its employees in compliance with the Fair Labor Standards Act (29 U.S.C. §§ 206 207) or any comparable provisions of applicable law; and (b) perform, and cause each Subsidiary to perform, all of its obligations under any contract, agreement, understanding, or arrangement, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.

10.3 Financial Statements and other Information . Deliver to the Administrative Agent (for distribution to the Lenders):

(a) Annual Financials and Audit Report . Within 90 days after the end of each Fiscal Year (beginning with Fiscal Year 2017), an annual audit report of the Borrower and its Subsidiaries for such Fiscal Year prepared on a consolidated basis and in accordance with GAAP and certified by KPMG or another independent public accountant, which report shall (A) be without qualification as to going concern, scope or internal controls, (B) include balance sheets and statements of income (loss), stockholders’ equity and cash-flow for such Fiscal Year and (C) set forth in comparative form the consolidated figures for the preceding Fiscal Year; provided , that the furnishing of the annual report of the Borrower on Form 10-K for such Fiscal Year, as filed with the SEC, will satisfy the Borrower’s obligation under Section 10.3(a) .

(b) Quarterly Financials . Within 45 days after the end of each Fiscal Quarter (or, in the case of the last Fiscal Quarter of any Fiscal Year, within 90 days after the end of such Fiscal Quarter), financial statements of the Borrower and its Subsidiaries, each prepared on a consolidated basis and in accordance with GAAP (subject to the absence of footnotes and to normal year-end adjustments), including balance sheets as of the end of such period and statements of income (loss), and cash flow for such Fiscal Quarter and Fiscal Year to date periods and in form and detail reasonably consistent with the quarterly financial statements delivered pursuant to Section 11.1.15 and certified by a Responsible Financial Officer of the Borrower, and setting forth in comparative form the consolidated figures for (i) the corresponding Fiscal Quarter of the previous Fiscal Year and (ii) the corresponding Fiscal Year to date period; provided , that the furnishing of the quarterly report of the Borrower on Form 10-Q for such Fiscal Quarter, as filed with the SEC will satisfy the Borrower’s obligation under this Section 11.3(b) with respect to such Fiscal Quarter.

 

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(c) Compliance Certificate; Management Reports; MD&A . Concurrently with the delivery of its annual and quarterly financial statements pursuant to clauses (a) and (b) above, (i) a compliance certificate substantially in the form of Exhibit G as of the date of such annual or quarterly statements, signed by a Responsible Financial Officer of the Borrower, containing (A) a computation of each of the financial ratios set forth in Section 10.7 , including computations of (x) EBITDA and (y) Term Loan First Lien EBITDA, and (B) a statement that such Responsible Financial Officer has not become aware of the existence of any Event of Default or Unmatured Event of Default or, if there is any such event, describing it and the steps, if any, being taken to cure it; and (ii) a copy of management’s discussion and analysis of financial condition and results of operations of the Borrower and its Subsidiaries as of the end of, and for the period covered by, such annual or quarterly financial statements, prepared in a form reasonably satisfactory to the Administrative Agent (provided that the management discussion and analysis filed with the SEC, if any, for the applicable period shall be satisfactory to the Administrative Agent).

(d) Budget . Not later than 60 days after the beginning of each Fiscal Year, an operating budget of the Borrower and its Subsidiaries for such Fiscal Year in a form reasonably satisfactory to the Administrative Agent.

(e) Certain Notices . Promptly upon any Responsible Officer of the Borrower becoming aware of any of the following, a notice describing the same accompanied by a written statement by a Responsible Officer of the Borrower describing in reasonable detail the occurrence referred to therein (and, in the case of any notice under clause (i)  below, describing with particularity the provisions of this Agreement or any other Loan Document that have been breached or violated) and stating what action the Borrower or the applicable Subsidiary has taken or proposes to take with respect thereto:

(i) the occurrence of any Event of Default or Unmatured Event of Default;

(ii) any dispute, litigation, investigation, proceeding or suspension that may exist at any time between the Borrower or any Subsidiary and any Governmental Authority that could reasonably be expected to have a Material Adverse Effect, or any other event or condition, in each case, that could reasonably be expected to result in any material liability to the Borrower or any Subsidiary;

(iii) any Change in Control or the occurrence of any event or execution of any binding agreement or binding commitment which, with the passage of time, would lead to a Change in Control;

(iv) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary (x) in which the amount of damages claimed is $10,000,000 (or its equivalent in another currency or currencies) or more, (y) in which injunctive or similar relief is sought and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, or (z) in which the relief sought is an injunction or other stay of the performance of this Agreement or any Loan Document;

 

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(v) the occurrence of any ERISA Event and with such information as specified in Section 10.6(c) ;

(vi) the preparation of any environmental audit or review with respect to the Borrower or any of its Subsidiaries which indicates any violation or potential violation of any Environmental Law or which reflects any condition which could reasonably be expected to result in material liability to the Borrower or any Subsidiary; and

(vii) any other event or occurrence that could reasonably be expected to have a Material Adverse Effect.

(f) Information . Promptly upon written request of the Administrative Agent or any Lender through the Administrative Agent, such other information about the financial condition, properties and operations of the Borrower or any Subsidiary as the Administrative Agent or such Lender may from time to time reasonably request, which information shall be submitted in form and detail reasonably satisfactory to the Administrative Agent or such Lender and, if requested, shall be certified by a Responsible Financial Officer of the Borrower or such Subsidiary.

(g) Material Agreements . Concurrently with the delivery of each compliance certificate pursuant to Section 10.3(c) , notification that the Borrower or any Subsidiary has become a party to any contract, agreement, understanding, or arrangement not heretofore disclosed that if violated, breached, or terminated for any reason, would be reasonably expected to have a Material Adverse Effect.

(h) SEC Filings . Promptly, and in any event within five Business Days (i) after receipt thereof by any the Borrower or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof and (ii) after filing with the SEC, copies of each annual report, proxy or other report or communication sent to stockholders of the Borrower and copies of all annual, regular, periodic and special reports and registration statements filed with the SEC; provided , that such filings shall be deemed delivered to the Administrative Agent on the earlier of the date such statements or reports are available at (i)  www.sec.gov and (ii) the Borrower’s website at www.gpreinc.com .

10.4 Financial Records . Maintain, and cause each Subsidiary to maintain, at all times books and records that are accurate and complete in all material respects and that are sufficient to prepare financial statements in accordance with GAAP.

10.5 Franchises; Change in Business or Fiscal Year; Business of the Borrower .

(a) Except as otherwise permitted pursuant to Section 10.13 , the Borrower shall, and shall cause each Subsidiary to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises necessary or desirable in the conduct of its business, except to the extent failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

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(b) Not, and not permit any Subsidiary to, engage in any business if, as a result thereof, the general nature of the business of the Borrower and its Subsidiaries taken as a whole would be substantially changed from the general nature of the business the Borrower and its Subsidiaries are engaged in on the Effective Date, or, in the case of any ABL Borrower and its Subsidiaries, the business of and the types of assets owned or operated by such ABL Borrower and its Subsidiaries would be substantially changed from the nature of the business of, or the types of assets owned and operated by, such ABL Borrower and its Subsidiaries on the Effective Date.

(c) Not change its Fiscal Year.

(d) Except to the extent expressly permitted by this Agreement, the Borrower shall not:

(i) conduct any business or operations, act in a capacity other than as a holding company of Equity Interests in its Subsidiaries, or make any investment in any material asset (other than investments in cash and Cash Equivalent Investments); or

(ii) transfer, assign, hypothecate, pledge (or otherwise encumber), sell, convey or otherwise dispose of any assets (whether voluntarily or involuntarily), except (A) for dispositions of cash and Cash Equivalents or (B) to the Collateral Agent.

10.6 ERISA Compliance .

(a) Not, and not permit any other Loan Party or ERISA Affiliate to, incur any material liability to the PBGC or fail to make any minimum required contribution (under section 430 of the Code) with respect to any Pension Plan that would reasonably be expected to result in a Lien on the assets of any Loan Party.

(b) Promptly notify the Lenders of any material Taxes, fines or penalties assessed, proposed to be assessed or that any Loan Party has reason to believe may be assessed any Loan Party by the IRS or the Department of Labor with respect to any Pension Plan as a result of a violation of the Code or ERISA.

(c) As soon as practicable, and in any event within 20 days after any Loan Party shall become aware that an ERISA Event shall have occurred, provide, or cause the applicable Loan Party or ERISA Affiliate to provide, the Administrative Agent with notice of such ERISA Event with a certificate by a Responsible Financial Officer of the Loan Party or ERISA Affiliate setting forth the details of the event and the action the Loan Party or ERISA Affiliate proposes to take with respect thereto.

(d) At the request of any Lender through the Administrative Agent, deliver or cause to be delivered to the Administrative Agent, true and correct copies of any documents relating to any Pension Plan.

As used in this Section 10.6 , “material” means the measure of a matter of significance that shall be determined as being an amount equal to 5% of EBITDA of the Borrower and its Subsidiaries on a consolidated basis for the preceding 12-month period.

 

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10.7 Financial Covenants .

10.7.1 Maximum Term Debt to Total Term Capitalization . Not permit the ratio of (a) Total Term Debt of the Borrower and its Subsidiaries on a consolidated basis to (b) Total Term Capitalization, in each case, as of the last day of each Fiscal Quarter, to exceed 55.0% for such Fiscal Quarter.

10.7.2 Minimum Interest Coverage Ratio . Not permit the Interest Coverage Ratio of the Borrower and its Subsidiaries on a consolidated basis as of the end of each Fiscal Quarter to be less than 1.25 to 1.00.

10.7.3 Equity Cure . Cash proceeds from the equityholders of the Borrower with respect to a sale of, or contribution to, equity (which equity shall be common equity, “qualified” preferred equity or other equity other than Disqualified Stock of the Borrower) of the Borrower made after the Effective Date and on or prior to the date that is 10 Business Days after the date on which financial statements are required to be delivered pursuant to Section 10.3(a) or 10.3(b) with respect to any Fiscal Quarter (the “ Cure Date ”) (and such cash proceeds shall not have been applied or used for any other purpose (including, without limitation, as an increase to or usage of the Available Amount pursuant to the definition thereof or to effectuate an equity cure pursuant to this section in any other Fiscal Quarter), and are not restricted for any purpose and remain available in accounts of the Borrower) may, by written notice from the Borrower to the Administrative Agent prior to the Cure Date, be included in the calculation of EBITDA for the applicable 12 month period for the purposes of determining compliance with the covenant set forth in Section 10.7.2 at the end of such Fiscal Quarter and applicable subsequent periods that include such Fiscal Quarter (any such equity contribution so included in the calculation of EBITDA, a “ Specified Equity Contribution ”); provided that (a) a Specified Equity Contribution shall be counted only as EBITDA and solely for the purpose of compliance with the covenant set forth in Section 10.7.2 and shall not be included for any other purpose with respect to any Fiscal Quarter in which it is included in EBITDA, (b) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with the financial covenants, (c) there shall be no more than five (5) Specified Equity Contributions made during the term of this Agreement and no more than two (2) Specified Equity Contributions made during any four consecutive Fiscal Quarters, (d) there shall be no pro forma reduction in Debt as a result of any prepayments of Debt with the proceeds of any Specified Equity Contribution for determining compliance with the covenant under Section 10.7.1 or 10.7.2 as of and for the Fiscal Quarter with respect to which such Specified Equity Contribution is made; provided that such Specified Equity Contribution shall reduce Debt in future fiscal quarters to the extent used to prepay any applicable Debt, and (e) for the avoidance of doubt, any cash proceeds from any sale of, or contribution to, such equity that are not applied as a Specified Equity Contribution in respect of any Fiscal Quarter and are not applied or used for any purpose may be available in future Fiscal Quarters for use as a Specified Equity Contribution, subject to the terms and conditions above.

10.8 Debt . Not, and not permit any Subsidiary to, create, incur or have outstanding any Debt of any kind, other than:

(a) the Loans, the Incremental Term Loans and any other Debt under this Agreement;

 

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(b) any loan or extension of credit granted to or Capitalized Lease Obligation of the Borrower or any Subsidiary for the purchase or lease of fixed assets or improvements thereto (and refinancings of such loans, extensions of credit or Capitalized Lease Obligations so long as the principal amount is not increased and any Lien granted in connection therewith does not attach to any additional property), which loans, extensions of credit and Capitalized Lease Obligations shall only be secured by the fixed assets being purchased, leased or improved, so long as the aggregate principal amount of all such loans, extensions of credit and Capitalized Lease Obligations and Permitted Refinancings thereof does not exceed $25,000,000 at any time outstanding;

(c) Debt existing on the Effective Date and listed on Schedule 10.8 and Permitted Refinancings thereof;

(d) intercompany Debt owing (i) by a Subsidiary that is a Loan Party to any other Loan Party, (ii) by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party, (iii) by any Loan Party to any Subsidiary that is not a Loan Party so long as such Debt under this clause (iii) is unsecured and subordinated to the Obligations pursuant to subordination terms reasonably acceptable to the Administrative Agent, or (iv) by any Subsidiary that is not a Loan Party to any Loan Party to the extent permitted as an investments made pursuant to Section 10.12 ;

(e) Debt under any Surety Instrument entered into in the ordinary course of business;

(f) Guaranty Obligations of (i) any Loan Party with respect to Debt of another Loan Party permitted to be incurred by such Loan Party under this Section 10.7 , (ii) any Subsidiary that is not a Loan Party with respect to Debt of any other Subsidiary and (iii) of any Loan Party with respect to Debt of any Subsidiary that is not a Loan Party so long as such Guaranty Obligations are treated as an investment and otherwise made in compliance with Section 10.12 ;

(g) (i) Debt under the ABL-Cattle Credit Documents not exceeding the commitments thereunder in effect on the Effective Date plus increases to the commitments thereunder after the Effective Date so long as the borrowing base remains comprised of the same types of assets that comprise the borrowing base thereunder on the Effective Date or new categories of working capital assets and the advance rates against the borrowing base thereunder do not exceed the advance rates in effect on the Closing Date (unless any change thereto is expressly permitted by Section 10.21(d)(iv) ), to the extent such Debt is subject to the ABL-Cattle Intercreditor Agreement, and Permitted Refinancings thereof, (ii) Debt under the ABL-Grain Credit Documents not exceeding the commitments thereunder in effect on the Effective Date plus increases to the commitments thereunder after the Effective Date so long as the borrowing base remains comprised of the same types of assets that comprise the borrowing base thereunder on the Effective Date or new categories of working capital assets and the advance rates against the borrowing base thereunder do not exceed the advance rates in effect on the Closing Date (unless any change thereto is expressly permitted by Section 10.21(d)(iv) ), to the extent such Debt is subject to the ABL-Grain Intercreditor Agreement, and Permitted Refinancings thereof, and (iii) Debt under the ABL-Trade Credit Documents not exceeding the commitments thereunder in effect on the Effective Date plus increases to the commitments thereunder after the Effective Date so long as the borrowing base remains comprised of the same types of assets that comprise the borrowing base thereunder on the Effective Date or new categories of working capital assets and the advance rates against the borrowing base thereunder do not exceed the advance rates in effect on the Closing Date (unless any change thereto is expressly permitted by Section 10.21(d)(iv) ), to the extent such Debt is subject to the ABL-Trade Intercreditor Agreement, and Permitted Refinancings thereof;

 

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(h) obligations under Hedging Agreements entered into in the ordinary course of business and reasonably related to the operations of the Borrower and its Subsidiaries permitted by Section 10.5 ;

(i) (i) Debt under the 2018 Convertible Notes, the 2022 Convertible Notes and any Permitted Refinancing thereof, and (ii) obligations in connection with a Permitted Bond Hedge Transaction or Permitted Warrant Transaction;

(j) Subordinated Debt; provided that, (i) on a pro forma basis immediately after giving effect to each such incurrence and the application of proceeds therefrom, the Borrower shall be in pro forma compliance with each of the financial covenants set forth in Sections 10.7.1 and 10.7.2 for the Fiscal Quarter most recently completed prior to such incurrence, (ii) at the time of and immediately after giving effect to any incurrence of such Subordinated Debt, no Event of Default shall have occurred and be continuing or would result therefrom, (iii) such Subordinated Debt does not have a maturity date or any required principal payment that is prior to the date that is 91 days after latest maturity date then applicable to the Loans at the time such Debt is incurred;

(k) Debt outstanding from time to time under any revolving margin facility incurred in the ordinary course of business to finance liquidity needs arising in the ordinary course of business from hedging transactions permitted pursuant to Section 10.8(h) and related margin calls, in each case, which are unsecured or secured solely by the brokerage accounts of the Borrower and its Subsidiaries pertaining to such hedging transactions and have customary and arms’ length terms and conditions for such facilities;

(l) Debt under working capital facilities of Subsidiaries whose jurisdiction of organization is outside of the United States, any state, territory or other jurisdiction thereof so long as (i) such Subsidiaries are the only obligors in respect of such Debt and (ii) if secured, such facilities are secured exclusively by assets located (or receivables payable by an account debtor located) outside the United States;

(m) Debt assumed in connection with a Permitted Acquisition; provided that (i) such Debt exists at the time of such Permitted Acquisition and is not created or incurred in connection therewith or in contemplation thereof, (ii) no Loan Party (other than such Person so acquired in such Permitted Acquisition or any other Person that such Person merges with or that acquires assets of such Person in connection with such Permitted Acquisition) shall have any liability or other obligation with respect to such Debt and (iii) if such Debt is secured, no Lien thereon shall extend to or cover any other assets other than the assets acquired in such Permitted Acquisition (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or attach to any other property of any Loan Party;

 

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(n) other secured Debt of the ABL Borrowers in an aggregate principal amount not to exceed at any time outstanding an amount equal to (i) $25,000,000 minus (ii) any amounts incurred pursuant to the Incremental Free and Clear Amount;

(o) Debt of the ABL Borrowers and their respective Subsidiaries in an aggregate amount not to exceed $50,000,000 at any time secured by foreign receivables so long as such Debt (i) is permitted under such ABL Borrower’s ABL Facility, (ii) is not funded in reliance on receivables to the extent advances were made under such ABL Facility with respect to such receivables as a component of the borrowing base thereunder and such advances still remain outstanding and (iii) no Unmatured Event of Default or Event of Default has occurred or would occur after giving effect to the incurrence of such Debt;

(p) Debt of the ABL Borrowers and their respective Subsidiaries in respect of repurchase facilities for grain, natural gas, ethanol and crude oil inventory, so long as such repurchase facilities (i) are permitted under such ABL Borrower’s ABL Facility, (ii) are not funded in reliance on inventory to the extent advances were made under such ABL Facility with respect to such inventory as a component of the borrowing base thereunder and such advances still remain outstanding and (iii) no Unmatured Event of Default or Event of Default has occurred or would occur after giving effect to the incurrence of such Debt;

(q) unsecured Convertible Debt of the Borrower; provided that (i) such Convertible Debt matures no earlier than the date that is 91 days after the latest maturity date then applicable to the Loans at the time such Convertible Debt is incurred, (ii) such Convertible Debt does not require any scheduled amortization, mandatory prepayments, redemptions, sinking fund payments or purchase offers prior to the final maturity date thereof (other than pursuant to customary asset sale, change of control offers or fundamental change offers and pursuant to settlements upon conversion), (iii) such Convertible Debt is not guaranteed by any person, (iv) on a pro forma basis immediately after giving effect to each incurrence of such Convertible Debt and the application of proceeds therefrom, the Borrower shall be in pro forma compliance with each of the financial covenants set forth in Sections 10.7.1 and 10.7.2 for the Fiscal Quarter most recently completed prior to such incurrence, and (v) at the time of and immediately after giving effect to any incurrence of such Convertible Debt, no Event of Default shall have occurred and be continuing or would result therefrom; and

(r) other unsecured Debt of the Borrower and its Subsidiaries in an aggregate principal amount not to exceed $10,000,000 at any time outstanding.

10.9 Liens . Not, and not permit any Subsidiary to, create, assume or suffer to exist (upon the happening of a contingency or otherwise) any Lien upon any of its property or assets, whether now owned or hereafter acquired, other than the following (each a “ Permitted Lien ”):

(a) Liens for Taxes not yet due or that are being actively contested in good faith by appropriate proceedings and for which adequate reserves shall have been established in accordance with GAAP;

(b) other statutory Liens, including Liens of carriers, warehousemen, mechanics, repairmen, materialmen and landlords, (i) that are incidental to the conduct of its business or the ownership of its property and assets and are incurred in the ordinary course of business, (ii) so

 

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long as where the obligations secured thereby are not yet due or are being actively contested in good faith, (iii) for which adequate reserves have been established in accordance with GAAP, (iv) that do not in the aggregate materially detract from the value of its property or assets or materially impair the use thereof in the operation of its business, and (v) that were not incurred in connection with the borrowing of money or the obtaining of advances or credit;

(c) Liens on property or assets of a Subsidiary to secure obligations of such Subsidiary to a Loan Party;

(d) purchase money Liens on fixed assets securing Debt and Capitalized Lease Obligations permitted under Section 10.8(b) ; provided that any such Lien (i) is limited to the purchase price of the applicable assets or the cost of the improvements financed by such Debt or Capitalized Lease Obligations, (ii) only attaches to the property being acquired or leased with, or the cost of the improvements financed by, such Debt or Capitalized Lease Obligations and (iii) attached to such property concurrently with or within 90 days after the acquisition (or completion of construction or improvement) or refinancing thereof;

(e) Liens arising under the Loan Documents;

(f) Liens existing on the Effective Date and set forth on Schedule 10.9 and replacements, extensions, renewals, refundings or refinancings thereof, but only to the extent that the principal amount of obligations secured thereby shall not be increased from the amount outstanding on the Effective Date;

(g) (i) zoning restrictions, easements, rights of way, covenants, reservations, licenses, encroachments, variations or other minor defects or irregularities in title of, or affecting the use of, real property owned or leased by the Borrower or any Subsidiary that do not secure monetary obligations and are not interfering in any material respect with the use of such property in the ordinary conduct of the business of the Borrower or any Subsidiary, (ii) building codes and other land use laws regulating the use or occupancy of Owned Real Property or the activities conducted thereon which are imposed by any Governmental Authority having jurisdiction over such Owned Real Property which are not violated by the current use or occupancy of such Owned Real Property or the operation of the business of the Borrower and its Subsidiaries, and (iii) any other Lien or exception to coverage described in mortgagee policies of title insurance issued in favor of and accepted by the Collateral Agent with respect to any Owned Real Property;

(h) Liens arising in connection with any judgment that is not an Event of Default or Unmatured Event of Default hereunder;

(i) (i) non-exclusive licenses, non-exclusive sublicenses, leases or subleases granted by the Borrower or its Subsidiaries to other Persons not materially interfering with the conduct of the business of the Borrower or its Subsidiaries, provided that with respect to any lease or sublease, unless the Collateral Agent shall have given its prior written consent to such lease or sublease, such lease or sublease shall be expressly subordinated to the security interest of the Collateral Agent in the related property, and (ii) any interest or title of a lessor, sublessor or licensor under any lease or license agreement permitted by this Agreement to which the Borrower or its Subsidiaries is a party;

 

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(j) Liens arising from precautionary UCC financing statement filings regarding operating leases permitted hereunder;

(k) statutory and common law landlords’ liens under leases to which the Borrower or its Subsidiaries is a party; provided that such liens for material leases are subordinate to all liens in favor of the Collateral Agent;

(l) (A) Liens (other than Liens imposed under ERISA) incurred (including deposits made) in the ordinary course of business in connection with workers compensation claims, unemployment insurance and social security benefits and other types of social security and (B) Liens (including deposits made) securing the performance of bids, tenders, leases and contracts in the ordinary course of business, statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business and consistent with past practices (exclusive of obligations in respect of the payment for borrowed money); provided that, with respect to clauses (A) and (B), (i) such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings or orders entered in connection with such proceedings have the effect of preventing the forfeiture or sale of the property subject to any such Lien and (ii) to the extent such Liens are not imposed by applicable law, such Liens shall in no event encumber any property other than cash and Cash Equivalents;

(m) Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by the Borrower or its Subsidiaries in the ordinary course of business to the extent such Liens do not attach to any assets other than the goods subject to such arrangements;

(n) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or any Subsidiary, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank or banks with respect to cash management and operating account arrangements; and

(o) (i) Liens securing Debt under the ABL-Cattle Credit Documents so long as such Liens are subject to the ABL-Cattle Intercreditor Agreement, (ii) Liens securing Debt under the ABL-Grain Credit Documents so long as such Liens are subject to the ABL-Grain Intercreditor Agreement, and (iii) Liens securing Debt under the ABL-Trade Credit Documents so long as such Liens are subject to the ABL-Trade Intercreditor Agreement;

(p) Liens securing Debt permitted by Section 10.8(n) so long as such Liens are at all times subject to an ABL Intercreditor Agreement or other intercreditor agreement on terms reasonably satisfactory to the Administrative Agent;

(q) Liens securing Debt permitted by Section 10.8(k) ;

(r) Liens securing Debt permitted by Section 10.8(l) ;

(s) Liens securing Debt permitted by Section 10.8(m) ;

 

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(t) Liens on foreign receivables of the ABL Borrowers and their respective Subsidiaries securing Debt permitted by Section 10.8(o) ;

(u) Liens on grain, natural gas inventory, ethanol inventory and crude oil inventory of the ABL Borrowers and their respective Subsidiaries securing Debt permitted by Section 10.8(p) ; and

(v) additional Liens of the Borrower or any Subsidiary not otherwise permitted by this Section 10.9 that (w) were not incurred in connection with borrowed money, (x) do not encumber any assets of the Borrower or its Subsidiaries, the fair market value of which exceeds the amount of the Indebtedness or other obligations secured by such assets, (y) do not materially impair the use of such assets in the operation of the business of the Borrower or such Subsidiary and (z) do not secure obligations in excess of $10,000,000 in the aggregate for all such Liens at any time.

10.10 No Negative Pledges . Not, and not permit any Subsidiary to, enter into any contract or agreement that would prohibit the Administrative Agent, the Collateral Agent or the Lenders from acquiring a security interest, mortgage or other Lien on, or a collateral assignment of, any property or assets of the Borrower or any Subsidiary; provided that this Section 10.10 shall not prohibit (a) any contract or agreement entered into in connection with the issuance of any Debt that is permitted solely by Section 10.8(b) to finance the purchase, lease or improvement of fixed assets that prohibits Liens solely on such fixed assets or (b) the ABL-Cattle Credit Documents, the ABL-Grain Credit Documents or the ABL-Trade Credit Documents.

10.11 Regulations T, U and X . Not, and not permit any Subsidiary to, purchase or otherwise acquire any Margin Stock.

10.12 Investments, Loans and Guaranties . Not, and not permit any Subsidiary to, (a) make, acquire or hold any investment in any stocks, bonds or securities of any kind, (b) be or become a party to any joint venture or other partnership, (c) make or keep outstanding any advance or loan to any Person (other than accounts receivable arising in the ordinary course of business), or (d) incur any Guaranty Obligation, other than, with respect to any of the foregoing clauses (a)  through (d) :

(i) any endorsement of a check or other medium of payment for deposit or collection through normal banking channels or a similar transaction in the normal course of business;

(ii) Cash Equivalents;

(iii) investments (including loans and Guarantee Obligations) (A) by a Subsidiary that is a Loan Party in any other Loan Party, (B) by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party, or (C) by any Subsidiary that is not a Loan Party in any Loan Party;

(iv) (A) the holding of each of the Subsidiaries listed on Schedule 9.1 as of the Effective Date, and (B) the creation, acquisition and holding of any new Subsidiary after the Effective Date so long as such new Subsidiary shall have been created, acquired or held in accordance with the terms and conditions of this Agreement (including Sections 10.14 and 10.19 ) and investments therein to the extent permitted by this Section 10.12 (other than this clause (iv));

 

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(v) any Permitted Acquisition;

(vi) extensions of trade credit, prepaid expenses, the purchase of inventory, supplies, equipment and other assets, in each case by the Borrower or its Subsidiaries in the ordinary course of business and consistent with past practice;

(vii) investments (including loans) existing as of the Effective Date and described in Schedule 10.12 ;

(viii) investments after the Effective Date in JGP Energy Partners LLC in an aggregate amount not exceeding $15,000,000;

(ix) to the extent constituting an investment, transactions permitted under Section 10.13(g) ;

(x) any payments in connection with a Permitted Bond Hedge Transaction;

(xi) investments in a total amount after the Effective Date not to exceed the Available Amount; provided that, (A) after giving effect to any such investment, the pro forma Total First Lien Leverage Ratio is not greater than 4.00 to 1.00 and (B) at the time of and after giving effect to any such Restricted Payment, no Event of Default has occurred and is continuing or would result therefrom; and

(xii) other investments, advances, loans and Guaranty Obligations (including joint ventures) in an aggregate amount not exceeding $25,000,000 at any time outstanding.

10.13 Merger and Sale of Assets . Not, and not permit any Subsidiary to, merge, amalgamate or consolidate with any other Person, or sell, lease or transfer or otherwise dispose of any assets to any Person, other than in the ordinary course of business, including sales of inventory and leases, assignments and subleases of property, except that if no Event of Default or Unmatured Event of Default exists or would result therefrom:

(a) the Borrower or any Guarantor may merge or amalgamate with any other Guarantor (provided that the Borrower shall be the continuing or surviving Person in any such transaction involving the Borrower);

(b) any Guarantor may merge or consolidate with another Person (that is not a Loan Party) so long as (i) such Guarantor is the surviving entity, (ii) the Borrower continues to own, directly or indirectly, 100% of such Guarantor and (iii) such merger or consolidation constitutes a Permitted Acquisition;

(c) any Subsidiary (other than the Borrower) that has sold, transferred or otherwise disposed of all or substantially all of its assets in connection with an asset sale permitted under this Agreement and no longer conducts any active trade or business may be liquidated, wound up and dissolved;

 

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(d) sales, leases, transfers or other dispositions of assets to (i) any Loan Party, (ii) to any Subsidiary that is not a Loan Party by any other Subsidiary that is not a Loan Party, or (iii) to any Subsidiary that is not a Loan Party by any Loan Party, so long as the consideration received by such Loan Party is (x) for fair market value and on an arms-length basis or (y) treated as an Investment and otherwise made in compliance with Section 10.12 ;

(e) the Borrower or any Subsidiary may sell or otherwise dispose of inventory and Cash Equivalents in the ordinary course of business, grant non-exclusive licenses of intellectual property in the ordinary course of business, sell or discount past due or impaired accounts receivable for collection purposes (but not for factoring, securitization or other financing purposes), or liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;

(f) the Borrower or any Subsidiary may sell other assets so long as (i) at least 75% of the purchase price for such for such assets is paid in cash or Cash Equivalents, (ii) such assets are sold for their fair market value and on an arms-length basis, and (iii) the net proceeds received from the sale of such assets are applied in accordance with Section 6.2.3 (other than net cash proceeds from the sale of ownership interests in or the assets of BioProcess Algae LLC);

(g) the Borrower or any Subsidiary may sell MLP Qualifying Assets to MLP Subsidiaries so long as (i) the purchase price for such assets is paid in cash or Cash Equivalents or in Equity Interests in the MLP Subsidiaries (or any combination thereof), (ii) such assets are sold for their fair market value on terms substantially similar to those that would be obtained on an arms-length basis, and (iii) in the case of (x) net cash proceeds from the sale of such assets to MLP Subsidiaries that are received by the Borrower or its Subsidiaries within 180 days of the acquisition by the Borrower or such Subsidiary of such assets and (y) net cash proceeds from the sale of ownership interests in or the assets of JGP Energy Partners LLC to the MLP Subsidiaries, any such cash proceeds received from the MLP Subsidiaries in respect of such assets shall be deemed to have been applied to the acquisition cost of such assets and therefore not subject to mandatory prepayment pursuant to Section 6.2.3(b) ;

(h) any Subsidiary of the Borrower may be dissolved or otherwise cease to exist provided that all rights and interest in and to all property, assets and liabilities of such Subsidiary are assumed by or transferred to the Borrower or another Subsidiary; provided that, if the Subsidiary being dissolved is a Loan Party, all rights and interests in such Subsidiary may only be transferred to another Loan Party; and

(i) the unwinding of any Hedging Agreement in accordance with its terms.

10.14 Acquisitions . Not, and not permit any Subsidiary to, make any Acquisition other than Acquisitions that meet the following requirements (each a “ Permitted Acquisition ”);

(a) the business or Person to be acquired is in the same or substantially similar line of business as the Borrower;

 

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(b) if such Acquisition is structured as a merger involving the Borrower or a Guarantor, the Borrower or such Guarantor shall be the surviving entity and the Borrower or such Guarantor shall acquire 100% of the acquired entity;

(c) no Event of Default or Unmatured Event of Default shall exist or result from such Acquisition;

(d) such Acquisition is not actively opposed by the Governing Body of the selling Persons or the Persons whose Equity Interests are to be acquired;

(e) (i) after giving effect to such Acquisition, the Borrower has a pro forma cash balance of at least $100,000,000, and (ii) if the Acquisition is for aggregate consideration of more than $50,000,000, the Borrower shall have delivered to the Administrative Agent, at least 10 Business Days prior to such Acquisition (or such shorter period as the Administrative Agent may agree in its sole discretion) to, a certificate of a Responsible Financial Officer of the Borrower demonstrating, to the satisfaction of the Administrative Agent, (A) pro forma compliance with each of the financial covenants set forth in Section 10.7 (as of the last day of the most recently ended Fiscal Quarter and giving pro forma effect to such Acquisition), (B) the pro forma Total First Lien Leverage Ratio (as of the last day of the most recently ended Fiscal Quarter and giving pro forma effect to such Acquisition) is not greater than 4.00 to 1.00, and (C) audited financial statements for the most recently completed fiscal year of the Person to be acquired, prepared by a nationally recognized accounting firm; and

(f) any newly created or acquired Subsidiary or property shall, to the extent required by Section 10.19 , become a Guarantor and any acquired assets become part of the Collateral; provided, that the aggregate amount of consideration paid by or on behalf of the Borrower and its Subsidiaries in respect of a Person that does not become a Guarantor or in respect of assets that will not become assets of the Borrower or a Guarantor shall not exceed $100,000,000 in the aggregate for all such Acquisitions.

10.15 Restricted Payments . Not, and not permit any Subsidiary to, (i) declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or equity securities on account of any of its Equity Interests, (ii) purchase, redeem or otherwise acquire for value any of its Equity Interests or any warrants, rights or options to acquire with respect thereto, whether now or hereafter outstanding, or (iii) make any earn-out or similar payment (each a “ Restricted Payment ”); provided that:

(a) any Subsidiary may declare and make dividend payments or other distributions to the Borrower or a wholly owned Subsidiary of the Borrower; provided that any Subsidiary that is a Loan Party may only declare and make dividend payments and other distributions (i) to another Loan Party or (ii) in the form of Equity Interests of such Subsidiary (other than Disqualified Stock);

(b) non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options if the Equity Interests represent a portion of the exercise price thereof;

 

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(c) (i) payments of interest to the holders of the 2018 Convertible Notes, the 2022 Convertible Notes and other Convertible Debt pursuant to the terms thereof, (ii) repurchases of the 2018 Convertible Notes, the 2022 Convertible Notes and other Convertible Debt permitted by Section 10.21(a)(vi) , and (iii) the honoring of any conversion request of a holder of 2018 Convertible Notes, the 2022 Convertible Notes or other Convertible Debt (including any payment of cash in connection with such conversion pursuant to the terms of such 2018 Convertible Notes, the 2022 Convertible Notes or other Convertible Debt, as the case may be, in an amount not to exceed the sum of (x) the principal amount of such 2018 Convertible Notes, the 2022 Convertible Notes or other Convertible Debt, as applicable, and any Permitted Refinancing thereof, plus (y) any payments received by the Borrower or any of its Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction) and may make cash payments in lieu of fractional shares in connection with any such conversion, in each case on terms no less favorable in any material respect to the Loan Parties or the Lenders than the terms in effect on the Effective Date;

(d) (i) any payments in connection with a Permitted Bond Hedge Transaction and (ii) the settlement of any related Permitted Warrant Transaction (x) by delivery of shares of the Borrower’s common stock upon settlement thereof or (y) by (A) set-off against the related Permitted Bond Hedge Transaction or (B) payment of an early termination amount thereof in common stock upon any early termination thereof;

(e) so long as no Unmatured Event of Default or Event of Default shall have occurred and be continuing or would immediately result therefrom, the Borrower may make Restricted Payments to its equityholders consistent with its past and ongoing practices in an aggregate amount not to exceed $25,000,000 in each Fiscal Year; and

(f) the Borrower may make Restricted Payments to its equityholders in a total amount after the Effective Date not to exceed the Available Amount; provided that, (A) after giving effect to any such Restricted Payment, the pro forma Total First Lien Leverage Ratio is not greater than 3.50 to 1.00 and (B) at the time of and after giving effect to any such Restricted Payment, no Event of Default has occurred and is continuing or would result therefrom.

10.16 Environmental Compliance .

(a) Comply, and cause each Subsidiary to comply, in all material respects, with all Environmental Laws.

(b) Furnish to the Lenders, promptly after receipt thereof, a copy of any notice the Borrower or any Subsidiary receives from any Governmental Authority, private Person or otherwise that any material litigation or proceeding pertaining to any environmental, health or safety matter has been filed or is threatened against the Borrower or such Subsidiary, any real property in which the Borrower or any Subsidiary holds any interest or any past or present operation of the Borrower or any Subsidiary.

(c) Not, and not permit any Subsidiary to, allow the release or disposal of Hazardous Materials on, under or to any real property in which the Borrower or any Subsidiary holds any ownership interest or performs any of its operations, in material violation of any Environmental Law.

(d) Keep all property in which the Borrower or any Subsidiary holds any ownership interest free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person.

 

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As used in this Section, “litigation or proceeding” means any demand, claim, notice, suit, suit in equity action, administrative action, investigation or inquiry whether brought by any Governmental Authority, private Person or otherwise.

10.17 Affiliate Transactions . Not, and not permit any Subsidiary to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate (other than a Loan Party) on terms that shall be less favorable to the Borrower or such Subsidiary than those that might be obtained at the time in a transaction with a non-Affiliate, except transactions with MLP Subsidiaries (a) permitted by Section 10.13(g) , (b) pursuant to the Omnibus Agreement or any other agreement on terms not materially less favorable to the Borrower or such Subsidiaries than transactions pursuant to the Omnibus Agreement, or (c) in the ordinary course of business and otherwise not prohibited by the Loan Documents that are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person or are fair to the Borrower and its Subsidiaries from a financial perspective, in the reasonable determination of the members of the board of directors of the Borrower.

10.18 Use of Proceeds . Use, and cause any Subsidiary to use, the proceeds of the Loans solely (i) to refinance the Debt to be Repaid, (ii) to pay fees and expenses associated with this Agreement and (iii) for general corporate purposes of the Borrower and its Subsidiaries.

10.19 Further Assurances .

(a) Take, and cause each Subsidiary (other than Foreign Subsidiaries, the MLP Subsidiaries and BioProcess Algae LLC) to take, such actions as are reasonably necessary (including the execution and delivery of such security agreements, mortgages, deeds of trust, assignments, estoppel certificates, financing statements and continuations thereof, termination statements, notices of assignment, certificates, assurances and other instruments as the Administrative Agent, the Collateral Agent or the Required Lenders may reasonably request from time to time) in order (i) to ensure that (x) the obligations of the Borrower hereunder and under the other Loan Documents are secured by substantially all of the assets (other than the Excluded Assets and the Excluded Real Property) of the Borrower (subject to such exceptions as are expressly set forth in the Loan Documents) and guaranteed by all such Subsidiaries of the Borrower (including, promptly upon the acquisition or creation thereof, any Subsidiary created or acquired after the date hereof), and (y) the obligations of each Guarantor under the applicable Guaranty are secured by substantially all of the assets of such Guarantor (subject to such exceptions as are expressly set forth in the Loan Documents), (ii) to perfect and maintain the validity, perfection and priority of the Liens intended to be created by the Collateral Documents and (iii) to better assure, convey, grant, assign, transfer, preserve, protect and confirm to the Agents and the Lenders the rights granted or now or hereafter intended to be granted to the Agents and the Lenders under any Loan Document or under any other document executed in connection therewith. Any mortgage delivered pursuant to this Section 10.19 after the Effective Date shall comply with the requirements set forth in Section 11.1.5 and the Loan Parties shall deliver such other documents specified in such Section in connection therewith.

 

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(b) Upon the formation or acquisition of any Subsidiary that is a direct or indirect wholly-owned Subsidiary of the Borrower (other than any Foreign Subsidiary or any MLP Subsidiary, but in any event, including any Subsidiary that is an obligor under any ABL Facility), promptly notify the Administrative Agent of such formation or acquisition and promptly thereafter (and in any event within 45 days (or such later date as may be agreed by the Collateral Agent in its sole discretion), cause such Person to (a) become a party to the applicable Guaranty, the Security Agreement and (to the extent it owns equity interests) the Pledge Agreement by executing and delivering to the Collateral Agent supplements thereto, and take such actions, if any, as are necessary to cause the Equity Interests of such Subsidiary to be pledged to the Collateral Agent pursuant to the Pledge Agreement; and (b) deliver to the Collateral Agent documents related to collateral, including documents of the types referred to in Section 11.1 and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above), all in form, content and scope reasonably satisfactory to the Collateral Agent.

(c) Within 90 days after the Effective Date and, in the case of any acquired or new account, within 90 days after the date of acquisition or opening of any such account after the Effective Date (or, in each case, such later date as the Collateral Agent may agree in its sole discretion), shall, and shall cause each depository, securities intermediary or commodities intermediary to, enter into Control Agreements with respect to each deposit, securities, commodity or similar account maintained by the Borrower and each Guarantor (other than (a) any payroll account so long as such payroll account is a zero balance account or is funded no earlier than the Business Day immediately prior to the date of any payroll disbursements and in an amount not exceeding the same, (b) accounts for which the average daily balance does not exceed $1,000,000, (c) withholding tax and fiduciary accounts and (d) brokerage accounts securing Debt permitted by Section 10.8(k) ; provided, that, notwithstanding anything in this parenthetical to the contrary, Control Agreements shall be required with respect to each deposit, securities, commodity or similar account which secures any obligation under any of the ABL Facilities or Permitted Refinancing thereof).

(d) Deliver to the Collateral Agent security interest agreements with respect to any rights any Loan Party obtains after the Effective Date with respect to (i) any patent or trademark of the Borrower or its Subsidiaries in appropriate form for filing in the U.S. Patent and Trademark Office and (ii) any copyright of the Borrower or its Subsidiaries in appropriate form for filing in the U.S. Copyright Office, in each case, at the time of delivery of the financial statements required by Sections 10.3(a)  and 10.3(b) .

(e) With respect to (x) any fee interest in any real property (other than Excluded Real Property) located in the United States with a fair market value in excess of $20,000,000 (as reasonably determined by the Borrower in good faith) acquired after the Effective Date by any Loan Party and (y) any Excluded Real Property which no longer meets the requirements set forth in the definition thereof and, as a result, ceases to qualify as Excluded Real Property, within 120 days following the date of acquisition of such real property or change in status of any Excluded Real Property (or such longer period as to which the Administrative Agent may agree in its sole discretion), Mortgages duly executed by the appropriate Loan Party, together with:

(i) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form reasonably acceptable to the Collateral Agent and otherwise suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Lenders and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;

 

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(ii) (i) for each of the properties described in the Mortgages, a commitment for an American Land Title Association (“ ALTA ”) Loan Title Insurance Policy, 2006 (or the equivalent thereof; each a “ Title Commitment ”), issued by an insurer reasonably acceptable to the Collateral Agent, insuring the Collateral Agent’s Lien on such property, which policy shall be in an amount not less than 100% of the reasonably estimated fair market value of such property and shall contain customary endorsements and exceptions to coverage reasonably acceptable to the Collateral Agent; (ii) copies of all material documents of record concerning such property as shown on the title insurance commitment referred to above; and (iii) customary flood searches (conforming with the Flood Disaster Protection Act of 1973 or any other applicable law) relative to each such property (which requirement may be satisfied by the surveys referred to below in clause (iii)), and if indicated by such searches, a flood insurance policy covering which policy shall be reasonably acceptable to the Collateral Agent, or confirmation that such a policy is not required by applicable law;

(iii) ALTA/American Congress on Surveying and Mapping surveys for each of the properties described in the Mortgages, reasonably acceptable to the Collateral Agent, for which all necessary fees (where applicable) have been paid, performed by a land surveyor reasonably acceptable to the Collateral Agent;

(iv) a Phase I Environmental Site Assessment, which in each case is reasonably satisfactory to the Collateral Agent, as to the properties described in the Mortgages, from professional firms acceptable to the Collateral Agent;

(v) evidence of the insurance required by the terms of Section 10.1 ;

(vi) evidence that all other action that the Collateral Agent may deem reasonably necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;

(vii) lender’s polices of title insurance reflecting the comments of the Collateral Agent to the Title Commitments insuring that valid first and subsisting Liens on the property described in the Mortgages have been taken, a reading by the title insurer of the surveys and containing such customary endorsements thereto as the Collateral Agent shall reasonably require;

(viii) an environmental indemnity agreement executed and delivered by each Loan Party applicable to such real property (which may be the environmental indemnity agreement delivered on the Effective Date to the extent applicable to such real property); and

(ix) such other documents related to interests in real property held by the Borrower and its Subsidiaries as the Collateral Agent may reasonably require.

(f) Within 30 days after the Effective Date (or such later date as the Collateral Agent may agree in its sole discretion), the Borrower shall provide the Collateral Agent with evidence that the Collateral Agent has been named as a lender’s loss payee and that the Administrative Agent, the Collateral Agent and the Lenders have been named as additional insured, as applicable, on all applicable insurance policies.

 

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(g) The Borrower and the Guarantors agree to perform on or before the deadlines set forth in Schedule 10.19 the items listed therein. 1

10.20 Restrictive Agreements . Except as set forth in this Agreement and the other Loan Documents, not, and not permit any Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Subsidiary to (a) make, directly or indirectly, loans or advances or capital contributions to the Borrower or (b) transfer, directly or indirectly, any of the properties or assets of such Subsidiary to the Borrower, except for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) customary non-assignment provisions in licenses, leases or other agreements entered into in the ordinary course of business and consistent with past practices, (iii) restrictions on the transfer of any asset pending the close of the sale of such asset, (iv) customary restrictions on transfer of any asset in security agreements, or mortgages or Capital Leases securing Debt permitted hereunder to the extent such restrictions only restrict the transfer of the property subject to such security agreement, mortgage or Capital Lease or (v) restrictions in the ABL-Cattle Credit Documents, the ABL-Grain Credit Documents and the ABL-Trade Credit Documents.

10.21 Certain payments of Certain Debt; Amendment of Organizational Documents and Specified Agreements . (a) Not, and not permit any Subsidiary to, directly or indirectly, make any voluntary or optional payment or prepayment of, or repurchase, redemption or acquisition for value of, or any prepayment or redemption as a result of any Asset Sale, change of control or similar event of, (x) any Debt outstanding under documents evidencing any Debt that is secured on a junior lien basis to the Obligations, (y) any Subordinated Debt or (z) any unsecured Debt that has an aggregate outstanding principal amount in excess of $25,000,000 (“ Restricted Debt Payment ”), except (i) to the extent not prohibited by this Agreement, any ABL Intercreditor Agreement or any other applicable intercreditor or subordination terms applicable to any such Subordinated Debt, Debt secured on a junior lien basis to the Obligations or unsecured Debt (including pursuant to a Permitted Refinancing), with the Available Amount, so long as (A) no Event of Default shall have occurred and be continuing at the time of the making of such Restricted Debt Payment or would immediately result therefrom and (B) after giving effect to any such Restricted Debt Payment, the pro forma Total First Lien Leverage Ratio is not greater than 3.75 to 1.00, (ii) in connection with any Permitted Refinancing thereof, so long as such refinancing is permitted by any applicable intercreditor or subordination terms, (iii) prepaying, redeeming, purchasing, defeasing or otherwise satisfying prior to the scheduled maturity thereof (or setting apart any property for such purpose) (A) in the case of any Subsidiary that is not a Loan Party, any Debt owing by such Subsidiary to any other Subsidiary, (B) otherwise, any Indebtedness owing to any Loan Party and (C) so long as no Event of Default is continuing or would immediately result therefrom, any mandatory prepayments of Indebtedness incurred under Section 10.8(b) and any Permitted Refinancing thereof, (iv) making regularly scheduled or otherwise required payments of interest in respect of such Debt (other than Indebtedness owing to any Affiliate of the Borrower other than any Credit Party) and payments of fees, expenses and

 

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NTD: schedule to provide for post-closing delivery of mortgages and related deliveries.

 

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indemnification obligations thereunder, but only, in the case of Subordinated Debt, to the extent permitted by the subordination provisions thereof, (v) making voluntary and mandatory prepayments of the Debt incurred under the ABL-Cattle Credit Documents, the ABL-Grain Credit Documents and the ABL-Trade Credit Documents (and any Permitted Refinancing of any of the foregoing), (vi) prepayments of the 2018 Convertible Notes outstanding as of the Effective Date on and after the date that is 91 days prior to the scheduled maturity date for such 2018 Convertible Notes, prepayments of the 2022 Convertible Notes on and after the date that 91 days prior to the scheduled maturity date for such 2022 Convertible Notes and prepayments of any other issuance of Convertible Debt on and after the date that is 91 days prior to the scheduled maturity date for such Convertible Debt, (vii) prepayments of Debt effected by the issuance or transfer of Equity Interests (other than Disqualified Stock), and (viii) any Permitted Refinancing in respect thereof so long as no Event of Default is continuing or would immediately result therefrom.

(b) Not, and not permit any Subsidiary to, (i) amend its Organizational Documents to change its name or jurisdiction of organization without giving the Administrative Agent thirty days’ prior written notice (or such shorter period of time as the Administrative Agent may agree in its sole discretion), or (ii) otherwise amend its Organizational Documents in any manner that is materially adverse, or that could reasonably be expected to be materially adverse, to the Lenders, without the prior written consent of the Administrative Agent.

(c) Not, and not permit any Subsidiary to, directly or indirectly, amend, supplement, restate or otherwise modify the intercompany agreements set forth on Schedule 9.21(b) in any manner that is adverse, or that could reasonably be expected to be adverse, to the Lenders without the prior written consent of the Administrative Agent.

(d) Not, and not permit any Subsidiary to, directly or indirectly, amend, supplement, restate or otherwise modify (i) any of the ABL-Cattle Credit Documents in any manner that is in any manner inconsistent with or in violation of the ABL-Cattle Intercreditor Agreement, (ii) any of the ABL-Grain Credit Documents in any manner that is in any manner inconsistent with or in violation of the ABL-Grain Intercreditor Agreement, (iii) any of the ABL-Trade Credit Documents in any manner that is in any manner inconsistent with or in violation of the ABL-Trade Intercreditor Agreement, (iv) (x) increase any of the borrowing base advance rates in the ABL-Cattle Credit Documents by more than 5.0% calculated on a weighted-average basis (in gross amount and, for the avoidance of doubt, not as a percentage of the borrowing base advance rates applicable as of the Effective Date and excluding the implementation of new advance rates on new categories of working capital assets introduced as components of the borrowing base under the ABL-Cattle Credit Documents) across all categories of working capital assets comprising the borrowing base under the ABL-Cattle Credit Documents, without the prior written consent of the Administrative Agent, (y) increase any of the borrowing base advance rates in the ABL-Grain Credit Documents by more than 5.0% calculated on a weighted-average basis (in gross amount and, for the avoidance of doubt, not as a percentage of the borrowing base advance rates applicable as of the Effective Date and excluding the implementation of new advance rates on new categories of working capital assets introduced as components of the borrowing base under the ABL-Grain Credit Documents) across all categories of working capital assets comprising the borrowing base under the ABL-Grain Credit Documents, without the prior written consent of the Administrative Agent, or (z) increase any of the borrowing base advance rates in the ABL-Trade Credit Documents by more than 5.0% calculated on a weighted-average

 

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basis (in gross amount and, for the avoidance of doubt, not as a percentage of the borrowing base advance rates applicable as of the Effective Date and excluding the implementation of new advance rates on new categories of working capital assets introduced as components of the borrowing base under the ABL-Trade Credit Documents) across all categories of working capital assets comprising the borrowing base under the ABL-Trade Credit Documents, without the prior written consent of the Administrative Agent.

10.22 Inspection Rights, etc. Permit, and cause each Subsidiary to permit, any Agent or any Lender by or through any of its officers, agents, employees, attorneys, or accountants to (a) examine, inspect and make extracts from the books and other records, including the Tax returns, of the Borrower and its Subsidiaries, upon reasonable prior notice and during normal business hours; provided , that when an Event of Default or Unmatured Event of Default exists any Agent or any Lender (or any of their respective representatives) may do any of the foregoing without advance notice, (b) during the continuance of an Event of Default, arrange for verification of the accounts of the Borrower and its Subsidiaries, under reasonable procedures, (c) examine and inspect the Borrower’s and its Subsidiaries’ inventory, equipment and other assets, wherever located; provided , that when an Event of Default or Unmatured Event of Default exists any Agent or any Lender (or any of their respective representatives) may do any of the foregoing without advance notice; and (d) conduct an environmental assessment and/or audit of any facility or site owned or operated by the Borrower or any Subsidiary upon reasonable prior notice and during normal business hours; provided , that when an Event of Default or Unmatured Event of Default exists any Agent or any Lender (or any of their respective representatives) may do any of the foregoing without advance notice; provided , further , that unless an Event of Default or Unmatured Event of Default exists, not more than one environmental assessment and/or audit per calendar year may be conducted for each such facility or site.

10.23 Compliance with Law; Licenses . Comply, and cause each Subsidiary to comply, in all material respects with all Federal, state, local or foreign applicable statutes, rules, regulations and orders, including those relating to terms and conditions of employment, labor relations and collective bargaining, wages and hours, leave laws, workers’ compensation, unemployment compensation, immigration, income tax, notice for plant closings and mass layoffs, occupational safety and health, and equal employment practices.

10.24 Credit Ratings . Use commercially reasonable efforts to maintain (a) a public credit rating of the Loans from each of S&P and Moody’s and (b) a public corporate family rating from Moody’s and a public corporate credit rating from S&P, but, in each case, not any minimum ratings.

10.25 Anti-Money Laundering and Anti-Terrorism Finance Laws; Foreign Corrupt Practices Act; Sanctions Laws .

(a) The Borrower will not, directly or indirectly, use the proceeds of any Loan hereunder, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the loan hereunder, whether as underwriter, advisor, investor, or otherwise).

 

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(b) No part of the proceeds of the Loans will be used, directly or indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of the FCPA or any other applicable anti-corruption law.

(c) The Borrower covenants that it will, and will cause its Subsidiaries to (i) maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, any Person that is an Affiliate of the Borrower, including its Subsidiaries, and, to the extent commercially reasonable, its agents with anti-bribery, anti-corruption and anti-money laundering laws and applicable Sanctions and (ii) ensure at all times the truth and accuracy of the representations and warranties, and adherence to, the covenants, set forth in Sections 9.22 , 9.24 and 10.25(a) .

SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.

11.1 Effectiveness . The obligation of each Lender to make Loans shall become effective, and the Lenders shall make the Loans, on the date (the “ Effective Date ”; references in this Agreement to events or conditions as of the Effective Date are, unless otherwise specified, as of the Effective Date substantially concurrently with the consummation of each of the transactions contemplated hereby) on which the Administrative Agent shall have received all of the following, each duly executed and dated a date satisfactory to the Administrative Agent and each in form and substance satisfactory to the Administrative Agent, in its capacity for this Section 11 as a Lead Arranger:

11.1.1 Fees and Expenses . All amounts that are then due and payable pursuant to Section 5 and (to the extent billed at least one Business Day prior to the Effective Date) Section 14.5 .

11.1.2 Security Agreement . The Security Agreements executed and delivered by the Borrower and each Guarantor.

11.1.3 Pledge Agreements . The Pledge Agreement executed and delivered by the Borrower and each other Loan Party that owns any Equity Interests, together with original certificates (if any) representing the Equity Interests to be pledged thereunder and corresponding stock or other powers executed in blank.

11.1.4 Guaranty . The Guaranty executed and delivered by the Guarantors.

11.1.5 Intercreditor Agreements . Each ABL Intercreditor Agreement, executed and delivered by the applicable administrative agent and collateral agent under the related ABL Facility and the Loan Parties; and the Term Loan Intercreditor Agreement, executed and delivered by each of the administrative agents and collateral agents under the ABL Facilities and the Loan Parties.

11.1.6 Intellectual Property . Security interest agreements executed by the Borrower and any applicable Guarantor to (a) any patent or trademark of the Borrower or its Subsidiaries in appropriate form for filing in the U.S. Patent and Trademark Office and (b) any copyright of the Borrower or its Subsidiaries in appropriate form for filing in the U.S. Copyright Office.

 

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11.1.7 Liens on Collateral . Evidence that all filings necessary to perfect the Collateral Agent’s Lien on the Collateral have been (or concurrently with the initial Credit Extension will be) duly made and the Collateral Agent shall have a first priority perfected security interest in the Collateral, subject to Permitted Liens.

11.1.8 UCC Search Results; Payoff Letters . Certified copies of Uniform Commercial Code search reports dated a date reasonably near to the Effective Date, listing all effective financing statements that name any Loan Party (under its present name and any previous names) as debtor, together with (a) copies of such financing statements, (b) payoff letters evidencing repayment in full of all Debt to be Repaid, the termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing and (c) such Uniform Commercial Code termination statements as the Administrative Agent may reasonably request.

11.1.9 Resolutions . Certified copies of resolutions of the Governing Body of each Loan Party authorizing or ratifying the execution, delivery and performance by such Person of each Loan Document to which it is a party.

11.1.10 Consents, etc. Certified copies of all documents evidencing any necessary corporate (or other similar) action, consents and governmental approvals (if any) required for the execution, delivery and performance by each Loan Party of the documents referred to in this Section 11 .

11.1.11 Incumbency and Signature Certificates . A certificate of the Secretary or an Assistant Secretary of each Loan Party as of the Effective Date certifying the names of the officer or officers of such entity authorized to sign the Loan Documents to which such entity is a party, together with a sample of the true signature of each such officer (it being understood that the Administrative Agent and each Lender may conclusively rely on each such certificate until formally advised by a like certificate of any changes therein).

11.1.12 Organization Documents; Good Standing . Each of the following documents:

(a) the articles or certificate of formation (or similar charter document) and the bylaws (or similar governing documents) of each Loan Party as in effect on the Effective Date, certified by the Secretary or an Assistant Secretary or a similar officer of such Loan Party as of the Effective Date;

(b) a good standing certificate or certificate of status for each Loan Party from the Secretary of State (or similar, applicable Governmental Authority) of its jurisdiction of formation; and

(c) such other documents and information that any Lender may request to comply with applicable bank regulatory requirements under “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

11.1.13 Confirmatory Certificate . A certificate of a Responsible Officer of the Borrower as of the Effective Date certifying as to the matters set forth in Sections 9.12 , 9.13 , 11.1.21 and 11.1.22 .

 

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11.1.14 Opinion Letters . An opinion letter of Husch Blackwell LLP, counsel to the Loan Parties, addressed to the Lenders and the Agents.

11.1.15 Financial Information . The following financial information: (a) the annual audited financial statements for the Borrower and its Subsidiaries on a consolidated basis for Fiscal Year 2014, Fiscal Year 2015 and Fiscal Year 2016, in each case consisting of a balance sheet and statements of income and cash flows; (b) unaudited consolidated financial statements of the Borrower and its Subsidiaries on a consolidated basis for the Fiscal Quarters ended March 31, 2017 and June 30, 2017, in each case consisting of a balance sheet and statements of income and cash flows; (c) six-year projected financial statements; and (d) a pro forma balance sheet adjusted to give effect to the transactions contemplated by this Agreement.

11.1.16 Insurance . Evidence of the existence of insurance required to be maintained pursuant to Section 10.1 , subject to Section 10.19(f) in the case of evidence that the Collateral Agent has been named as a lender’s loss payee and that the Administrative Agent, the Collateral Agent and the Lenders have been named as additional insured, as applicable, on all applicable insurance policies.

11.1.17 No Material Adverse Effect . (i) Since December 31, 2016, there shall have been no event that constitutes or would reasonably be expected to have a Material Adverse Effect and (ii) there shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.

11.1.18 Intercompany Agreements . A certified copy of all agreements set forth on Schedules 9.21(a) and 9.21(b) .

11.1.19 Flow of Funds Memorandum . A fully executed flow of funds memorandum.

11.1.20 Other . An environmental indemnity agreement executed and delivered by each Loan Party, and such other documents as the Administrative Agent or the Collateral Agent may reasonably request.

11.1.21 Representations and Warranties . The representations and warranties of each Loan Party set forth in this Agreement and the other Loan Documents shall be true and correct.

11.1.22 No Event of Default . No Event of Default or Unmatured Event of Default shall exist before or after giving effect to this Agreement and the Credit Extensions made hereunder.

SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.

12.1 Events of Default . Each of the following shall constitute an Event of Default under this Agreement:

12.1.1 Non-Payment . Any Loan Party fails to make (a) when and as required to be made herein, any payment of principal of any Loan or (b) within three Business Days after the same becomes due, payment of any interest, fee or other amount payable hereunder or under any other Loan Document.

 

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12.1.2 Representation or Warranty . Any representation or warranty by any Loan Party made or deemed made herein or in any other Loan Document, or that is contained in any certificate, document or financial or other statement by any Loan Party or any Responsible Officer thereof furnished at any time under this Agreement or any other Loan Document, is incorrect in any material respect on or as of the date made or deemed made.

12.1.3 Specific Defaults . Failure by the Borrower or any Subsidiary to comply with or to perform any covenant set forth in Section 10.3 , 10.5(a) , 10.7 through 10.15 , 10.17 , 10.18 , 10.19 , 10.20 , 10.21 , 10.22 , 10.24 or 10.25 .

12.1.4 Other Defaults . The Borrower or any Subsidiary fails to perform or observe any term or covenant contained in this Agreement (other than those specified in Sections 12.1.1 through 12.1.3 above) or any other Loan Document to which it is a party, and such default shall continue unremedied for a period of 30 days after the occurrence thereof.

12.1.5 Cross-Default to other Debt . The Borrower or any Subsidiary (a) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) with respect to Debt in an aggregate principal amount in excess of $25,000,000 or (b) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist (other than any event which triggers any conversion right of holders of Convertible Debt), under any debt instrument (other than any note payable to the Borrower or any Subsidiary), lease (capital, operating or otherwise), guaranty, contract, commitment, agreement or other arrangement evidencing Debt in an aggregate principal amount in excess of $25,000,000, and such failure, event or condition continues after the applicable grace or notice period, if any, specified in the relevant document on the date of such failure if the effect of such failure, event or condition is to cause, or to permit the holder or holders or beneficiary or beneficiaries of the Debt thereunder (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, such Debt to be declared to be due and payable prior to its stated maturity or cash collateral in respect of such Debt to be demanded.

12.1.6 Cross-Default to ABL Facilities . Any event of default shall exist and be continuing under any of the ABL-Cattle Credit Documents, the ABL-Grain Credit Documents, the ABL-Trade Credit Documents or any Permitted Refinancing thereof.

12.1.7 Insolvency; Voluntary Proceedings . Any Loan Party or any Subsidiary (a) ceases or fails to be solvent, or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (b) voluntarily ceases to conduct its business in the ordinary course (other than as contemplated by Section 10.13 ); (c) commences any Insolvency Proceeding with respect to itself; or (d) takes any action to effectuate or authorize any of the foregoing.

12.1.8 Involuntary Proceedings . (a) Any involuntary Insolvency Proceeding is commenced or filed against any Loan Party or any Subsidiary, or any writ, judgment, warrant of attachment, execution or similar process is issued or levied against a substantial part of the properties any Loan Party or Subsidiary, and such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within 60 days after commencement, filing or levy; (b) any Loan Party or Subsidiary admits the material allegations of a petition against it in any Insolvency Proceeding, or

 

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an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (c) any Loan Party or Subsidiary acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor) or similar Person for itself or a substantial portion of its property or business.

12.1.9 ERISA . The occurrence of one or more ERISA Events that, either individually or in the aggregate, (a) have had or could reasonably be expected to have a Material Adverse Effect or (b) result in a Lien on any of the assets of any Loan Party or Subsidiary.

12.1.10 Monetary Judgments . One or more non-interlocutory judgments, non-interlocutory orders, decrees or arbitration awards is entered against any Loan Party or any Subsidiary involving in the aggregate a liability (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), as to any single or related series of transactions, incidents or conditions, of $10,000,000 or more, and the same shall remain unvacated and unstayed pending appeal for a period of 30 days after the entry thereof.

12.1.11 Non-Monetary Judgments . Any non-monetary judgment, order or decree is entered against any Loan Party or any Subsidiary that has had or could reasonably be expected to have a Material Adverse Effect, and there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.

12.1.12 Change in Control . Any Change in Control occurs.

12.1.13 Invalidity of Loan Documents; Collateral .

(a) Any material provision of any Loan Document to which a Loan Party is a party shall for any reason cease to be valid and binding on or enforceable against such Loan Party (other than as a result of a transaction permitted hereunder), or any Loan Party (or any Person by, through or on behalf of such Loan Party) shall so state in writing, shall bring an action to limit its obligations or liabilities thereunder or shall deny that it has any further liability thereunder.

(b) Any Collateral Document shall for any reason (other than pursuant to the terms thereof) cease to create a valid Lien in favor of the Collateral Agent on behalf of the Lenders on property that (i) is intended to be Collateral and (ii) has a collective value in excess of $10,000,000 (“ Material Property ”); or any Lien of the Collateral Agent on behalf of the Lenders on Material Property shall for any reason cease to be, or shall be asserted by any Loan Party not to be, a perfected and first priority Lien (subject only to Permitted Liens).

12.2 Effect of Event of Default . If any Event of Default described in Section 12.1.7 or 12.1.8 shall occur, the Loans and all other obligations hereunder shall become immediately due and payable, without presentment, demand, protest or notice of any kind; and if any other Event of Default shall occur and be continuing, the Administrative Agent may (and upon written request of the Required Lenders shall) declare all Loans and all other obligations hereunder to be due and payable, whereupon all Loans and all other obligations hereunder shall become immediately due and payable without presentment, demand, protest or notice of any kind. The Administrative Agent shall promptly advise the Borrower of any such declaration, but failure to do so shall not impair the effect of such declaration. Without limiting the foregoing provisions of this Section 12.2 , if an Event of Default exists, the Administrative Agent or the Collateral Agent may exercise all rights and remedies available upon an Event of Default pursuant to the any Collateral Document, any other Loan Document and applicable law.

 

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SECTION 13 THE AGENTS.

13.1 Appointment and Authorization of Administrative Agent . Each Lender hereby irrevocably designates and appoints BNP Paribas as the Administrative Agent under the Loan Documents and hereby authorizes the Administrative Agent, in such capacity, to take such action as Administrative Agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, and that the Administrative Agent may also act, subject to and in accordance with the terms of each ABL Intercreditor Agreement and any other intercreditor or subordination agreement, as applicable. The Lenders expressly agree that, notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent is not acting as a fiduciary of any Lender in respect of the Loan Documents, any Loan Party or otherwise, and nothing herein or in any of the other Loan Documents shall result in any duties or obligations on the Administrative Agent or any Lender except as expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.

13.2 Appointment and Authorization of Collateral Agent . Each Lender hereby irrevocably designates and appoints BNP Paribas as the Collateral Agent under the Loan Documents and hereby authorizes the Collateral Agent, in such capacity, to take such action as Collateral Agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Collateral Agent by the terms thereof, including acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers as are reasonably incidental thereto, and that the Collateral Agent may also act, subject to and in accordance with the terms of each ABL Intercreditor Agreement and any other intercreditor or subordination agreement, as applicable. The Lenders expressly agree that, notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent is not acting as a fiduciary of any Lender in respect of the Loan Documents, any Loan Party or otherwise, and nothing herein or in any of the other Loan Documents shall result in any duties or obligations on the Collateral Agent or any Lender except as expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent.

13.3 Consultation with Experts . Each Agent may consult with legal counsel, independent public accountants, and other experts selected by it and shall be entitled to advice of such counsel, accountants or experts concerning all matters pertaining to any of its duties under this Agreement and the other Loan Documents. No Agent shall be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.

 

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13.4 Liability of Administrative Agent; Credit Decision . No Agent-Related Person shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Agent-Related Persons: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether an Unmatured Event of Default or Event of Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that an Agent-Related Person is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that no Agent-Related Person shall be required to take any action that, in its opinion or the opinion of its counsel, may expose any Agent-Related Person to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law; and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity. No Agent-Related Person shall be liable for any action taken or not taken by it in connection with the Loan Documents: (i) with the consent or at the request of the Required Lenders or (ii) in the absence of its own gross negligence or willful misconduct. No Agent-Related Person shall be responsible for or have any duty to ascertain, inquire into or verify: (i) any recital, statement, warranty or representation made in connection with this Agreement, any other Loan Document or any Loan, or contained in any certificate, report, statement or other document referred to or provided for in, or received by any Agent under or in connection with, this Agreement or any other Loan Document; (ii) the performance or observance of any of the covenants or agreements of any Loan Party contained herein or in any other Loan Document; (iii) the satisfaction of any condition specified in Section 11 , except receipt of items required to be delivered to such Agent; (iv) the validity, effectiveness, genuineness, enforceability, perfection, value, worth or collectability hereof or of any other Loan Document or of any other documents or writings furnished in connection with any Loan Document or of any Collateral; or (v) any failure of any Loan Party to perform its obligations hereunder or under any other Loan Document; and the Agents make no representation of any kind or character with respect to any such matter mentioned in this sentence. No Agent-Related Person shall be under any obligation to any Lender to inspect the properties, books or records of any Loan Party. Each Agent may execute any of its duties under any of the Loan Documents by or through employees, agents, and attorneys in fact and shall not be answerable to any Lender, any Loan Party or any other Person for the default, negligence or misconduct of any such agents or attorneys in fact selected with reasonable care. The Agents shall not incur any liability by acting in reliance upon (x) any writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, e-mail, telex or teletype message, statement, order or other document or conversation believed by it to be genuine or to be sent by the proper party or parties or (y) advice and statements of legal counsel (including, without limitation, counsel to the Borrower), independent accountants and other experts selected by an Agent. In particular and without limiting any of the foregoing, the Agents shall have no responsibility for confirming the accuracy of any compliance certificate or other document or instrument received by it under the Loan Documents. The Administrative Agent may deem and treat the payee of any obligation owing under a Loan Document as the holder thereof for all purposes until written notice of assignment, negotiation or transfer shall have been filed with the Administrative Agent signed by such payee in form satisfactory to the Administrative Agent. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to clause (c) of the definition of Eligible Assignee. Without limiting the generality of the foregoing, the Administrative Agent shall

 

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not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Person contemplated by clause (c) of the definition of Eligible Assignee or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Person contemplated by clause (c) of the definition of Eligible Assignee.

13.5 Action by Agents . If the Administrative Agent receives from the Borrower a notice of an Event of Default pursuant to Section 10.3(e) , the Administrative Agent shall promptly give each Lender notice thereof. The obligations of the Agents under the Loan Documents are only those expressly set forth therein. Without limiting the generality of the foregoing, the Administrative Agent shall not be required to take any action hereunder with respect to any Event of Default or Unmatured Event of Default, except as expressly provided in Section 12.2 , and the Collateral Agent shall not be required to take any action hereunder, except as directed by the Administrative Agent. Upon the occurrence of an Event of Default, the Administrative Agent shall direct the Collateral Agent take such action to enforce its Lien on the Collateral and to preserve and protect the Collateral as may be directed by the Required Lenders. Unless and until the Required Lenders give such direction, either Agent may (but shall not be obligated to) take or refrain from taking such actions as it deems appropriate and in the best interest of the Lenders. In no event, however, shall either Agent be required to take any action in violation of applicable law or of any provision of any Loan Document, and the Agents shall in all cases be fully justified in failing or refusing to act hereunder or under any other Loan Document unless it first receives such advice or concurrence of the Required Lenders as it deems appropriate and any further assurances of its indemnification from the Lenders that it may require, including prepayment of any related expenses and any other protection it requires against all costs, expense, and liability which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall be entitled to assume that no Event of Default or Unmatured Event of Default exists unless notified in writing to the contrary by the Collateral Agent, a Lender or a Loan Party, and the Collateral Agent shall be entitled to assume that no Event of Default or Unmatured Event of Default exists unless notified in writing to the contrary by the Administrative Agent, a Lender or a Loan Party. No Agent shall be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default hereunder unless such Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Event of Default or Unmatured Event of Default and stating that such notice is a “notice of default”. Each Agent shall take such action with respect to such Event of Default or Unmatured Event of Default as shall be reasonably directed by the Required Lenders; provided, that unless and until the Agents shall have received such directions, each Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Unmatured Event of Default as it shall deem advisable in the best interests of the Lenders. Any instructions of the Required Lenders, or of any other group of Lenders called for under the specific provisions of the Loan Documents, shall be binding upon all the Lenders and other holders of obligations under or supported by the Loan Documents.

 

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13.6 Non Reliance on Agents and Other Lenders . Each Lender expressly acknowledges that no Agent nor any of their respective officers, directors, employees, agents, attorneys in fact or Affiliates has made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of any Loan Party or any audit, shall be deemed to constitute any representation or warranty by such Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries and made its own decision to extend credit to the Borrower hereunder and enter into this Agreement. Each Lender also represents that it shall, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent hereunder or under the other Loan Documents, no Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party which may come into the possession of such Agent or any of its respective officers, directors, employees, agents, attorneys in fact or Affiliates. Each Lender assumes the responsibility of keeping itself informed at all times.

13.7 Agents and Their Affiliates . The Agents shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise or refrain from exercising such rights and power as though it were not an Agent, and to the extent that the Administrative Agent makes and has any Loans outstanding under this Agreement, the terms “Lender” and “Lenders” shall include the Administrative Agent in its individual capacity. The Agents and their respective Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Loan Parties and their Affiliates as if it were not an Agent under the Loan Documents.

13.8 Indemnity . The Lenders agree to indemnify each Agent-Related Person in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Applicable Percentages in effect on the date on which indemnification is sought, from and against any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs expenses or disbursements of any kind whatsoever which may at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted against such Agent-Related Person in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent-Related Person under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from such Agent-Related Person’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. The obligations of the Lenders under this Section shall survive the termination of this Agreement. The Administrative Agent shall be entitled to offset amounts received for the account of a Lender under this Agreement against unpaid amounts due from such Lender to the Administrative Agent or the Collateral Agent hereunder (whether as fundings of participations, indemnities or otherwise), but shall not be entitled to offset against amounts owed to the Administrative Agent or the Collateral Agent by any Lender arising outside of this Agreement and the other Loan Documents.

 

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13.9 Resignation of Administrative Agent and Successor Administrative Agent . The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower. Upon any such resignation of the Administrative Agent, the Required Lenders shall have the right to appoint a successor Administrative Agent with the prior written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned, and shall not be required during the existence of an Event of Default or Unmatured Event of Default). If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, in its sole discretion, either continue to act as Administrative Agent hereunder and under the Loan Documents or assign all of its rights and delegate all of its obligations hereunder and under the Loan Documents to the Required Lenders. Upon the acceptance of its appointment as the Administrative Agent hereunder, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Administrative Agent under the Loan Documents, and the retiring Administrative Agent shall be discharged from its duties and obligations as Administrative Agent thereunder, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans or other Obligations. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Section 13 and all protective provisions of the other Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent and shall survive the payment of the Loans and other Obligations and termination of this Agreement, but no successor Administrative Agent shall in any event be liable or responsible for any actions of its predecessor. If the Administrative Agent resigns and no successor is appointed within 45 days, the rights and obligations of such Administrative Agent shall be automatically assumed by the Required Lenders and (i) the Borrower shall be directed to make all payments due each Lender hereunder directly to such Lender and (ii) the Administrative Agent’s rights in the Collateral Documents shall be assigned without representation, recourse or warranty to the Lenders as their interests may appear.

13.10 Resignation of Collateral Agent and Successor Collateral Agent . The Collateral Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower. Upon any such resignation of the Collateral Agent, the Required Lenders shall have the right to appoint a successor Collateral Agent with the prior written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned, and shall not be required during the existence of an Event of Default or Unmatured Event of Default). If no successor Collateral Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Collateral Agent’s giving of notice of resignation, then the retiring Collateral Agent may, in its sole discretion, either continue to act as Collateral Agent hereunder and under the Loan Documents or assign all of its rights and delegate all of its obligations hereunder and under the Loan Documents to the Required Lenders. Upon the acceptance of its appointment as the Collateral Agent hereunder, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Collateral Agent under the Loan Documents, and the retiring Collateral Agent shall be discharged from its duties and obligations as Collateral Agent thereunder, without any other or

 

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further act or deed on the part of such former Collateral Agent or any of the parties to this Agreement or any holders of the Loans or other Obligations. After any retiring Collateral Agent’s resignation hereunder as Collateral Agent, the provisions of this Section 13 and all protective provisions of the other Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent and shall survive the payment of the Loans and other Obligations and termination of this Agreement, but no successor Collateral Agent shall in any event be liable or responsible for any actions of its predecessor. If the Collateral Agent resigns and no successor is appointed within 45 days, the rights and obligations of such Collateral Agent shall be automatically assumed by the Required Lenders and the Collateral Agent’s rights in the Collateral Documents shall be assigned without representation, recourse or warranty to the Lenders as their interests may appear.

13.11 Authorization to Release, Subordinate or Limit Liens . The Collateral Agent is hereby irrevocably authorized by each Lender to (a) release any Lien covering any Collateral that is sold, transferred, or otherwise disposed of in accordance with the terms and conditions of this Agreement and the relevant Loan Documents (including a sale, transfer, or disposition permitted by the terms of Section 10.13 or that has otherwise been consented to in accordance with Section 14.1 ), (b) release or subordinate any Lien on Collateral consisting of (i) goods financed with purchase money Debt or under a Capital Lease to the extent such purchase money Debt or Capitalized Lease Obligation, and the Lien securing such Debt or obligation, are permitted hereunder or (ii) receivables under any financing permitted by Section 10.8(o) or inventory under any financing permitted by Section 10.8(p) to the extent the Liens securing such facilities are permitted hereunder, (c) reduce or limit the amount of the Debt secured by any particular item of Collateral to an amount not less than the estimated value thereof to the extent necessary to reduce mortgage registry, filing and similar Taxes, (d) release Liens on the Collateral following payment in full in cash of all outstanding obligations of the Loan Parties under the Loan Documents, (e) enter into any mortgagee waiver and consent with respect to property located on premises subject to a mortgage under the Loan Documents and owned by an entity that is not a Loan Party and (f) (i) to enter into any ABL Intercreditor Agreement, the Term Loan Intercreditor Agreement or other intercreditor or subordination agreement it deems reasonable in connection with any Debt permitted to be incurred hereunder, and that if any such other intercreditor or subordination agreement is posted to the Lenders three Business Days before being executed and the Required Lenders shall not have objected to such other intercreditor or subordination agreement, the Required Lenders shall be deemed to have agreed that the Administrative Agent’s or the Collateral Agent’s entry into such other intercreditor or subordination agreement is reasonable and to have consented to such other intercreditor or subordination agreement and such Agent’s execution thereof and (ii) release any Lien on Collateral pursuant to or take any other action in accordance with any ABL Intercreditor Agreement, the Term Loan Intercreditor Agreement or other intercreditor or subordination agreement contemplated hereby. Upon request by the Collateral Agent at any time, the Lenders shall confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 13.11 , provided, that the absence of any such confirmation for whatever reason shall not affect the Collateral Agent’s rights under this Section 13.11 .

13.12 Application to Lead Arrangers . The provisions of this Section 13 shall also apply to the Lead Arrangers.

 

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13.13 Delegation of Duties . The Agents may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent. The Agents and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Agent-Related Persons. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Agent-Related Persons of any Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Loans as well as activities as an Agent. The Agents shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

13.14 Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agents and their respective agents and counsel and all other amounts due the Lenders and the Agents under the Loan Documents) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under the Loan Documents.

SECTION 14 GENERAL.

14.1 Waiver; Amendments . No delay on the part of any Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. No amendment, modification or waiver of, or consent with respect to, any provision of this Agreement shall be effective unless the same shall be in writing and signed and delivered by Lenders having an aggregate Applicable Percentage of not less than the aggregate Applicable Percentage expressly designated herein with respect thereto or, in the absence of such designation as to any provision of this Agreement, by the Required Lenders and, in the case of an amendment or other modification, Borrower and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment, modification, waiver or consent shall (i) extend the scheduled maturity date or payment date of any principal of any Loan or extend the date for payment of any interest (other than waivers of default interest), fees or prepayment premiums on any Loan payable hereunder, (ii) reduce the principal amount of any Loan, the rate of interest thereon (other than the waiver of default interest or the application

 

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thereof) or any fees payable hereunder, or (iii) release (x) any Guarantor from its obligations under the applicable Guaranty (other than with respect to a Guarantor which ceases to be required to provide a Guaranty as a result of a transaction permitted hereunder) or (y) all or substantially all of the Collateral, without, in the case of each of clauses (i) through (iii) above, the consent of each Lender affected thereby. No amendment, modification, waiver or consent shall (a) amend this Section 14.1 , (b) reduce the aggregate Applicable Percentage required to effect an amendment, modification, waiver or consent or change the definition of “Required Lenders” or (c) amend Section 7.2 or Section 6.2.4 in a manner that would alter the pro rata application of payments required thereby, in the case of each of clauses (a) through (c) above, without the consent of all Lenders. No provision of Section 13 or other provision of this Agreement affecting the Administrative Agent in its capacity as such may be amended, modified or waived without the consent of the Administrative Agent. No provision of Section 13 or other provision of this Agreement adversely affecting the Collateral Agent in its capacity as such may be amended, modified or waived without the consent of the Collateral Agent. No provision of Section 13 or other provision of this Agreement adversely affecting the Lead Arrangers may be amended, modified or waived without the consent of the Lead Arrangers. Notwithstanding anything to the contrary herein, this Agreement and the other Loan Documents may be amended with the written consent of only the Administrative Agent and the Borrower (1) to the extent necessary in order to evidence and implement any Incremental Term Loans pursuant to Section 2.3 , any Extended Loans pursuant to Section 2.4 and any Replacement Loans pursuant to Section 2.5 , (2) to correct administrative errors or omissions, or to effect administrative changes that are not adverse to any Lender, (3) to correct, amend, cure any ambiguity, inconsistency, defect or correct any typographical error or other manifest error in this Agreement or any other Loan Document, or (4) to cause a Collateral Document to be consistent with this Agreement and other Loan Documents. If, in connection with any proposed change, waiver, discharge or termination of or to any of the provisions of this Agreement as contemplated by the fourth sentence of this Section 14.1 , the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, to replace each such Non-Consenting Lender with one or more Eligible Assignees as replacement Lenders, so long as at the time of such replacement, each such replacement Lender consents to the proposed change, waiver, discharge or termination.

14.2 Confirmations . The Borrower and each Lender agree from time to time, upon written request received by it from the other, to confirm to the other in writing (with a copy of each such confirmation to the Administrative Agent) the aggregate unpaid principal amount of the outstanding Loans payable by the Borrower to such Lender.

14.3 Notices .

(a) Except as otherwise specified herein (and except as provided in paragraph (b) below), all notices hereunder and under the other Loan Documents shall be in writing (including notice by telecopy) and shall be given to the relevant party at its address or facsimile number set forth below, or such other address or facsimile number as such party may hereafter specify by notice to the Administrative Agent and the Borrower given by nationally recognized overnight courier, by United States certified or registered mail, first class postage prepaid, by telecopy or by other telecommunication device capable of creating a written record of such notice and its receipt. Each such notice, request or other communication shall be effective (i) if given by facsimile, when such telecopy is transmitted to the facsimile number specified in this Section or

 

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in the relevant Administrative Questionnaire and a confirmation of such telecopy has been received by the sender, (ii) if given by mail, five days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iii) if given by any other means, when delivered at the addresses specified in this Section or in the relevant Administrative Questionnaire; provided that any notice given pursuant to Section 2 hereof shall be effective only upon receipt. Notices under the Loan Documents to any Lender shall be addressed to its address or facsimile number set forth on its Administrative Questionnaire; and notices under the Loan Documents to the Borrower, the Collateral Agent or Administrative Agent shall be addressed to its respective address or facsimile number set forth on Schedule 14.3 .

(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2.2 if such Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

(c) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting the Communications on the Platform. The Borrower acknowledges and agrees that any list of Persons contemplated by clause (c) of the definition of Eligible Assignees shall be deemed suitable for posting and may be posted by the Administrative Agent on the Platform, including the portion of the Platform that is designated for “public side” Lenders. The Platform is provided “as is” and “as available.” The Agent-Related Persons do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent-Related Person in connection with the Communications or the Platform. In no event shall the Agent-Related Persons have any liability to the Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of communications through the Platform. “ Communications ” means, collectively, any notice, demand,

 

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communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to this Section, including through the Platform.

14.4 Regulation U . Each Lender represents that it in good faith is not relying, either directly or indirectly, upon any Margin Stock as collateral security for the extension or maintenance by it of any credit provided for in this Agreement.

14.5 Costs and Expenses; Indemnification . (a) The Borrower agrees to pay all reasonable costs and expenses of the Lead Arrangers and the Agents in connection with the due diligence (including third party expenses), preparation, negotiation, syndication and administration of the Loan Documents, including the reasonable fees and disbursements of counsel to the Lead Arrangers and the Agents, in connection with the preparation and execution of the Loan Documents, and any amendment, waiver or consent related thereto, whether or not the transactions contemplated herein or therein are consummated, and the consummation and administration of the transactions contemplated hereby and thereby, together with any fees and charges suffered or incurred by the Lead Arrangers or the Agents in connection with (x) any title insurance policies, recording and filing fees and lien searches and any liabilities with respect to, or resulting from any delay in paying, stamp, excise and other Taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of, any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent (including the determination of whether or not any such waiver or consent is required) under or in respect of, this Agreement, the other Loan Documents and any such other documents and (y) inspections and, to the extent reasonably required, periodic environmental audits and fixed asset appraisals; provided that so long as no Event of Default or Unmatured Event of Default exists, the Borrower shall not be required to reimburse the Lead Arrangers or the Agents for more than one inspection, more than one appraisal and more than one audit in each Fiscal Year with respect to each property. The Borrower agrees to pay to the Administrative Agent, the Collateral Agent and each Lender, and any other holder of any obligations outstanding under the Loan Documents, all costs and expenses incurred or paid by the Administrative Agent, the Collateral Agent, such Lender or such holder, including attorneys’ fees and disbursements and court costs, in connection with any Event of Default or Unmatured Event of Default hereunder or in connection with the enforcement of any of the Loan Documents (including all such costs and expenses incurred in connection with any proceeding under the Bankruptcy Code involving any Loan Party as a debtor thereunder, or any restructuring or “work-out” related hereto and thereto). The Borrower further agrees to indemnify the Lead Arrangers, the Administrative Agent, the Collateral Agent, each Lender and any security trustee therefor, and their respective directors, officers, employees, trustees, agents, financial advisors, consultants, affiliates and controlling persons (each such Person, an “ Indemnitee ”) against all other liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for any such Indemnitee and all reasonable expenses of litigation or preparation therefor, whether or not the Indemnitee is a party thereto, or any settlement arrangement arising from or relating to any such litigation) which any of them may pay or incur arising out of or relating to any Loan Document or any of the transactions contemplated thereby, including with respect to any recording privilege tax that may be due in connection with the recordation of any Mortgage, Security Agreement, Financing

 

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Statement and Fixture Filing, or the direct or indirect application or proposed application of the proceeds of any Loan, provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to such liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent such liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee. The Borrower, upon demand by the Lead Arrangers, any Agent or any Lender at any time, shall reimburse the Lead Arrangers, such Agent or such Lender for any legal or other expenses (including all reasonable fees and disbursements of counsel for any such Indemnitee) incurred in connection with investigating or defending against any of the foregoing (including any settlement costs relating to the foregoing) except to the extent such expenses are directly due to the gross negligence or willful misconduct of the party seeking reimbursement or any of its directors, officers, employees, agents or other representatives. To the extent permitted by applicable law, the Borrower agrees not to assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or the other Loan Documents or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. The obligations of the Borrower under this Section shall survive the termination of this Agreement.

(b) The Borrower unconditionally agrees to forever indemnify, defend and hold harmless, and covenants not to sue for any claim for contribution against, each Indemnitee for any damages, costs, loss or expense, including response, remedial or removal costs and all fees and disbursements of counsel for any such Indemnitee, arising out of any of the following: (i) any presence, release, threatened release or disposal of any Hazardous Material by the Borrower or any Subsidiary or otherwise occurring on or with respect to its property (whether owned or leased), (ii) the operation or violation of any Environmental Law by the Borrower or any Subsidiary or otherwise occurring on or with respect to its property (whether owned or leased), (iii) any claim for personal injury, property damage related to the Borrower or any Subsidiary or otherwise occurring on or with respect to its property (whether owned or leased), (iv) any claim for actual or threatened injury to, destruction of or loss of natural resources in connection with the Borrower or any Subsidiary or otherwise occurring in connection with its property (whether owned or leased) and (v) the inaccuracy or breach of any environmental representation, warranty or covenant by the Borrower or any Subsidiary made herein or in any other Loan Document evidencing or securing any obligation under the Loan Documents or setting forth terms and conditions applicable thereto or otherwise relating thereto. The foregoing indemnity shall survive the termination of this Agreement and shall remain in force beyond the expiration of any applicable statute of limitations and payment or satisfaction in full of any single claim thereunder.

(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid by it to an Indemnitee, each Lender severally agrees to pay to such Indemnitee such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Applicable Percentage at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that

 

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the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Indemnitee in its capacity as an Agent (or any such Agent-Related Person). The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 14.12 .

(d) To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan, or the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

(e) All amounts due under this Section shall be payable promptly after demand therefor.

(f) Each party’s obligations under this Section shall survive the termination of the Loan Documents and payment of the obligations hereunder.

14.6 Captions . Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement.

14.7 Assignments; Participations .

14.7.1 Assignments . Any Lender may, with the prior written consent of the Administrative Agent and the Borrower (which consents shall not be unreasonably withheld, delayed or conditioned, and shall not be required (A) in the case of the Borrower, (w) for any assignments made by BNP Paribas in the primary syndication of the Loans to Eligible Assignees, (x) during the existence of an Event of Default, (y) in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (z) consent will be deemed to have been given if the Borrower has not responded within ten days of a request for its consent, and (B) in the case of the Administrative Agent, in the case of the assignment to a Lender, an Affiliate of a Lender or an Approved Fund), at any time assign and delegate to one or more Eligible Assignees (any Person to whom such an assignment and delegation is to be made, an “ Assignee ”), all or any fraction of such Lender’s Loans in a minimum aggregate amount (in the case of an assignment to an Assignee other than a Lender hereunder or an Approved Fund) equal to the lesser of (i) the amount of the assigning Lender’s remaining Loans and (ii) other than in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, $1,000,000, or such lesser amount as the Administrative Agent and, so long as no Event of Default exists, the Borrower, may agree in their discretion); provided that the Borrower and the Administrative Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned and delegated to an Assignee until the date when all of the following conditions shall have been met:

 

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(x) the Assignee shall have complied with the requirements set forth in Section 7.6.2 , if applicable, and, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire;

(y) the assigning Lender and the Assignee shall have executed and delivered to the Borrower and the Administrative Agent an assignment agreement substantially in the form of Exhibit H (an “ Assignment Agreement ”), together with any documents required to be delivered thereunder, which Assignment Agreement shall have been accepted by the Administrative Agent and, if required, the Borrower; and

(z) in the case of an assignment to an Eligible Assignee other than an Approved Fund of the assigning Lender, the assigning Lender or the Assignee shall have paid the Administrative Agent a processing fee of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.

Subject to acceptance and recording thereof by the Administrative Agent in the Register, from and after the date on which the conditions described above have been met, (1) such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned and delegated to such Assignee pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder, and (2) the assigning Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it pursuant to such Assignment Agreement, shall be released from its obligations hereunder (and, in the case of an assignment of all of its Loans, shall cease to be a Lender (but shall continue to have all rights and obligations under provisions hereof which by their terms survive the termination hereof)). Any attempted assignment and delegation not made in accordance with this Section 14.7.1 shall be null and void. The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the list of Persons contemplated by clause (c) of the definition of Eligible Assignee provided by the Borrower and any updates thereto from time to time on the Platform, including that portion of the Platform that is designated for “public side” Lenders and/or (B) provide such list to each Lender requesting the same.

The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount (and stated interest) of the Loans and reimbursement obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.

Notwithstanding the foregoing provisions of this Section 14.7.1 or any other provision of this Agreement, (i) any Lender may at any time assign any portion of its Loans to a Federal Reserve Bank and (ii) any Lender that is an Approved Fund may assign any portion of its Loan

 

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to a trustee for the benefit of such Lender’s investors in connection with the financial leveraging of such Approved Fund; provided that no such assignment pursuant to clause (i)  or (ii)  shall release any Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.

14.7.2 Participations . Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell to one or more Eligible Assignees participating interests in any Loan owing to such Lender or any other interest of such Lender hereunder (any Person purchasing any such participating interest being herein called a “ Participant ”); provided that (w) such Lender shall remain the holder of its Loans, (x) the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder, (y) all amounts payable by the Borrower shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender and (z) no Participant shall have any direct or indirect voting or consent rights hereunder except with respect to any of the events described in clauses (i) , (ii)  and (iii)  of the third sentence of Section 14.1 . Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. The Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender; provided that such right of setoff shall be subject to the obligation of each Participant to share with the Lenders, and the Lenders agree to share with each Participant, as provided in Section 7.5 . The Borrower also agrees that each Participant shall be entitled to the benefits of Section 7.6 and Section 8 (subject to the requirements and limitations therein, including the requirements under Section 7.6 (it being understood that the documentation required under Section 7.6 shall be delivered to the participating Lender)) as if it were a Lender ( provided that no Participant shall receive any greater amount pursuant to Section 7.6 or Section 8 than would have been paid to the participating Lender if no participation had been sold, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 7.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 7.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the

 

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Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

14.7.3 Prohibited Assignments and Participations . Notwithstanding any other provision of this Agreement, no Lender may assign, or sell a participation in, any of its rights or obligations hereunder to any Loan Party or any Affiliate thereof.

14.7.4 Invalid Transfers. Any purported assignment or participation that is not in accordance with Section 14.7 shall be null and void.

14.8 Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THEREOF).

14.9 Severability . Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. All obligations of the Loan Parties and rights of the Agents and the Lenders expressed herein or in any other Loan Document shall be in addition to and not in limitation of those provided by applicable law.

14.10 Counterparts; Integration . This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement. This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of a counterpart hereof, or a signature page hereto, by facsimile or in a .pdf or similar file shall be effective as delivery of a manually executed original counterpart thereof. The words “execution,” “signed,” “signature,” and words of like import in any Assignment Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

14.11 Successors and Assigns . This Agreement shall be binding upon the Borrower, the Lenders, the Agents and their respective successors and assigns, and shall inure to the benefit of the Borrower, the Lenders, the Agents and the successors and assigns of the Borrower, the Lenders, and the Agents, except that (a) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender, and (b) no Lender may assign or otherwise transfer any of its rights or

 

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obligations hereunder except (i) to an assignee in accordance with the provisions of Section 14.7 , (ii) by way of participation in accordance with the provisions of Section 14.7.2 , or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 14.7.1 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 14.7.2 and, to the extent expressly contemplated hereby, Agent-Related Persons) any legal or equitable right, remedy or claim under or by reason of this Agreement.

14.12 Obligations Several . The obligations of the Lenders hereunder are several and not joint. Nothing contained in this Agreement and no action taken by any Lender pursuant hereto shall be deemed to constitute the Lenders a partnership, association, joint venture or other entity.

14.13 Voidable Transfers; Maximum Lawful Rate; Patriot Act .

14.13.1 If the incurrence or payment of any of the liabilities evidenced by this Agreement by the Borrower or the transfer to Administrative Agent, the Collateral Agent or Lenders of any property or assets is or should for any reason be subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party or Person under any federal or state bankruptcy law or code, state or federal law, common law or equitable cause or otherwise, including provisions of the federal bankruptcy code relating to fraudulent conveyances, preferences, or other voidable or recoverable payments of money or transfers of property (collectively, a “ Voidable Transfer ”), and if the Administrative Agent, the Collateral Agent or Lenders are required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that the Administrative Agent, the Collateral Agent and/or Lenders are required or elect to repay or restore, and as to all reasonable costs, expenses, and attorneys’ fees of the Administrative Agent, the Collateral Agent and Lenders, the liabilities of the Borrower evidenced by this Agreement shall automatically be revived, reinstated, and restored and shall exist as though such Voidable Transfer had never been made.

14.13.2 Anything herein to the contrary notwithstanding, the obligations of the Borrower hereunder shall be subject to the limitation that payments of interest shall not be required with respect to any Lender, for any period for which interest is computed hereunder, to the extent (but only to the extent) that contracting for or receiving such payment by such Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest which may be lawfully contracted for, charged or received by such Lender, and in such event the Borrower shall pay such Lender interest at the highest rate permitted by applicable law (“ Maximum Lawful Rate ”); provided, however, that if at any time thereafter the rate of interest payable to such Lender hereunder is less than the Maximum Lawful Rate, the Borrower shall continue to pay such Lender interest hereunder at the Maximum Lawful Rate until such time as the total interest received by the Administrative Agent, on behalf of such Lender, is equal to the total interest that would have been received had the interest payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Effective Date as otherwise provided in this Agreement.

 

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14.13.3 Each of the Agents and the Lenders hereby notifies each Loan Party that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) (the “ Patriot Act ”), it is required to obtain, verify, and record information that identifies such Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act.

14.14 Forum Selection and Consent to Jurisdiction . ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY (A) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE; (B) CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID TO SUCH ADDRESS AS DETERMINED PURSUANT TO SECTION 14.3 OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK; AND (C) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

14.15 Waiver of Jury Trial . THE BORROWER, THE COLLATERAL AGENT, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND SUCH OTHER LOAN DOCUMENTS.

 

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14.16 Treatment of Certain Information; Confidentiality . Each of the Agents and the Lenders agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; provided that Borrower shall be given notice by the applicable Lender prior to disclosure of Information under this clause (c) to the extent practicable and legally permissible; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder (it being understood that the list of Persons contemplated by clause (c) of the definition of Eligible Assignee may be disclosed to any assignee or Participant, or prospective assignee or Participant, in reliance on this clause (f)); (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the Loans or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans; (h) with the consent of the Borrower; or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, or (y) becomes available to any Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Loans.

For purposes of this Section, “ Information ” means all information received from the Borrower or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to any Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any of its Subsidiaries; provided that, in the case of information received from the Borrower or any of its Subsidiaries after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

14.17 No Fiduciary Duty . Each Agent, Lender and their Affiliates, may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their affiliates. The Borrower (on its own behalf and on behalf of the other Loan Parties) agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Agent, Lender or their respective

 

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Affiliates, on the one hand, and any Loan Party, its stockholders or its affiliates, on the other. The Borrower (on its own behalf and on behalf of the other Loan Parties) acknowledges and agrees that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between each Agent, Lender and their respective Affiliates, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Agent, Lender or their respective Affiliates has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Agent, Lender or their respective Affiliates has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Agent, Lender and their respective Affiliates is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person. The Borrower (on its own behalf and on behalf of the other Loan Parties) acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. The Borrower (on its own behalf and on behalf of the other Loan Parties) agrees that it will not claim that any Agent, Lender or their respective Affiliates has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.

14.18 Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and (b) the effects of any Bail-in Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability, (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document, or (iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.

 

GREEN PLAINS INC.
By:   /s/ Michelle Mapes
Name: Michelle Mapes

Title:

  EVP - General Counsel & Corp. Secretary

Term Loan Agreement

 


BNP PARIBAS, as Administrative Agent,

Collateral Agent and a Lender

By:   /s/ Andrew Shapiro
Name:   Andrew Shapiro
Title:   Managing Director
By:   /s/ James McHale
Name:   James McHale
Title:   Managing Director

Term Loan Agreement

Exhibit 10.1(b)

GUARANTY

THIS GUARANTY, dated as of August 29, 2017 (as amended, restated, supplemented or modified from time to time, the “ Guaranty ”), is executed in favor of BNP PARIBAS, as collateral agent (in such capacity, the “ Collateral Agent ”) and as administrative agent (in such capacity, the “ Administrative Agent ”) and the other Lender Parties (as defined below).

W I T N E S S E T H :

WHEREAS, Green Plains Inc. (the “ Borrower ”), the lenders party thereto from time to time, the Administrative Agent and the Collateral Agent, have entered into a Term Loan Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Loan Agreement ”; capitalized terms used but not defined herein have the respective meanings ascribed thereto in the Loan Agreement); and

WHEREAS, each of the undersigned will benefit from the making of Loans pursuant to the Loan Agreement and is willing to guarantee the respective Liabilities (as defined below) as hereinafter set forth;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the undersigned agrees as follows:

Each of the undersigned hereby, jointly and severally, absolutely, unconditionally and irrevocably, as primary obligor and not merely as surety, guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of: (a) all obligations of the Borrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, and whether for principal, interest, fees, reimbursement obligations, indemnities or otherwise (including, without limitation, interest accruing after, and advances made after, the commencement of an Insolvency Proceeding with respect to the Borrower, whether or not a claim for post-filing or post-petition interest or advances is allowed in such case or proceeding), that arise under or in connection with the Loan Agreement or any other Loan Document, as the same may be amended, modified, extended or renewed from time to time; and (b) all out-of-pocket costs and expenses (including reasonable attorneys’ fees and charges) paid or incurred by the Administrative Agent or any other Lender Party (as defined below) in enforcing this Guaranty or any other applicable Loan Document against such undersigned (all of the foregoing obligations, collectively, the “ Liabilities ” of such undersigned); provided that the liability of each of the undersigned hereunder shall be limited to the maximum amount of the applicable Liabilities that such undersigned may guarantee without rendering this Guaranty void or voidable with respect to such undersigned under any fraudulent conveyance or fraudulent transfer law. Each of the undersigned under this Guaranty desire to allocate among themselves, in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by any of the undersigned under this Guaranty or under any other guaranty related to the obligations under the Loan Agreement, such guarantor shall be entitled to a contribution from each of the other undersigned guarantors in the maximum amount permitted by law so as to maximize the aggregate amount of the Liabilities paid to the Lender Parties.


As used herein, “ Lender Party ” means the Administrative Agent, the Collateral Agent, and each Lender.

Each of the undersigned agrees that if any Event of Default occurs under Section 12.1.7 or 12.1.8 of the Loan Agreement at a time when the Liabilities are not otherwise due and payable in full (whether due to a judicial stay of acceleration or otherwise), then such undersigned will pay to the Administrative Agent for the account of the Lender Parties forthwith the full amount that would be payable hereunder by such undersigned if all Liabilities were then due and payable.

Each of the undersigned is (i) duly formed or organized and is validly existing and in good standing under the laws of the jurisdiction in which it was formed and (ii) has full power and authority to execute this Guaranty. This Guaranty has been duly and validly executed by or on behalf of each of the undersigned and constitutes the legal, valid and binding obligation of each of the undersigned and is enforceable against each of them in accordance with its terms, subject, as to enforceability, to the effect of applicable bankruptcy, insolvency and other similar laws limiting the enforcement of creditors’ rights generally and to general principles of equity. The execution, delivery and performance of this Guaranty by each of the undersigned does not and will not violate, or contravene (x) its Organizational Documents, (y) any existing license, contract, indenture or other agreement binding upon any of them or (z) any existing law, statute, regulation, order, decree or judgment applicable to any of them or their respective property. No authorization, approval, or other action by, and no notice to or filing with, any governmental authority, regulatory body or any other Person is required for the execution, delivery, and performance of this Guaranty by any of the undersigned.

To secure all obligations of each of the undersigned hereunder, the Collateral Agent and each other Lender Party shall have a Lien on and security interest in all balances, credits, deposits, accounts or moneys of or in the name of such undersigned now or hereafter held with the Collateral Agent or such other Lender Party and any and all property of every kind or description of or in the name of such undersigned now or hereafter, for any reason or purpose whatsoever, in the possession or control of, or in transit to, the Collateral Agent or such other Lender Party or any agent or bailee for the Collateral Agent or such other Lender Party. Subject to the terms of the Loan Documents and the ABL Intercreditor Agreements, each Lender Party may, at its option, offset balances held by such Lender Party for the account of any of the undersigned (at any of its offices and regardless of whether such balances are then due to such undersigned), against any Liabilities of such undersigned owing to such Lender Party that are not paid when due (by acceleration or otherwise).

This Guaranty shall in all respects be a continuing, irrevocable, absolute and unconditional guaranty of payment and performance and not merely a guaranty of collectability, and shall remain in full force and effect (notwithstanding the dissolution of any of the undersigned, that at any time or from time to time no Liabilities are outstanding or any other circumstance) until all Liabilities have been indefeasibly paid in full in cash.

 

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Each of the undersigned further agrees that if at any time all or any part of any payment theretofore applied by the Administrative Agent or any other Lender Party to any of the Liabilities is or must be rescinded or returned by the Administrative Agent or such other Lender Party for any reason whatsoever (including the insolvency, bankruptcy or reorganization of the Borrower or any of the undersigned), such Liabilities shall, for purposes of this Guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Administrative Agent or such other Lender Party, and this Guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Administrative Agent or such other Lender Party had not been made.

The Administrative Agent or any other Lender Party may, from time to time, at its sole discretion and without notice to any of the undersigned in their capacity as guarantors hereunder, take any or all of the following actions without affecting the obligations of any of the undersigned hereunder: (a) retain or obtain a security interest in any property to secure any of the Liabilities or any obligation hereunder, (b) retain or obtain the primary or secondary obligation of any other obligor or obligors (in addition to each of the undersigned) with respect to any of the Liabilities, (c) extend, modify, restate, amend or renew any of the Liabilities for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any of the undersigned hereunder or any other guarantor or any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release any security interest in, or surrender, release or permit any substitution or exchange for, any property securing any Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to any of the undersigned for payment of any of the Liabilities when due, whether or not the Administrative Agent or such other Lender Party shall have resorted to any property securing any of the Liabilities or any obligation hereunder or shall have proceeded against any of the undersigned or any other obligor primarily or secondarily obligated with respect to any of the Liabilities.

Any amount received by the Administrative Agent or any Lender Party from whatever source on account of the Liabilities may be applied by it toward the payment of the Liabilities in accordance with the Loan Documents and, notwithstanding any payment made by or for the account of any of the undersigned pursuant to this Guaranty, each of the undersigned shall not exercise any right of subrogation to any right of any Lender Party until such time as this Guaranty shall have been terminated as to all of the undersigned and the Lender Parties shall have received final payment in cash of the full amount of all Liabilities.

In case any payment is made on account of the Liabilities by any of the undersigned or is received or collected on account of the Liabilities from any of the undersigned or its property: (a) if such payment is made by an undersigned or from its property in respect of the Liabilities of another undersigned, such undersigned shall be entitled, subject to and upon (but not before) such time as this Guaranty shall have been terminated as to all of the undersigned and the Lender Parties shall have received final payment in cash of the full amount of all Liabilities, (i) to

 

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demand and enforce reimbursement for the full amount of such payment from such other undersigned, and (ii) to demand and enforce contribution in respect of such payment from each other undersigned which has not paid its fair share of such payment, as necessary to ensure that (after giving effect to any enforcement of reimbursement rights provided hereby) each undersigned pays its fair share of the unreimbursed portion of such payment; and (b) if and whenever any right of reimbursement or contribution becomes enforceable by any of the undersigned against any other undersigned whether under this paragraph or otherwise, such undersigned shall be entitled, subject to and upon (but not before) such time as this Guaranty shall have been terminated as to all of the undersigned and the Lender Parties shall have received final payment in cash of the full amount of all Liabilities, to be subrogated (equally and ratably with each of the other undersigned entitled to reimbursement or contribution from any other undersigned as set forth in this paragraph) to any security interest that may then be held by the Collateral Agent upon any Collateral securing or purporting to secure any of the Liabilities. For purposes of (a)(ii) above, , the fair share of each undersigned as to any unreimbursed payment shall be determined based on an equitable apportionment of such unreimbursed payment among all of the undersigned (other than the undersigned whose primary obligations were so guaranteed by each of the other undersigned) based on the relative value of their assets and any other equitable considerations deemed appropriate by the court. Any right of subrogation of any of the undersigned shall be enforceable solely after such time as this Guaranty shall have been terminated as to all of the undersigned and the Lender Parties shall have received final payment in cash of the full amount of all Liabilities and solely against each of the undersigned, and not against the Lender Parties, and neither the Collateral Agent nor any other Lender Party shall have any duty whatsoever to warrant, ensure or protect any such right of subrogation or to obtain, perfect, maintain, hold, enforce or retain any Collateral securing or purporting to secure any of the Liabilities for any purpose related to any such right of subrogation. All rights and claims arising under this paragraph or based upon or relating to any other right of reimbursement, indemnification, contribution or subrogation that may at any time arise or exist in favor of any of the undersigned as to any payment on account of either (x) the Liabilities or (y) any other obligation that is secured by any Collateral that also secures or purports to secure any of the Liabilities, in each case made by it or received or collected from its property shall be fully subordinated to the Liabilities in all respects prior to such time as this Guaranty shall have been terminated as to all of the undersigned and the Lender Parties shall have received final payment in cash of the full amount of all Liabilities. Until such time as this Guaranty shall have been terminated as to all of the undersigned and the Lender Parties shall have received final payment in cash of the full amount of all Liabilities, none of the undersigned may demand or receive any collateral security, payment or distribution whatsoever (whether in cash, property or securities or otherwise) on account of any such right or claim. If any such payment or distribution is made or becomes available to any of the undersigned in any bankruptcy case, receivership, or insolvency or liquidation proceeding, such payment or distribution shall be delivered by the person making such payment or distribution directly to the Collateral Agent, for application to the payment of the Liabilities. If any such payment or distribution is received by any of the undersigned, it shall be held by such undersigned in trust, as trustee of an express trust for the benefit of the Lender Parties, and shall forthwith be transferred and delivered by such undersigned to the Collateral Agent, in the exact form received and, if necessary, duly endorsed.

 

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Each of the undersigned hereby expressly waives: (a) notice of the acceptance by any Lender Party of this Guaranty, (b) notice of the existence or creation or non-payment of all or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and (d) all diligence in collection or protection of or realization upon any Liabilities or any security for or guaranty of any Liabilities.

The creation or existence from time to time of additional Liabilities to any Lender Party is hereby authorized, without notice to any of the undersigned, and shall in no way affect or impair the rights of any Lender Party or the obligations of any of the undersigned under this Guaranty.

Subject to the provisions of the Loan Agreement, any Lender Party may from time to time, without notice to any of the undersigned, assign or transfer any of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent permitted assignment or permitted transfer thereof, such Liabilities shall be and remain Liabilities for purposes of this Guaranty, and each and every immediate and successive permitted assignee or permitted transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this Guaranty to the same extent as if such assignee or transferee were an original Lender Party.

No delay on the part of any Lender Party in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by any Lender Party of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy, nor shall any modification or waiver of any provision of this Guaranty be binding upon any Lender Party except as expressly set forth in a writing duly signed and delivered on behalf of the Administrative Agent. No action of any Lender Party permitted hereunder shall in any way affect or impair the rights of any Lender Party or the obligations of any of the undersigned under this Guaranty. For purposes of this Guaranty, Liabilities shall include all obligations of the Borrower to any Lender Party arising under or in connection with any Loan Document, notwithstanding any right or power of the Borrower or anyone else to assert any claim or defense as to the invalidity or unenforceability of any obligation, and no such claim or defense shall affect or impair the obligations of any of the undersigned hereunder.

Pursuant to the Loan Agreement, (a) this Guaranty has been delivered to the Administrative Agent and (b) the Administrative Agent has been authorized to enforce this Guaranty on behalf of the Lender Parties. All payments by any of the undersigned pursuant to this Guaranty shall be made to the Administrative Agent (and any amount received by the Administrative Agent for the account of a Lender Party shall, subject to the other provisions of this Guaranty, be deemed received by such Lender Party upon receipt by the Administrative Agent) at such office or account of the Administrative Agent as the Administrative Agent may designate from time to time, in lawful money of the United States of America and in immediately available funds without setoff, recoupment, deduction, defense or counterclaim and free and clear of, and, except as required by applicable law, without deduction or withholding for or on account of, any Taxes, but excluding Taxes imposed on or measured by the Administrative Agent’s net income by the jurisdiction of the Administrative Agent’s organization, the United States of America, the State or City of New York or any taxing authority thereof. If, under

 

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applicable law, any such Taxes are required to be deducted or withheld from any such payment, each of the undersigned will pay additional interest or will make additional payments in such amounts as may be necessary so that the net amount received by the Administrative Agent, after withholding or deduction therefor and for any Taxes and other taxes on such additional interest or amounts, will be equal to the amount provided for herein. Each of the undersigned agrees to furnish promptly to the Administrative Agent official receipts evidencing payment of any Taxes so withheld or deducted. Each of the undersigned hereby agrees to indemnify the Administrative Agent for, and to hold the Administrative Agent harmless against, the full amount of Taxes imposed on or paid by the Administrative Agent, and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. The indemnity by each of the undersigned provided for in this paragraph shall apply and be made whether or not the Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by each of the undersigned under the indemnity set forth in this paragraph shall be paid within ten (10) days from the date on which the Administrative Agent makes written demand therefor. Determinations by the Administrative Agent pursuant to this paragraph shall be conclusive absent manifest error, and the provisions of this paragraph shall survive termination of this Guaranty.

Each of the undersigned acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower such information concerning the financial condition, business and operations of the Borrower as such undersigned requires, and that the Lender Parties have no duty, and such undersigned is not relying on the Lender Parties at any time, to disclose to such undersigned any information relating to the business, operations or financial condition of the Borrower.

Any other Person may become a guarantor hereunder and become bound by the terms and conditions of this Guaranty, in each case effective as of the date set forth in the applicable Joinder, by executing and delivering to the Administrative Agent a Joinder to Guaranty substantially in the form attached hereto as Exhibit “A” (a “ Joinder ”).

This Guaranty shall be binding upon each of the undersigned and their respective successors and assigns, and to the extent that any of the undersigned is a partnership, corporation, limited liability company or other entity, all references herein to any of the undersigned shall be deemed to include any successor or successors, whether immediate or remote, to such undersigned. The term “undersigned” as used herein shall mean all parties executing this Guaranty and each of them, and all such parties shall, to the extent set forth herein, be jointly and severally obligated hereunder.

THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THEREOF). Whenever possible each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

 

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Consistent with the foregoing, and notwithstanding any other provision of this Guaranty to the contrary, in the event that any action or proceeding is brought in whatever form and in whatever forum seeking to invalidate any Guarantor’s obligations under this Guaranty under any fraudulent conveyance theory, fraudulent transfer theory, or similar avoidance theory, whether under state or federal law, such Guarantor (the “ Affected Guarantor ”), automatically and without any further action being required of such Affected Guarantor or any Lender Party, shall be liable under this Guaranty only for an amount equal to the maximum amount of liability that could have been incurred under applicable law by such Affected Guarantor under any guaranty of the Liabilities (or any portion thereof) at the time of the execution and delivery of this Guaranty (or, if such date is determined not to be the appropriate date for determining the enforceability of such Affected Guarantor’s obligations hereunder for fraudulent conveyance or transfer (or similar avoidance) purposes, on the date determined to be so appropriate) without rendering such a hypothetical guaranty voidable under applicable law relating to fraudulent conveyance, fraudulent transfer, or any other grounds for avoidance (such highest amount determined hereunder being any such Affected Guarantor’s “ Maximum Guaranty Amount ”), and not for any greater amount, as if the stated amount of this Guaranty as to such Affected Guarantor had instead been the Maximum Guaranty Amount. This paragraph is intended solely to preserve the rights of the Lender Parties under this Guaranty to the maximum extent not subject to avoidance under applicable law, and neither any Affected Guarantor nor any other person or entity shall have any right or claim under this paragraph with respect to the limitation described in this Guaranty, except to the extent necessary so that the obligations of any Affected Guarantor under this Guaranty shall not be rendered voidable under applicable law. Without limiting the generality of the foregoing, the determination of a Maximum Guaranty Amount for any Affected Guarantor pursuant to the provisions of the second preceding sentence of this paragraph shall not in any manner reduce or otherwise affect the obligations of any other Guarantor (including any other Affected Guarantor) under the provisions of this Guaranty.

This Guaranty may be executed in any number of counterparts (including via facsimile or in a .pdf or similar file) and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute one and the same Guaranty.

Other than automatic modifications related to the addition of a party hereto pursuant to a Joinder, no amendment, modification or waiver of, or consent with respect to, any provision of this Guaranty shall be effective unless the same shall be in writing and signed and delivered by the Administrative Agent, and then such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.

Unless otherwise agreed by the Lender Parties and each of the undersigned in writing, this Guaranty is not intended to supersede or otherwise affect any other guaranty now or hereafter given by such undersigned for the benefit of the Lender Parties or any term or provision thereof.

The obligations of each of the undersigned under this Guaranty are secured pursuant to the Collateral Documents (as amended, restated, supplemented or otherwise modified from time to time) and may be secured by one or more other agreements (including one or more pledge agreements, mortgages, deeds of trust or other similar documents).

 

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ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS GUARANTY, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED AND THE ADMINISTRATIVE AGENT HEREBY EXPRESSLY AND IRREVOCABLY (A) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE; (B) CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID TO THE ADDRESS SET FORTH BENEATH ITS NAME ON THE SIGNATURE PAGES HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE OTHER PARTIES AS ITS ADDRESS FOR NOTICE HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK; AND (C) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH LENDER PARTY, HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH OF THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THE FOREGOING WAIVER AND THAT SUCH WAIVER IS A MATERIAL INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.

[Remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, this Guaranty has been duly executed and delivered as of the day and year first above written.

Notice Address for each Guarantor :

1811 Aksarben Drive

Omaha, NE 68106

Attention: Michelle Mapes – EVP General Counsel

                  & Corporate Secretary

Facsimile: (402) 952-4916

Email: michelle.mapes@gpreinc.com

 

GREEN PLAINS I LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS II LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
FLEISCHMANN’S VINEGAR COMPANY, INC.
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS AGRICULTURAL AND ENERGY FUND LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary

Signature page to Guaranty

 


GREEN PLAINS ASSET MANAGEMENT LLC

By:  /s/ Michelle Mapes                                             

Name:  

Michelle Mapes

Title:  

EVP - General Counsel & Corp. Secretary

 

GREEN PLAINS COMMODITY MANAGEMENT LLC

By: /s/ Michelle Mapes                                             

Name:  

Michelle Mapes

Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS CATTLE COMPANY LLC

By: /s/ Michelle Mapes                                             

Name:  

Michelle Mapes

Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS GRAIN COMPANY LLC

By: /s/ Michelle Mapes                                             

Name:  

Michelle Mapes

Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS GRAIN COMPANY TN LLC

By: /s/ Michelle Mapes                                             

Name:  

Michelle Mapes

Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS INDUSTRIAL CLEANING SERVICES LLC

By: /s/ Michelle Mapes                                             

Name:  

Michelle Mapes

Title:  

EVP - General Counsel & Corp. Secretary

Signature page to Guaranty

 


GREEN PLAINS TRADE GROUP LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS TRUCKING LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS HEREFORD LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS HOPEWELL LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS MADISON LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS MOUNT VERNON LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary

Signature page to Guaranty


GREEN PLAINS YORK LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS PROCESSING LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS ATKINSON LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS BLUFFTON LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS CENTRAL CITY LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS COMMODITIES LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary

Signature page to Guaranty


GREEN PLAINS CORN OIL LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS FAIRMONT LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS HOLDINGS II LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS OBION LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS ORD LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS OTTER TAIL LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary

Signature page to Guaranty

 


GREEN PLAINS SHENANDOAH LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS SUPERIOR LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary
GREEN PLAINS WOOD RIVER LLC
By: /s/ Michelle Mapes                                             
Name: Michelle Mapes
Title: EVP - General Counsel & Corp. Secretary

Signature page to Guaranty

 


ACKNOWLEDGED AND AGREED:

 

BNP PARIBAS,
as Administrative Agent and as
Collateral Agent
By: /s/ Andrew Shapiro                                             
Name: Andrew Shapiro
Title: Managing Director
By: James McHale                                                     
Name: James McHale
Title: Managing Director

Signature page to Guaranty

 

Exhibit 10.1(c)

PLEDGE AGREEMENT

THIS PLEDGE AGREEMENT, dated as of August 29, 2017 (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement ”), is among Green Plains Inc. (the “ Borrower ”), each Subsidiary of the Borrower that from time to time becomes a party hereto (together with the Borrower, individually each a “ Pledgor ” and collectively the “ Pledgors ”) and BNP Paribas, as collateral agent (in such capacity, the “ Collateral Agent ”).

W I T N E S S E T H:

WHEREAS, the Borrower, the lenders party thereto, the Collateral Agent, and BNP Paribas, as administrative agent (in such capacity, the “ Administrative Agent ”) have entered into a Term Loan Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Loan Agreement ”);

WHEREAS, pursuant to a Guaranty, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Guaranty ”), each Pledgor (other than the Borrower) has guaranteed the obligations of the Borrower under or in connection with the Loan Agreement; and

WHEREAS, the obligations of the Borrower under the Loan Documents (as defined in the Loan Agreement), and the obligations of each other Pledgor under the applicable Guaranty are to be secured pursuant to this Agreement;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions and Interpretation . (a) In addition to terms defined in the preamble and recitals above, (i) capitalized terms used but not defined herein have the respective meanings assigned to such terms in the Loan Agreement and (ii) the following terms have the following meanings:

Collateral ” – see Section 2 .

Certificated Security ” shall have the meaning assigned to such term in the UCC.

Default ” means (a) any Event of Default; and (b) any Unmatured Event of Default under Section 12.1.7 or 12.1.8 of the Loan Agreement.

Excluded Foreign Subsidiary Voting Equity Interests ” shall mean any voting Equity Interests in excess of 65% of the total outstanding amount of any class of voting Equity Interests of any Foreign Subsidiary described in clauses (a) or (b) of the definition of Foreign Subsidiary.

Indemnitee ” and “ Indemnitees ” – see Section 8 .


Issuer ” means the issuer of any of the Equity Interests representing any of the Collateral.

Lender Party ” means the Administrative Agent, the Collateral Agent and each Lender.

Liabilities ” means (a) with respect to the Borrower, (i) all obligations of the Borrower under or in connection with the Loan Agreement or any other Loan Document (including this Agreement); (b) with respect to any other Pledgor, all obligations of such Pledgor under or in connection with the Guaranty or any other Loan Document (including this Agreement), in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, due or to become due; and (c) with respect to any Pledgor, and whether or not constituting obligations under any Loan Document, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower or any other Pledgor, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding.

Pari Passu Collateral Agent ” see Section 8 .

UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

Uncertificated Security ” shall have the meaning assigned to such term in the UCC.

(b) The rules of interpretation set forth in Section 1.2 of the Loan Agreement shall apply as if fully set forth herein, mutatis mutandis .

2. Pledge . As collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Liabilities, each Pledgor hereby pledges to the Collateral Agent for the benefit of the Lender Parties, and grants to the Collateral Agent for the benefit of the Lender Parties a continuing security interest in, all of such Pledgor’s right, title, and interest in, to and under the following, in each case, wherever located and whether now existing or hereafter arising or acquired:

A. All of the Equity Interests described in Schedule I opposite the name of such Pledgor, all certificates and/or instruments representing such Equity Interests, cash, securities, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any of such Equity Interests, and management rights, all voting rights, any interest in any capital account of a member in each limited liability company and partner in each partnership, all rights as and to become a member of each limited liability company and a partner in

 

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each partnership, all rights of the Pledgor under any shareholder or voting trust agreement or similar agreement in respect of each limited liability company and partnership, all of the Pledgor’s right, title and interest as a member and partner to any and all assets or properties of each limited liability company and partnership, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing;

B. All additional Equity Interests of any Issuer from time to time acquired by such Pledgor in any manner, all certificates representing such additional Equity Interests, cash, securities, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any of such Equity Interests, and management rights, all voting rights, any interest in any capital account of a member in each limited liability company and partner in each partnership, all rights as and to become a member of each limited liability company and a partner in each partnership, all rights of the Pledgor under any shareholder or voting trust agreement or similar agreement in respect of each limited liability company and partnership, all of the Pledgor’s right, title and interest as a member and partner to any and all assets or properties of each limited liability company and partnership, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing;;

C. All other property delivered to the Collateral Agent by such Pledgor in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such property, all cash, securities, interest, dividends, rights and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any such property;

D. All books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and

E. All products, proceeds, accessions, rents and profits of, to or from all of the foregoing.

All of the foregoing are herein collectively called the “ Collateral ”; provided , that, notwithstanding anything to the contrary in this Agreement, none of the Excluded Foreign Subsidiary Voting Equity Interests shall constitute Collateral.

Each Pledgor represents as of the date hereof to the Collateral Agent and the other Lender Parties that Schedule I contains an accurate and complete listing of all Equity Interests owned by such Pledgor. Each Pledgor agrees to deliver to the Collateral Agent, promptly upon receipt and in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank), any certificates evidencing the Collateral and all other Collateral (other than dividends that such Pledgor is entitled to receive and retain pursuant to Section 6 ) that may at any time or from time to time be in or come into the possession or control of such Pledgor.

 

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Notwithstanding anything herein to the contrary, (i) each Pledgor shall remain liable for all obligations under the Collateral and nothing contained herein is intended or shall be a delegation of duties to the Collateral Agent or any Lender Party, and (ii) each Pledgor shall remain liable under each of the agreements included in the Collateral, including, without limitation, any agreements relating to Equity Interests in any partnership or limited liability company, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither the Collateral Agent nor any Lender Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall the Collateral Agent or any Lender Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including, without limitation, any agreements relating to any Equity Interests in any partnership or limited liability company.

3. Warranties; Further Assurances . Each Pledgor warrants to the Collateral Agent and the other Lender Parties that: (a) such Pledgor is (or at the time of any future delivery, pledge, assignment or transfer thereof will be) the legal and beneficial owner of such Pledgor’s Collateral free and clear of all Liens other than the security interest created hereunder and under the other Loan Documents and Permitted Liens; (b) to the extent such Pledgor’s Collateral is represented by certificated securities, the pledge and delivery of such Pledgor’s Collateral pursuant to this Agreement will create a valid perfected security interest in such Collateral in favor of the Collateral Agent; (c) to the extent such Pledgor’s Collateral is represented by uncertificated securities, such Pledgor has caused the issuer thereof either to (i) register the Collateral Agent as the registered owner of such security or (ii) agree in an authenticated record with such Pledgor and the Collateral Agent that such issuer will comply with instructions with respect to such security originated by the Collateral Agent without further consent of such Pledgor, (d) all Equity Interests pledged by such Pledgor referred to on Schedule I opposite the name of such Pledgor are duly authorized, validly issued, fully paid and non-assessable; (e) all Collateral is either presently uncertificated or represented by certificates as listed on Schedule I hereto, and the pledge granted hereunder extends to all rights with respect thereto, including membership rights and partnership rights, economic rights, voting rights, control rights and the right to become a member and partner, as applicable, (f) as of the date hereof, there are no existing options, warrants, calls or commitments of any character whatsoever relating to the Collateral, (g) as to each Issuer whose name appears in Schedule I opposite the name of such Pledgor, such Pledgor’s Collateral represents on the date hereof not less than the applicable percentage (as shown in Schedule I ) of the total shares of capital stock or other Equity Interests issued and outstanding of such Issuer; and (h) the information set forth on Schedule I opposite the name of such Pledgor is true and accurate in all respects.

Until all Liabilities (other than contingent indemnification obligations that are not yet due and payable) have been indefeasibly paid in full in cash, each Pledgor shall (i) not, except as permitted by the Loan Agreement, sell, assign, exchange, pledge or otherwise transfer, encumber, or grant any option, warrant or other right to purchase the stock of any Issuer that is

 

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pledged hereunder; (ii) deliver such UCC financing statements and other documents (and pay the costs of filing and recording the same in all public offices deemed necessary or appropriate by the Collateral Agent) and do such other acts and things as are necessary or as the Collateral Agent may from time to time reasonably request, to establish and maintain a valid, perfected security interest in such Pledgor’s Collateral (free of all other Liens, claims and rights of third parties whatsoever, other than Permitted Liens) to secure the performance and payment of the Liabilities (and by its signature hereto, such Pledgor authorizes the Collateral Agent to file any financing statements without the signature of such Pledgor, which financing statements may contain an indication or description of collateral that describes such property in any manner as the Collateral Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral); (iii) promptly execute and deliver to the Collateral Agent such stock powers, issuer acknowledgments and similar documents relating to such Pledgor’s Collateral, satisfactory in form and substance to the Collateral Agent, as the Collateral Agent may reasonably request; and (iv) promptly furnish the Collateral Agent or any other Lender Party such information concerning such Pledgor’s Collateral as the Collateral Agent or such Lender Party may from time to time reasonably request, and permit the Collateral Agent or any Lender Party or any designee of the Collateral Agent or such Lender Party, from time to time at reasonable times and on reasonable notice (or at any time without notice during the existence of a Default), to inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Pledgor which pertain to such Pledgor’s Collateral, and will, upon request of the Collateral Agent, deliver to the Collateral Agent copies of such records and papers.

No Pledgor will allow any of its Subsidiaries:

(a) that is a corporation, business trust, joint stock company or similar Person, to issue uncertificated securities;

(b) that is a partnership or limited liability company, to (i) issue Equity Interests that are to be dealt in or traded on securities exchanges or in securities markets, (ii) expressly provide in its Organizational Documents that its Equity Interests are securities governed by Article 8 of the UCC, or (iii) place such Subsidiary’s Equity Interests in a Securities Account (as defined in the UCC); and

(c) to issue Equity Interests in addition to or in substitution for the Equity Interests pledged hereunder, except to such Pledgor (and such Equity Interests are immediately pledged and delivered to the Collateral Agent pursuant to the terms of this Agreement).

4. Delivery and Control of Pledged Equity Interests .

(a) If any of the Collateral is or shall become evidenced or represented by any Certificated Security, such Certificated Security shall be promptly delivered to the Collateral Agent, duly endorsed in a manner satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement.

 

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(b) If any of the Collateral is or shall become evidenced or represented by an Uncertificated Security, such Pledgor shall cause the Issuer thereof either (i) to promptly register the Collateral Agent as the registered owner of such Uncertificated Security, upon original issue or registration of transfer or (ii) to promptly agree in writing with such Pledgor and the Collateral Agent that such Issuer will comply with instructions with respect to such Uncertificated Security originated by the Collateral Agent without further consent of such Pledgor, such agreement to be in substantially in form and substance reasonably satisfactory to the Collateral Agent.

(c) In addition to and not in lieu of the foregoing, if any Issuer of any pledged Equity Interests is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States, each Pledgor shall promptly take such additional actions, including, without limitation, causing the issuer to register the pledge on its books and records, as may be necessary or advisable or as may be reasonably requested by the Collateral Agent, under the laws of such jurisdiction to insure the validity, perfection and priority of the security interest of the Collateral Agent.

5. Holding in Name of Collateral Agent, etc . The Collateral Agent may from time to time during the existence of a Default, without notice to the Pledgors, take any of the following actions: (a) transfer any Collateral into the name of the Collateral Agent or any nominee or sub-agent for the Collateral Agent, with or without disclosing that such Collateral is subject to the Lien and security interest hereunder, (b) appoint one or more sub-agents or nominees for the purpose of retaining physical possession of the Collateral, (c) notify the parties obligated on any of the Collateral to make payment to the Collateral Agent of any amounts due or to become due thereunder, (d) endorse any checks, drafts or other writings in the name of any Pledgor to allow collection of the Collateral, (e) enforce collection of any of the Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or renew for any period (whether or not longer than the original period) any obligation of any nature of any party with respect thereto and (f) take control of any proceeds of the Collateral.

6. Voting Rights, Dividends, etc . (a) So long as the Collateral Agent has not given the notice referred to in Section 6(b) below:

(i) The Pledgors shall be entitled to exercise any and all voting or consensual rights and powers and stock purchase or subscription rights (but any such exercise by the Pledgors of stock purchase or subscription rights may be made only from funds of the Pledgors not comprising part of the Collateral required to be delivered to the Collateral Agent hereunder) relating or pertaining to the Collateral or any part thereof for any purpose; provided that each Pledgor agrees that it will not exercise any such right or power in any manner which would violate this Agreement or any other Loan Document.

(ii) The Pledgors shall be entitled to receive and retain any and all lawful dividends payable in respect of the Collateral that are paid in cash by any Issuer if such dividends are not prohibited by the Loan Agreement, but all dividends and distributions in respect of the Collateral or any part thereof made in Equity Interests or other property or representing any return of capital, whether resulting from a subdivision, combination or reclassification of Collateral or any part thereof or received in exchange

 

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for Collateral or any part thereof or as a result of any merger, consolidation, acquisition or other exchange of assets to which any Issuer may be a party or otherwise or as a result of any exercise of any stock purchase or subscription right, shall be part of the Collateral hereunder and, if received by any Pledgor, shall be forthwith delivered to the Collateral Agent in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank) to be held for the purposes of this Agreement.

(iii) The Collateral Agent shall execute and deliver, or cause to be executed and delivered, to the applicable Pledgor, all proxies, powers of attorney, dividend orders and other instruments as such Pledgor may request for the purpose of enabling such Pledgor to exercise the rights and powers that it is entitled to exercise pursuant to Section 6(a)(i) above and to receive the dividends that it is authorized to retain pursuant to Section 6(a)(ii) above.

(b) Upon notice from the Collateral Agent during the existence of a Default, and so long as the same shall be continuing, all rights and powers that the Pledgors are entitled to exercise pursuant to Section 6(a)(i) hereof, and all rights of the Pledgors to receive and retain dividends pursuant to Section 6(a)(ii) hereof, shall forthwith cease, and all such rights and powers shall thereupon become vested in the Collateral Agent which shall have, during the existence of such Default, the sole and exclusive authority to exercise such rights and powers and to receive such dividends. Any and all money and other property paid over to or received by the Collateral Agent pursuant to this Section 6(b) shall be retained by the Collateral Agent as additional Collateral hereunder and applied in accordance with the provisions hereof.

7. Remedies . During the existence of a Default, the Collateral Agent may, and at the direction of the Required Lenders shall, exercise from time to time any rights and remedies available to it under the UCC or otherwise available to it. Without limiting the foregoing, during the existence of a Default, the Collateral Agent (a) may, to the fullest extent permitted by applicable law, without notice, advertisement, hearing or process of law of any kind (except as set forth in the following sentence), (i) sell any Collateral, free of all rights and claims of any Pledgor therein, at any public or private sale or brokers’ board and (ii) bid for and purchase any Collateral at any such public sale and (b) shall have the right, for and in the name, place and stead of the applicable Pledgor, to execute endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to any Collateral. Each Pledgor hereby expressly waives, to the fullest extent permitted by applicable law, any and all notices, advertisements, hearings or processes of law in connection with the exercise by the Collateral Agent of any of its rights and remedies during the existence of a Default; provided that, unless the Collateral Agent determines that the applicable Collateral is declining speedily in value or is of a type that is customarily sold on a recognized market, the Collateral Agent shall give the applicable Pledgor at least ten days’ prior written notice of either the time and place of any public sale of any Collateral or of the time after which any private sale or other intended disposition of any Collateral is to be made (and each Pledgor agrees that notice so given shall be deemed to be reasonable and proper for all purposes). Any cash proceeds of any disposition by the Collateral Agent of any Collateral shall be applied by the Collateral Agent, pursuant to the terms of the Loan Agreement, to the payment of the Liabilities until paid in full, and any surplus will be paid to the applicable Pledgor or as a court of competent jurisdiction shall direct.

 

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Each Pledgor authorizes the Collateral Agent to comply with any limitation or restriction in connection with any sale of Collateral as it may be advised by counsel is necessary in order to (A) avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers and/or further restrict such prospective bidders or purchasers to Persons that will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral) or (B) obtain any required approval of the sale or of the purchase by any governmental regulatory authority or official, and each Pledgor agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner and that the Collateral Agent shall not be liable or accountable to any Pledgor for any discount allowed by reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.

Each Pledgor hereby appoints the Collateral Agent as the attorney-in-fact for such Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing or completing any instruments which the Collateral Agent may reasonably deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest; provided that the Collateral Agent shall not exercise its rights as such attorney-in-fact unless a Default exists.

8. General . The Collateral Agent shall exercise reasonable care in the custody and preservation of any Collateral in its possession (and the Collateral Agent shall be deemed to have exercised such reasonable care if it takes any action that the applicable Pledgor requests in writing for such purpose, but failure of the Collateral Agent to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and no failure of the Collateral Agent to preserve or protect any right with respect to any Collateral against prior parties in interest or other rights pertaining to the Collateral, shall be deemed a failure to exercise reasonable care in the custody or preservation of such Collateral).

All notices and requests hereunder shall be given in accordance with Section 14.3 of the Loan Agreement and sent to the applicable party at its address described therein, at the address shown for such party on Schedule II or at such other address as such party may, by written notice to the other parties, have designated as its address for such purpose.

No delay on the part of the Collateral Agent in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Collateral Agent of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies hereunder provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights and remedies provided by law.

This Agreement shall remain in full force and effect until all Liabilities (other than contingent indemnification obligations that are not yet due and payable) have been indefeasibly paid in full in cash. Upon any such termination, the Collateral Agent will, upon

 

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any Pledgor’s request and at such Pledgor’s sole expense, (a) deliver to such Pledgor, without any representation, warranty or recourse of any kind whatsoever, all of such Pledgor’s Collateral held by the Collateral Agent hereunder as shall not have been sold or otherwise applied pursuant to the terms hereof and (b) execute and deliver to such Pledgor such documents as such Pledgor shall reasonably request to evidence such termination and the release of any security interest granted hereby. If at any time all or any part of any payment theretofore applied by the Collateral Agent or any other Lender Party to any of the Liabilities is or must be rescinded or returned by the Collateral Agent or such Lender Party for any reason whatsoever (including the insolvency, bankruptcy or reorganization of any Pledgor), such Liabilities shall, for the purposes of this Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Collateral Agent or such other Lender Party, and this Agreement shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Collateral Agent or such other Lender Party had not been made.

If any of the Collateral shall be disposed of by any Pledgor in a transaction permitted by the Loan Agreement, then, the Collateral Agent, at the request and sole expense of such Pledgor, shall execute and deliver to such Pledgor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral; provided that the Pledgor shall have delivered to the Collateral Agent a written request for release identifying the relevant Pledgor and Collateral to be released, together with a certification by the Borrower stating that such transaction is in compliance with the Loan Agreement and the other Loan Documents and that the proceeds of such disposition will be applied in accordance therewith. At the request and sole expense of the Borrower, a Pledgor shall be released from its obligations hereunder in the event that all the Equity Interests of such Pledgor shall be disposed of in a transaction permitted by the Loan Agreement; provided that the Borrower shall have delivered to the Collateral Agent a written request for release identifying the relevant Pledgor, together with a certification by the Borrower stating that such transaction is in compliance with the Loan Agreement and the other Loan Documents and that the proceeds of such disposition will be applied in accordance therewith.

Notwithstanding anything herein to the contrary, the lien and security interest granted to the pari passu collateral agent under the Term Loan Intercreditor Agreement (the “ Pari Passu Collateral Agent ”) pursuant to this Agreement and the exercise of any right or remedy by the Pari Passu Collateral Agent hereunder are subject to the provisions of the Term Loan Intercreditor Agreement. In the event of any conflict between the terms of the Term Loan Intercreditor Agreement and this Agreement, the terms of the Term Loan Intercreditor Agreement shall govern and control, to the extent provided therein.

Each Pledgor hereby agrees (i) to indemnify and hold harmless the Collateral Agent and its successors, assigns, employees, agents and affiliates (individually an “ Indemnitee ,” and collectively, the “ Indemnitees ”) from and against any and all claims, demands, losses, judgments and liabilities (including liabilities for penalties) of whatsoever kind or nature, and (ii) to reimburse each Indemnitee for all reasonable costs and expenses, including reasonable attorneys’ fees, in each case arising out of or resulting from this Agreement or the exercise by any Indemnitee of any right or remedy granted to it hereunder (but excluding any claims, demands, losses, judgments and liabilities or expenses to the extent incurred by reason of gross

 

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negligence or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). In no event shall the Collateral Agent be liable, in the absence of gross negligence or willful misconduct on its part, for any matter or thing in connection with this Agreement other than to account for monies actually received by it in accordance with the terms hereof. If and to the extent that the obligations of any Pledgor under this paragraph are unenforceable for any reason, each Pledgor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law. The indemnity obligations of the Pledgor contained in this paragraph shall continue in full force and effect notwithstanding the indefeasible payment in full in cash of all Liabilities.

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THEREOF). Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

This Agreement shall be binding upon the Pledgors and the Collateral Agent and their respective successors and assigns (provided that no Pledgor may assign its obligations hereunder without the prior written consent of the Collateral Agent), and shall inure to the benefit of each Pledgor and the Collateral Agent and the successors and assigns of the Collateral Agent.

This Agreement may be executed in any number of counterparts (including via facsimile or a .pdf or similar file) and by the different parties hereto on separate counterparts and each such counterpart shall be deemed an original, but all such counterparts shall together constitute but one and the same Agreement. At any time after the date of this Agreement, one or more additional Persons may become parties hereto by executing and delivering to the Collateral Agent an assumption agreement to this Agreement in the form attached hereto as Exhibit A, together with a supplement to Schedule I hereto setting forth all relevant information with respect to such party as of the date of delivery, whereupon Schedule I hereto shall be deemed to be amended automatically to incorporate such information. Immediately upon such execution and delivery (and without any further action), each such additional Person will become a party to, and will be bound by the terms of, this Agreement.

Other than automatic modifications related to the addition of a party hereto as described in the preceding paragraph, no amendment, modification or waiver of, or consent with respect to, any provision of this Agreement shall be effective unless the same shall be in writing and signed and delivered by the Pledgors and the Collateral Agent, and then such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.

ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF

 

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THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY (A) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE; (B) CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID TO THE ADDRESS OF SUCH PARTY DESCRIBED IN THE LOAN AGREEMENT OR ON SCHEDULE II HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE OTHER PARTIES AS ITS ADDRESS FOR NOTICE HEREUNDER), OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK; AND (C) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

EACH PLEDGOR, THE COLLATERAL AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OTHER LENDER PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH PLEDGOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COLLATERAL AGENT, FOR THE BENEFIT OF THE OTHER LENDER PARTIES, ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the date first above written.

 

GREEN PLAINS INC.
By: /s/ Michelle Mapes                                                 
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS I LLC
By: /s/ Michelle Mapes                                                 
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS II LLC
By: /s/ Michelle Mapes                                                 
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

FLEISCHMANN’S VINEGAR COMPANY, INC.
By: /s/ Michelle Mapes                                                 
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS AGRICULTURAL AND ENERGY FUND LLC
By: /s/ Michelle Mapes                                                 
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS ASSET MANAGEMENT LLC
By: /s/ Michelle Mapes                                                 
Name:   Michelle Mapes
Title:   EVP - General Counsel & Corp. Secretary

[Signature Page to Pledge Agreement]


GREEN PLAINS GRAIN COMPANY TN LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS INDUSTRIAL CLEANING SERVICES LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS TRUCKING LLC

By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS HEREFORD LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS HOPEWELL LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:   EVP - General Counsel & Corp. Secretary

[Signature Page to Pledge Agreement]


GREEN PLAINS MADISON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS MOUNT VERNON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS YORK LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS PROCESSING LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS ATKINSON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS BLUFFTON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:   EVP - General Counsel & Corp. Secretary

[Signature Page to Pledge Agreement]


GREEN PLAINS CENTRAL CITY LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS COMMODITIES LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS CORN OIL LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS FAIRMONT LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS HOLDINGS II LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS OBION LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:   EVP - General Counsel & Corp. Secretary

[Signature Page to Pledge Agreement]


GREEN PLAINS ORD LLC

By: /s/ Michelle Mapes                                             

Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS OTTER TAIL LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS SHENANDOAH LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS SUPERIOR LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS WOOD RIVER LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:   EVP - General Counsel & Corp. Secretary

[Signature Page to Pledge Agreement]


BNP PARIBAS,

as Collateral Agent

By: /s/ Andrew Shapiro

Name:

Title:

 

Andrew Shapiro

Managing Director

By: /s/ James McHale

Name:

Title:

 

James McHale

Managing Director

[Signature Page to Pledge Agreement]

Exhibit 10.1(d)

SECURITY AGREEMENT

THIS SECURITY AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement ”), dated as of August 29, 2017, is among Green Plains Inc. (the “ Borrower ”), and each Subsidiary of the Borrower that from time to time becomes a party hereto (each such Subsidiary together with the Borrower, individually each a “ Debtor ” and collectively the “ Debtors ”) and BNP Paribas, as collateral agent (in such capacity, the “ Collateral Agent ”).

W I T N E S S E T H :

WHEREAS, the Borrower, the lenders party thereto, the Collateral Agent, and BNP Paribas, as administrative agent (the “ Administrative Agent ”), have entered into a Term Loan Agreement dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Loan Agreement ”);

WHEREAS, pursuant to a Guaranty dated as of the date hereof (as amended, restated, supplemented or otherwise modified form time to time, the “ Guaranty ”), each Debtor, other than the Borrower, has guaranteed the obligations of the Borrower under or in connection with the Loan Agreement; and

WHEREAS, the obligations of the Borrower under the Loan Documents (as defined in the Loan Agreement), and the obligations of each other Debtor under the Guaranty, are to be secured pursuant to this Agreement;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions and Interpretation . (a) In addition to terms defined in the preamble and recitals above, (i) capitalized terms used but not defined herein have the respective meanings assigned to such terms in the Loan Agreement, (ii) the terms Account , Account Debtor , As-extracted Collateral , Certificated Security , Chattel Paper , Commercial Tort Claim , Commodity Account , Commodity Contract , Deposit Account , Document , Electronic Chattel Paper , Equipment , Farm Products , Fixtures , Goods , Instrument , Inventory , Investment Property , Letter of Credit Rights , Payment Intangibles , Securities Account , Security , Security Entitlement , Supporting Obligations , Tangible Chattel Paper and Uncertificated Security have the respective meanings assigned to such terms in the UCC (as defined below) and (iii) the following terms have the following meanings:

Assignee Deposit Account - see Section 4 .

Collateral - see Section 2 .

Computer Hardware and Software means, with respect to any Debtor, all of the following, whether now or hereafter owned, licensed or leased by such Debtor, (a) all computer and other electronic data processing hardware, including integrated computer systems, central processing units, memory units, display terminals, printers, features, computer elements, card readers, tape drives, hard and soft disk drives, cables, electrical supply hardware, generators, power equalizers, accessories and peripheral devices and all other related computer hardware; (b) all software programs, operating system software, utilities and application programs in whatsoever form (source code and object code in magnetic tape, disk or hard copy format or any other listing whatsoever); (c) all firmware associated with the foregoing; (d) all rights with respect to the foregoing, including any and all licenses, options, warranties, service


contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications, and any substitution, replacement, addition or model conversion of any of the foregoing; and (e) all documentation for the foregoing, including flow charts, logic diagrams, manuals, specifications, training materials, charts and pseudo codes.

Default means (a) any Event of Default; and (b) any Unmatured Event of Default under Section 12.1.7 or 12.1.8 of the Loan Agreement.

Excluded Foreign Subsidiary Voting Stock means any voting stock in excess of 65% of the total outstanding amount of any class of voting stock of a Foreign Subsidiary of the type described in clause (a) or (b) of the definition of Foreign Subsidiary.

General Intangibles means, with respect to any Debtor, all of such Debtor’s “general intangibles” as defined in the UCC and, in any event, includes all of such Debtor’s trademarks, trade names, patents, copyrights, trade secrets, customer lists, inventions, designs, software programs, mask works, goodwill, registrations, licenses, franchises, tax refund claims, guarantee claims, security interests and rights to indemnification.

Intellectual Property means, with respect to any Debtor, all of such Debtor’s trade secrets and other proprietary information; customer lists; trademarks, service marks, business names, trade names, designs, logos, indicia, and/or other source and/or business identifiers and the goodwill of the business relating thereto and all registrations or applications for registrations that have heretofore been or may hereafter be issued thereon; copyrights (including copyrights for computer programs) and copyright registrations or applications for registrations that have heretofore been or may hereafter be issued and all tangible property embodying copyrights; unpatented inventions (whether or not patentable); patent applications and patents; industrial designs, industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; mask works, books, records, writings, information contained on computer tapes or disks or other electronic media, flow diagrams, specification sheets, source codes, object codes and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; and all common law and other rights in and to all of the foregoing; in each of the foregoing cases whether now existing or hereafter created or acquired and wherever located throughout the world.

Lender Party means the Collateral Agent, the Administrative Agent, and each Lender.

Liabilities means (a) with respect to the Borrower, all obligations of the Borrower under or in connection with the Loan Agreement or any other Loan Document (including this Agreement); (b) with respect to any other Debtor, all obligations of such Debtor under or in connection with the Guaranty or any other Loan Document (including this Agreement), in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due; and (c) with respect to any Debtor, and whether or not constituting obligations under any Loan Document, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower or any other Debtor, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding.

Non-Tangible Collateral means, with respect to any Debtor, such Debtor’s Accounts and General Intangibles.

Pari Passu Collateral Agent - see Section 8 .

 

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Requirement of Law means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

UCC means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

(b) For purposes of this Agreement, (i) the rules of interpretation set forth in Section 1.2 of the Loan Agreement shall apply as if fully set forth herein, mutatis mutandis , and (ii) if, with respect to any Securities, any provision hereof is inconsistent with the Pledge Agreement, the terms of the Pledge Agreement shall control.

2. Grant of Security Interest . As security for the payment of all Liabilities, each Debtor hereby assigns, pledges and conveys to the Collateral Agent for the benefit of the Lender Parties, and grants to the Collateral Agent for the benefit of the Lender Parties, a continuing security interest in, all of such Debtor’s right, title, and interest in, to and under the following, in each case, wherever located and whether now existing or hereafter arising or acquired, as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Liabilities:

(i) Accounts;

(ii) Chattel Paper (including Electronic Chattel Paper and Tangible Chattel Paper);

(iii) Computer Hardware and Software;

(iv) Deposit Accounts;

(v) Documents;

(vi) Farm Products;

(vii) General Intangibles;

(viii) Goods (including all of its Equipment, Fixtures and Inventory), together with all accessions, additions, attachments, improvements, substitutions and replacements thereto and therefor;

(ix) Instruments (together with all guaranties thereof and security therefor);

(x) Intellectual Property;

(xi) Investment Property (including Commodity Accounts, Commodity Contracts, Securities (whether Certificated Securities or Uncertificated Securities), Security Entitlements and Securities Accounts);

(xii) Letter of Credit Rights;

 

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(xiii) money (of every jurisdiction whatsoever), cash and cash equivalents;

(xiv) Payment Intangibles;

(xv) Commercial Tort Claims, including those listed on Schedule V ;

(xvi) As-extracted Collateral;

(xvii) all books, records, writings, data bases, information and other property relating to, used or useful in connection with, evidencing, embodying, incorporating or referring to any of the foregoing, all claims and/or insurance proceeds arising out of the loss, nonconformity or any interference with the use of, or any defect or infringement of rights in, or damage to, any of the foregoing, all Supporting Obligations, and all proceeds, products, offspring, rents, issues, profits and returns of and from, accessions and increases to, and all distributions on and rights arising out of, any of the foregoing; and

(xviii) all other personal property of any kind or nature and wherever located;

All of the foregoing are herein collectively called the “ Collateral ”; provided , that, notwithstanding anything to the contrary in this Agreement, none of the Excluded Foreign Subsidiary Voting Stock shall constitute Collateral.

3. Warranties . Each Debtor warrants that: (a) no financing statement (other than any that may have been filed on behalf of the Collateral Agent or in connection with Permitted Liens) covering any of the Collateral is on file in any public office; (b) such Debtor is the lawful owner, lessee or licensee (as applicable) of all of its Collateral, free of all liens and claims whatsoever, other than Permitted Liens, with full power and authority to execute and deliver this Agreement and perform such Debtor’s obligations hereunder and to subject the Collateral to the security interest hereunder; (c) all information with respect to Collateral and Account Debtors set forth in any schedule, certificate or other writing at any time heretofore or hereafter furnished by such Debtor to any Lender Party will be true and correct in all material respects as of the date furnished; (d) such Debtor’s jurisdiction of organization, true legal name as registered in such jurisdiction, organizational identification number, if any, designated by such jurisdiction and federal employer identification number are as set forth on Schedule I (and during the five-year period preceding the date hereof or, if later, the date such Debtor becomes a party hereto (the “ Preceding Period ”) such Debtor has not been organized under the law of any other jurisdiction except as set forth on Schedule I ); (e) each location where such Debtor maintains a place of business or has any Goods, in each case as of the date hereof, is set forth on Schedule II ; (f) except as disclosed on Schedule III , as of the date of this Agreement, such Debtor is not known, and during the Preceding Period has not previously been known, by any trade name; (g) except as disclosed on Schedule III , during the Preceding Period such Debtor has not been known by any legal name different from the one set forth on the signature pages of this Agreement nor has such Debtor been the subject of any merger or other corporate reorganization; (h)  Schedule IV contains a complete listing of all of such Debtor’s Intellectual Property that is registered under any registration statute and has not subsequently been abandoned or expired; (i)  Schedule VI hereto lists all Instruments, Letter of Credit Rights, and Chattel Paper of each Debtor; and (j) upon (i) the filing of financing statements on Form UCC-1 in the appropriate governmental offices, and (ii) the filing of Intellectual Property Security Agreements in substantially the form of Exhibits B-1 , B-2 , or B-3 , with the United States Copyright Office and/or the United States Patent and Trademark Office, as applicable, the Collateral Agent will have a valid lien upon and perfected security interest in all of the Collateral of such Debtor in which a security interest can be perfected by filing under the UCC (subject only to Permitted Liens permitted by the Loan Documents to have priority over the Liens granted in favor of the Collateral Agent).

 

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4. Collections, etc . The Collateral Agent may, and at the direction of the Required Lenders shall, at any time that a Default exists, whether before or after the maturity of any Liabilities, notify any party obligated on any of the Non-Tangible Collateral to make payment to the Collateral Agent of any amount due or to become due thereunder and enforce collection of any Non-Tangible Collateral by suit or otherwise and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder or evidenced thereby. Upon request of the Collateral Agent during the existence of a Default, each Debtor will, at its own expense, notify any party obligated on any Non-Tangible Collateral to make payment to the Collateral Agent for the benefit of the Lender Parties of any amount due or to become due thereunder. Notwithstanding the foregoing, at any time no Default exists, the Collateral Agent shall notify any party to which it has given a notice or with respect to which the Collateral Agent has otherwise taken action under this paragraph, to resume making payments to the applicable Debtor.

Upon request by the Collateral Agent during the existence of a Default, each Debtor will forthwith, upon receipt, transmit and deliver to the Collateral Agent, in the form received, all cash, checks, drafts and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Collateral Agent) that may be received by such Debtor at any time in full or partial payment or otherwise as proceeds of any of the Collateral; provided that if at any time after such a request is made by the Collateral Agent, no Default exists, the obligations of each Debtor under this paragraph shall cease until a further request of the Collateral Agent during the existence of a Default.

During the existence of a Default, (a) all items or amounts that are delivered by any Debtor to the Collateral Agent on account of payment of, or otherwise as proceeds of, any Collateral pursuant to the foregoing paragraph shall be deposited to the credit of a deposit account (each an “ Assignee Deposit Account ”) of such Debtor maintained with the Collateral Agent, as security for payment of the Liabilities, and (b) except as expressly set forth herein, no Debtor shall have any right to withdraw any funds deposited in the applicable Assignee Deposit Account. If funds are being deposited into an Assignee Deposit Account pursuant to the foregoing sentence, the Collateral Agent may, from time to time, in its discretion or at the direction of the Required Lenders, and shall upon request of the applicable Debtor made not more than once in any week, apply the then balance, representing collected funds, in the Assignee Deposit Account, toward payment of the Liabilities, whether or not then due, in such order of application as the Collateral Agent may determine, and the Collateral Agent or the Required Lenders may, from time to time, in its discretion or at the direction of the Required Lenders, release any portion of such balance to the applicable Debtor; provided that (i) if a Lender shall have notified the Collateral Agent in writing of its desire to withhold all funds in the Assignee Deposit Account during the continuance of a Default, then no such release of funds may be made to the Debtor without the consent of the Required Lenders and (ii) if any Debtor requests release to it of any such funds, such request shall be accompanied by a certificate signed by a Responsible Officer of such Debtor that sets forth the intended use of such funds (each such certificate, a “ Collateral Release Certificate ”). At any time no Default exists, the Collateral Agent shall, upon request of the applicable Debtor and receipt of a Collateral Release Certificate, release the balance in the Assignee Deposit Account to such Debtor.

During the existence of a Default, the Collateral Agent is authorized to endorse, in the name of the applicable Debtor, any item, howsoever received by the Collateral Agent, representing any payment on or other proceeds of any Collateral.

Each Debtor hereby appoints the Collateral Agent as its attorney-in-fact for the purpose of carrying out the provisions of this Agreement and taking any action and executing or completing any instrument that the Required Lenders may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest; provided that the Collateral Agent shall not exercise its rights as such attorney-in-fact unless a Default exists.

 

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5. Certificates, Schedules and Reports . Each Debtor will from time to time deliver to the Collateral Agent, such schedules, certificates and reports with respect to the Collateral, and with respect to items or amounts received by such Debtor in full or partial payment of any Collateral, as the Collateral Agent (at the direction of any Lender) may reasonably request. Any such schedule, certificate or report shall be executed by a duly authorized officer of such Debtor and shall be in such form and detail as the Collateral Agent may reasonably specify. Each Debtor shall promptly notify the Collateral Agent of the occurrence of any event causing any loss or depreciation in the value of its Inventory or other Goods that is material to the Borrower and its Subsidiaries taken as a whole, and such notice shall specify or reasonably estimate the amount of such loss or depreciation.

6. Agreements of the Debtors . Each Debtor (a) will, from time to time, execute (as applicable) such financing statements and other documents (and pay the cost of filing or recording the same in all public offices deemed appropriate by the Collateral Agent) and do such other acts and things (including delivery to the Collateral Agent of any Instruments or Certificated Securities that constitute Collateral), as the Collateral Agent may from time to time reasonably request to establish and maintain a valid and perfected security interest in the Collateral (free of all other Liens other than Permitted Liens) to secure the payment of the Liabilities; (b) will not change its state of organization or incorporation or its name, identity or corporate structure such that any financing statement filed to perfect the Collateral Agent’s interests under this Agreement would become seriously misleading, unless such Debtor shall have given the Collateral Agent not less than 30 days’ prior written notice of such change (or such shorter period of time as the Collateral Agent may agree in its sole discretion) (provided that this Section 6(b) shall not be deemed to authorize any change or transaction prohibited under the Loan Agreement); (c) will keep its records concerning Non-Tangible Collateral in such a manner as will enable the Collateral Agent or its designees to determine at any time the status of such Non-Tangible Collateral; (d) will furnish the Collateral Agent such information concerning such Debtor, the Collateral and the Account Debtors as the Collateral Agent may from time to time reasonably request; (e) will, promptly upon request of the Collateral Agent, stamp on its records concerning the Collateral and add on all Chattel Paper constituting a portion of the Collateral, a notation, in form reasonably satisfactory to the Collateral Agent, indicating the security interest of the Collateral Agent hereunder; (f) except for Permitted Liens and as otherwise permitted by the Loan Agreement, will not sell, lease, assign or create or permit to exist any Lien on or security interest in any Collateral; (g) will at all times keep all its Inventory and other Goods insured under policies maintained with responsible insurance companies against loss, damage, theft and other risks to such extent as is required by the Loan Agreement, and cause all such policies to provide that loss thereunder shall be payable to the Collateral Agent, and such policies or certificates thereof shall, if the Collateral Agent so requests, be deposited with or furnished to the Administrative Agent and Collateral Agent in accordance with the terms of the Loan Agreement; (h) will, promptly upon request of the Collateral Agent, (1) cause to be noted, on the applicable certificate for any of its Equipment that is covered by a certificate of title, the security interest of the Collateral Agent in such Equipment and (2) deliver all such certificates to the Collateral Agent or its designees; (i) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (j) will not keep any of its property or maintain any place of business at any location other than its addresses shown on Schedule II or such other locations as may be specified by such Debtor upon not less than 15 days’ prior written notice to the Collateral Agent (or such shorter period of time as the Collateral Agent may agree in its sole discretion), provided that if requested by the Collateral Agent with respect to such property, the Collateral Agent (1) has a mortgage lien on such property (if such property is owned by a Debtor) or (2) has received a landlord waiver reasonably satisfactory to the Collateral Agent with respect to such property (if such property is leased by a Debtor); (k) will not maintain any place of business at any location other than in the United States; (l) will, promptly upon any Responsible Officer of such

 

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Debtor obtaining knowledge that such Debtor has acquired a Commercial Tort Claim, notify the Collateral Agent in a writing signed by such Debtor of the details thereof and grant to the Collateral Agent in such writing a security interest therein and in the proceeds thereof, with such writing to be in form and substance reasonably satisfactory to the Collateral Agent; (m) will, promptly upon any Responsible Officer of such Debtor obtaining knowledge that such Debtor has acquired any Instruments or Chattel Paper, deliver to the Collateral Agent such Instruments or Chattel Paper (in each case, accompanied by stock powers, allonges or other instruments of transfer executed in blank); (n) will, if requested by the Collateral Agent, promptly take all steps necessary to grant the Collateral Agent control of all Electronic Chattel Paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act; and (o) will, if requested by the Collateral Agent, promptly instruct all issuers and nominated persons under any Letter of Credit Rights in which any Debtor is the beneficiary or assignee to make all payments under such letters of credit to the Collateral Agent.

With respect to any Intellectual Property Collateral, (a) each Debtor shall notify Collateral Agent promptly if it knows or has reason to know that any application or registration relating to any patent, trademark, or copyright (now or hereafter existing) may become abandoned or dedicated, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office, or any court) regarding any Debtor’s ownership of any patent, trademark, or copyright, its right to register the same, or its right to keep and maintain the same, (b) in no event shall any Debtor, either itself or through any agent, employee, licensee or designee, file an application for the registration of any patent, trademark, or copyright with the United States Patent and Trademark Office, the United States Copyright Office, or any similar office or agency without giving Collateral Agent prior written notice thereof, and such Debtor shall execute and deliver Intellectual Property Security Agreements in substantially the form of Exhibits B-1 , B-2 , or B-3 , as applicable, as Collateral Agent may request to evidence the Collateral Agent’s Lien on such patent, trademark, or copyright, and the General Intangibles of such Debtor relating thereto or represented thereby, (c) each Debtor shall take all actions necessary or requested by Collateral Agent to maintain and pursue each application, to obtain the relevant registration and to maintain the registration of each of the patents, trademarks, and copyrights (now or hereafter existing), including the filing of applications for renewal, affidavits of use, affidavits of non-contestability and opposition, and interference and cancellation proceedings, and (d) in the event that any of the patent, trademark or copyright Collateral is infringed upon, misappropriated, or diluted by a third party, the applicable Debtor shall, unless such Debtor shall reasonably determine that such patent, trademark or copyright Collateral is in no way material to the conduct of its business or operations, promptly sue for infringement, misappropriation, or dilution and to recover any and all damages for such infringement, misappropriation, or dilution, and shall take such other actions as Collateral Agent shall deem appropriate under the circumstances to protect such patent, trademark, or copyright Collateral.

Each Debtor hereby authorizes the Collateral Agent to file (without the signature of such Debtor) any financing statement, continuation statement or amendment to financing statement in any jurisdiction and with any filing office as the Collateral Agent may determine, in its sole discretion, is necessary or advisable to perfect the security interests granted to the Collateral Agent hereunder. Any such financing statement or amendment may describe the Collateral in the same manner as described in this Agreement or any other agreement entered into by the parties in connection herewith, or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral, including describing such property as “all assets” or “all personal property”, whether now owned or hereafter acquired.

 

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All reasonable expenses incurred in protecting, preserving and maintaining any Collateral shall be borne by the applicable Debtor. Whenever a Default exists, the Collateral Agent shall have the right to bring suit to enforce any Intellectual Property or licenses thereunder, in which event the applicable Debtor shall at the request of the Collateral Agent do all lawful acts and execute all proper documents required by the Collateral Agent in aid of such enforcement, and such Debtor shall (subject only to any limitation set forth in any Guaranty issued by any Debtor) promptly, upon demand, reimburse and indemnify the Collateral Agent for all reasonable costs and expenses incurred by the Collateral Agent (i) in the exercise of its rights under this Section 6 or any other any right or remedy granted to it hereunder, (ii) in respect of any claim and the prosecution or defense thereof arising out of or in any way connected with this Agreement, and (iii) in respect of the collection or enforcement of the Liabilities, except to the extent any of the foregoing are found by a court of competent jurisdiction in a final, non-appealable judgment to have resulted from the gross negligence or willful misconduct of the Collateral Agent. Notwithstanding the foregoing or any other provision of this Agreement, the Collateral Agent does not assume any obligation of any Debtor under any contract or other document included in the Collateral by reason of, or arising out of, this Agreement or any security interest granted hereunder.

Each Debtor (other than the Borrower) acknowledges and agrees that the obligations undertaken by it under this Agreement involve the provision of collateral security for the obligations of Persons other than such Debtor and that each Debtor’s provision of collateral security for the Liabilities are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and furtherance of the foregoing, each Debtor understands and agrees that, to the fullest extent permitted under applicable laws and except as may otherwise be expressly and specifically provided in the Loan Documents, each Debtor shall remain obligated hereunder (including with respect to the collateral security provided by each Debtor herein) and the enforceability and effectiveness of this Agreement and the liability of each Debtor, and the rights, remedies, powers and privileges of the Collateral Agent and the other Lender Parties under this Agreement and the other Loan Documents shall not be affected, limited, reduced, discharged or terminated in any way, regardless of whether any reservation of rights against any Debtor is made, or any notice to, or further assent by, any Debtor is obtained, prior to or upon occurrence of any of the following: (A) the liability of any other Person upon or for any part of the Liabilities or any collateral security therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by, or any indulgence or forbearance in respect thereof granted by, the Collateral Agent or any other Lender Party; (B) the Loan Agreement, the other Loan Documents, and any other documents executed and delivered in connection therewith may be amended, modified, supplemented, restated or replaced, in whole or in part, as the Collateral Agent (or the Required Lenders or all Lenders, as the case may be) may deem advisable from time to time; (C) any Debtor or any other Person liable for the Liabilities may from time to time accept or enter into new or additional agreements, security documents, guarantees or other instruments in addition to, in exchange for or relative to, any Loan Document, all or any part of the Liabilities or any Collateral now or in the future serving as security for the Liabilities; (D) any collateral security or right of offset at any time held by the Collateral Agent or any other Lender Party for the payment of the Liabilities may be sold, exchanged, waived, surrendered or released; and (E) any other event (other than the indefeasible payment in full of the Liabilities) shall occur which constitutes a defense or release of sureties generally.

When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Debtor, the Collateral Agent may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against any Debtor or any other Person or against any collateral security for the Liabilities or any right of offset with respect thereto, and any failure by the Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from any Debtor, or any other Person or to realize upon any such collateral security or to exercise any such right of offset, or any release of any Debtor or any other Person

 

8


or any such collateral security, guarantee or right of offset, shall not relieve any Debtor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Collateral Agent or any other Lender Party against any Debtor. For the purposes hereof, “demand” shall include the commencement and continuance of any legal proceedings. Neither the Collateral Agent nor any other Lender Party shall have any obligation to protect, secure, perfect, or insure any Lien at any time held by it as security for the Liabilities or any property subject thereto.

7. Default . (a) Whenever a Default exists, the Collateral Agent may exercise from time to time any right or remedy available to it under the UCC, under any other applicable law and/or as described below. Without limiting the generality of the foregoing, each Debtor expressly agrees that in any such event Collateral Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of the time and place of public or private sale) to or upon any Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the UCC and other applicable law), may forthwith enter upon the premises of each Debtor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Debtor or any other Person notice and opportunity for a hearing on Collateral Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Collateral Agent shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Lender Parties, the whole or any part of said Collateral so sold, free of any right or equity of redemption, which right of redemption each Debtor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Collateral Agent shall have the right to conduct such sales on any Debtor’s premises or elsewhere and shall have the right to use any Debtor’s premises without charge for such time or times as Collateral Agent deems necessary or advisable.

(b) Each Debtor agrees, if a Default exists, (i) to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Collateral Agent and (ii) to execute all documents and do all other things that may be necessary in order to enable the Collateral Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority. For the purpose of enabling Collateral Agent to exercise rights and remedies under Section 7 hereof, in order to take possession of hold, preserve, process, assemble, prepare for sale, market for sale, sell or otherwise dispose of Collateral) at such time as Collateral Agent shall be lawfully entitled to exercise such rights and remedies, to the extent Debtor is not contractually prohibited from doing so, each Debtor hereby grants to Collateral Agent on behalf of the Lender Parties, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to any Debtor) to use, license, or sublicense any intellectual property now owned or hereafter acquired by any Debtor, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof.

(c) Each Debtor agrees and acknowledges that (i) with respect to Collateral that is: (A) perishable or threatens to decline speedily in value or (B) is of a type customarily sold on a recognized market, no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i)  above, notification sent after a Default and at least ten days before any proposed disposition provides notice a reasonable time before such disposition.

 

9


(d) Each Debtor agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Debtor further agrees and acknowledges that a disposition (i) made in the usual manner on any recognized market, (ii) at the price current in any recognized market at the time of disposition or (iii) in conformity with reasonable commercial practices among sellers of the type of property subject to such disposition shall, in each case, be deemed commercially reasonable.

(e) Any cash proceeds of any disposition by the Collateral Agent of any Collateral shall be applied by the Collateral Agent, at the direction of the Required Lenders, to the payment of the Liabilities until paid in full, and any surplus will be paid to the applicable Debtor or as a court of competent jurisdiction shall direct.

(f) Collateral Agent may at any time after a Default has occurred and is continuing (or if any rights of set-off (other than set-offs against an Account arising under the contract giving rise to the same Account) or contra accounts may be asserted with respect to the following), without prior notice to any Debtor, notify Account Debtors and other Persons obligated on the Collateral that the Lender Parties have a security interest therein, and that payments shall be made directly to Collateral Agent. Upon the request of Collateral Agent, each Debtor shall so notify Account Debtors and other Persons obligated on Collateral. Once any such notice has been given to any Account Debtor or other Person obligated on the Collateral, no Debtor shall give any contrary instructions to such Account Debtor or other Person without Collateral Agent’s prior written consent.

(g) Except as otherwise specifically provided herein, each Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral. Collateral Agent and the Lender Parties shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Debtor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Liabilities or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof. Collateral Agent and the Lender Parties shall not be required to marshal the Collateral or any guarantee of the Liabilities or to resort to the Collateral or any such guarantee in any particular order, and all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Debtor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Collateral Agent or the Lender Parties, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise.

(h) To the extent that applicable law imposes duties on Collateral Agent and the Secured Parties to exercise remedies in a commercially reasonable manner, each Debtor acknowledges and agrees that it is not commercially unreasonable for Collateral Agent (i) to fail to incur expenses reasonably deemed significant by Collateral Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to

 

10


advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Debtor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Lender Parties against risks of loss, collection or disposition of Collateral or to provide to the Lender Parties a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Collateral Agent in the collection or disposition of any of the Collateral. Each Debtor acknowledges that the purpose of this subsection (h) is to provide non-exhaustive indications of what actions or omissions by Collateral Agent and the Lender Parties would not be commercially unreasonable in Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this subsection (h). Without limitation upon the foregoing, nothing contained in this subsection (h) shall be construed to grant any rights to any Debtor or to impose any duties on Collateral Agent or the Lender Parties that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this subsection (h).

8. General . The Collateral Agent shall exercise reasonable care in the custody and preservation of any Collateral in its possession (and the Collateral Agent shall be deemed to have exercised such reasonable care if it takes any action that the applicable Debtor requests in writing for such purpose, but failure of the Collateral Agent to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and no failure of the Collateral Agent to preserve or protect any right with respect to any Collateral against prior parties, or to do any act with respect to the preservation of any Collateral not so requested by the applicable Debtor, shall be deemed a failure to exercise reasonable care in the custody or preservation of such Collateral).

It is expressly agreed by each Debtor that, anything herein to the contrary notwithstanding, each Debtor shall remain liable under each of its contracts and each of its licenses to observe and perform all the conditions and obligations to be observed and performed by it thereunder. The Lender Parties shall not have any obligation or liability under any contract or license by reason of or arising out of this Agreement or the granting herein of a Lien thereon or the receipt by the Lender Parties of any payment relating to any contract or license pursuant hereto. The Lender Parties shall not be required or obligated in any manner to perform or fulfill any of the obligations of any Debtor under or pursuant to any contract or license, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any contract or license, or to present or file any claims, or to take any action to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

All notices and requests hereunder shall be given in accordance with Section 14.3 of the Loan Agreement and sent to the applicable party at its address described therewith, at the first address shown for such party on Schedule II or at such other address as such party may, by written notice to the other parties, have designated as its address for such purpose.

No delay on the part of the Collateral Agent in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Collateral Agent of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies hereunder provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights and remedies provided by law.

 

11


This Agreement shall remain in full force and effect until all Liabilities (other than contingent indemnification obligations that are not yet due and payable) have been indefeasibly paid in full in cash. Upon any such payment and termination, the Collateral Agent will, upon any Debtor’s request and at such Debtor’s sole expense, (i) deliver to such Debtor, without any representation, warranty or recourse of any kind whatsoever, all of such Debtor’s Collateral held by the Collateral Agent hereunder as shall not have been sold or otherwise applied pursuant to the terms hereof, and (ii) execute and deliver to such Debtor such documents as such Debtor shall reasonably request to evidence such termination and the release of any security interest granted hereby. If at any time all or any part of any payment theretofore applied by the Collateral Agent or any other Lender Party to any of the Liabilities is or must be rescinded or returned by the Collateral Agent or such Lender Party for any reason whatsoever (including the insolvency, bankruptcy or reorganization of any Debtor), such Liabilities shall, for the purposes of this Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Collateral Agent or such other Lender Party, and this Agreement shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Collateral Agent or such other Lender Party had not been made.

If any of the Collateral shall be disposed of by any Debtor in a transaction permitted by the Loan Agreement, then, the Collateral Agent, at the request and sole expense of such Debtor, shall execute and deliver to such Debtor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral; provided that the Debtor shall have delivered to the Agent a written request for release identifying the relevant Debtor and Collateral to be released, together with a certification by the Borrower stating that such transaction is in compliance with the Loan Agreement and the other Loan Documents and that the proceeds of such disposition will be applied in accordance therewith. At the request and sole expense of the Borrower, a Guarantor shall be released from its obligations hereunder in the event that all the Equity Interests of such Guarantor shall be disposed of in a transaction permitted by the Loan Agreement; provided that the Borrower shall have delivered to the Agent a written request for release identifying the relevant Guarantor, together with a certification by the Borrower stating that such transaction is in compliance with the Loan Agreement and the other Loan Documents and that the proceeds of such disposition will be applied in accordance therewith.

Notwithstanding anything herein to the contrary, the lien and security interest granted to the pari passu collateral agent under the Term Loan Intercreditor Agreement (the “ Pari Passu Collateral Agent ”) pursuant to this Agreement and the exercise of any right or remedy by the Pari Passu Collateral Agent hereunder are subject to the provisions of the Term Loan Intercreditor Agreement. In the event of any conflict between the terms of the Term Loan Intercreditor Agreement and this Agreement, the terms of the Term Loan Intercreditor Agreement shall govern and control, to the extent provided therein.

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THEREOF). Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

This Agreement shall be binding upon the Debtors and the Collateral Agent and their respective successors and assigns (provided that no Debtor may assign its obligations hereunder), and shall inure to the benefit of each Debtor and the Collateral Agent and the successors and assigns of the Collateral Agent.

 

12


This Agreement may be executed in any number of counterparts (including via facsimile or in a .pdf or similar file) and by the different parties hereto on separate counterparts and each such counterpart shall be deemed an original, but all such counterparts shall together constitute one and the same Agreement. At any time after the date of this Agreement, one or more additional Persons may become parties hereto by executing and delivering to the Collateral Agent an Assumption Agreement, substantially in the form of Exhibit A hereto, together with supplements to the Schedules hereto setting forth all relevant information with respect to such party as of the date of delivery, whereupon the Schedules hereto shall be deemed to be amended automatically to incorporate such information. Immediately upon such execution and delivery (and without any further action), each such additional Person will become a party to, and will be bound by the terms of, this Agreement.

Other than automatic modifications related to the addition of a party hereto as described in the preceding paragraph, no amendment, modification or waiver of, or consent with respect to, any provision of this Agreement shall be effective unless the same shall be in writing and signed and delivered by the Collateral Agent, and then such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.

ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY (A) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE; (B) CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID TO SUCH ADDRESS OF SUCH PARTY REFERRED TO ABOVE (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE COLLATERAL AGENT AS ITS ADDRESS FOR NOTICE HEREUNDER), OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK; AND (C) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

EACH DEBTOR, THE COLLATERAL AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OTHER LENDER PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE

 

13


TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH DEBTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COLLATERAL AGENT, FOR THE BENEFIT OF THE OTHER LENDER PARTIES, ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.

[Remainder of page intentionally left blank.]

 

14


IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first above written.

 

GREEN PLAINS INC.
By: / s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS I LLC
By:  /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS II LLC
By:  /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

FLEISCHMANN’S VINEGAR COMPANY, INC.
By:  /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS AGRICULTURAL AND ENERGY FUND LLC
By: / s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary


GREEN PLAINS ASSET MANAGEMENT LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS GRAIN COMPANY TN LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS INDUSTRIAL CLEANING SERVICES LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary


GREEN PLAINS TRUCKING LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS HEREFORD LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS HOPEWELL LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS MADISON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS MOUNT VERNON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary


GREEN PLAINS YORK LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS PROCESSING LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS ATKINSON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS BLUFFTON LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS CENTRAL CITY LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp.  Secretary

GREEN PLAINS COMMODITIES LLC
By: /s/ Michelle Mapes                                             
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary


GREEN PLAINS CORN OIL LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS FAIRMONT LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS HOLDINGS II LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS OBION LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS ORD LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS OTTER TAIL LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary


GREEN PLAINS SHENANDOAH LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS SUPERIOR LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary

GREEN PLAINS WOOD RIVER LLC
By:   /s/ Michelle Mapes
Name:   Michelle Mapes
Title:  

EVP - General Counsel & Corp. Secretary


BNP PARIBAS, as Collateral Agent
By: /s/ Andrew Shapiro
Name: Andrew Shapiro
Title: Managing Director
By: /s/ James McHale
Name: James McHale
Title: Managing Director
Table of Contents

Exhibit 10.1(e)

TERM LOAN INTERCREDITOR

AND COLLATERAL AGENCY AGREEMENT

Dated as of August 29, 2017

among

BNP PARIBAS,

as Term Loan Collateral Agent,

BNP PARIBAS,

as Pari Passu Collateral Agent,

BANK OF THE WEST and ING CAPITAL LLC,

as ABL-Cattle Agent,

BNP PARIBAS,

as ABL-Grain Agent,

PNC BANK, NATIONAL ASSOCIATION,

as ABL-Trade Agent

and acknowledged and agreed to by

GREEN PLAINS INC.,

as the Company

and the other New Grantors referred to herein

 


Table of Contents

TABLE OF CONTENTS

 

 

         Page  
SECTION 1.  

Definitions

     4  
1.1  

Defined Terms

     4  
1.2  

Terms Generally

     18  
SECTION 2.  

Lien Priorities

     18  
2.1  

Relative Priorities

     18  
2.2  

Prohibition on Contesting Liens; No Marshaling

     19  
2.3  

No New Liens

     20  
2.4  

Similar Liens and Agreements

     21  
2.5  

Perfection of Liens

     21  
SECTION 3.  

Enforcement

     22  
3.1  

Exercise of Remedies

     22  
3.2  

Actions Upon Breach; Specific Performance

     26  
SECTION 4.  

Payments

     27  
4.1  

Application of Proceeds

     27  
4.2  

Payments Over

     27  
SECTION 5.  

Other Agreements

     28  
5.1  

Releases

     28  
5.2  

Insurance

     29  
5.3  

Amendments to Term Loan Documents and ABL Documents

     30  
5.4  

Confirmation of Subordination in Term Loan Collateral Documents

     31  
5.5  

Gratuitous Bailee/Agent for Perfection

     32  
5.6  

When Discharge of Term Loan Obligations Deemed to Not Have Occurred

     33  
5.7  

Purchase Right

     35  
SECTION 6.  

Insolvency or Liquidation Proceedings

     36  
6.1  

Finance and Sale Issues

     36  
6.2  

Relief from the Automatic Stay

     37  
6.3  

Adequate Protection

     37  
6.4  

No Waiver

     39  
6.5  

Avoidance Issues

     39  
6.6  

Reorganization Securities

     39  
6.7  

Post-Petition Interest

     40  
6.8  

Waiver

     40  
6.9  

Separate Grants of Security and Separate Classification

     40  
6.10  

Effectiveness in Insolvency or Liquidation Proceedings

     41  

 

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SECTION 7.  

Reliance; Waivers; Etc

     41  
7.1  

Reliance

     41  
7.2  

No Warranties or Liability

     42  
7.3  

No Waiver of Lien Priorities

     42  
7.4  

Obligations Unconditional

     44  
SECTION 8.  

Miscellaneous

     45  
8.1  

Integration/Conflicts

     45  
8.2  

Effectiveness; Continuing Nature of this Agreement; Severability

     45  
8.3  

Amendments; Waivers

     46  
8.4  

Information Concerning Financial Condition of the ABL Borrower and its Subsidiaries

     46  
8.5  

Subrogation

     47  
8.6  

Application of Payments

     47  
8.7  

Submission to Jurisdiction; Certain Waivers

     47  
8.8  

WAIVER OF JURY TRIAL.

     48  
8.9  

Notices

     49  
8.10  

Further Assurances

     49  
8.11  

Applicable Law

     49  
8.12  

Binding on Successors and Assigns

     49  
8.13  

Section Headings

     50  
8.14  

Counterparts

     50  
8.15  

Authorization

     50  
8.16  

No Third Party Beneficiaries/ Provisions Solely to Define Relative Rights

     50  
8.17  

Additional New Grantors

     51  
SECTION 9.  

Collateral Agency with respect to ABL Obligations.

     51  
9.1  

Appointment and Undertaking of the Pari Passu Collateral Agent

     51  
9.2  

Release or Subordination of Liens on Term Priority Collateral

     54  
9.3  

Enforcement of Liens

     54  
9.4  

Application of Proceeds to Holders of ABL Obligations

     55  
9.5  

Powers of the Pari Passu Collateral Agent

     56  
9.6  

Documents and Communications

     56  
9.7  

For Sole and Exclusive Benefit of the ABL Claimholders

     56  
9.8  

No Implied Duty

     56  
9.9  

Appointment of Agents and Advisors

     57  
9.10  

Other Agreements

     57  
9.11  

Solicitation of Instructions

     57  
9.12  

Limitation of Liability

     57  
9.13  

ABL Debt Default

     57  
9.14  

Actions by Pari Passu Collateral Agent

     57  
9.15  

Limitations on Duty of Pari Passu Collateral Agent in Respect of Term Loan Priority Collateral

     58  
9.16  

No Liability for Clean Up of Hazardous Materials

     58  
9.17  

Resignation or Removal of Pari Passu Collateral Agent

     59  

 

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9.18  

Appointment of Successor Pari Passu Collateral Agent

     59  
9.19  

Succession

     60  
9.20  

Merger, Conversion or Consolidation of Pari Passu Collateral Agent

     60  
9.21  

Indemnity

     60  
9.22  

Entire Agreement

     61  

EXHIBITS

Exhibit A – Joinder Agreement (Additional New Grantors)

 

 

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TERM LOAN INTERCREDITOR

AND COLLATERAL AGENCY AGREEMENT

This TERM LOAN INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT ( as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement ) , is dated as of August  29, 2017 , and entered into by and among BNP PARIBAS , as collateral agent for the holders of the Term Loan Obligations (as defined below) (in such capacity and together with its successors and assigns from time to time, the “ Term Loan Collateral Agent ”), BNP PARIBAS , as collateral agent for the holders of the ABL Obligations (as defined below) (in such capacity and together with its successors and assigns from time to time, the “ Pari Passu Collateral Agent ”), BANK OF THE WEST and ING CAPITAL LLC , as joint administrative agent for the holders of the ABL-Cattle Obligations (as defined below) (in such joint capacity and together with their successors and assigns from time to time, the “ ABL-Cattle Agent ”), BNP PARIBAS , as collateral agent for the holders of the ABL-Grain Obligations (as defined below) (in such capacity and together with its successors and assigns from time to time, the “ ABL-Grain Agent ”) and PNC BANK, NATIONAL ASSOCIATION , as agent for the holders of the ABL-Trade Obligations (as defined below) (in such capacity together with its successors and assigns, the “ ABL-Trade Agent ”) and acknowledged and agreed to by GREEN PLAINS INC. , a Delaware corporation (the “ Company ”) and the other New Grantor s (as defined below). Capitalized terms used in this Agreement have the meanings assigned to them in Section 1 below.

RECITALS

The Company , the lenders and agents party thereto, and the Term Loan Collateral Agent have entered into that certain Term Loan Agreement dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, or, subject to Section 5.3 hereof, Refinanced the “ Term Loan Agreement ”);

Green Plains Cattle Company LLC, a Delaware limited liability company (“ GP Cattle ”), the lenders and agents party thereto, and the ABL-Cattle Agent have entered into the Credit Agreement dated as of December 3, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time or, subject to Section 5.3 hereof, Refinanced, the “ ABL-Cattle Credit Agreement ”);

Green Plains Grain Company LLC, a Delaware limited liability company (including in its capacity as successor by merger to Green Plains Essex Inc., “ GP Grain ”), the lenders and agents party thereto, and the ABL-Grain Agent have entered into the Credit Agreement dated as of October, 28, 2011 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time or, subject to Section 5.3 hereof, Refinanced, the “ ABL-Grain Credit Agreement ”);

Green Plains Trade Group LLC, a Delaware limited liability company (“ GP Trade ”), the lenders and agents party thereto, and the ABL-Trade Agent have


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entered into the Fourth Amended and Restated Credit and Security Agreement dated as of July 28, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time or, subject to Section 5.3 hereof, Refinanced, the “ ABL-Trade Credit Agreement ”);

Pursuant to (i) the Term Loan Agreement, the Company has agreed to cause certain current and future Subsidiaries (including, for the avoidance of doubt, the ABL Priority Collateral Grantors) (in such capacity, all such guarantors, the “ Term Loan Guarantors ” and together with the Company, the “ Term Loan Obligors ”) to agree to guarantee the Term Loan Obligations pursuant to a Guaranty (the “Term Loan Guaranty” ) and (ii) that certain Guaranty dated as of the date hereof, the New Grantors have agreed to guarantee the ABL-Cattle Obligations; (iii) that certain Guaranty dated as of the date hereof, the New Grantors have agreed to guarantee the ABL-Grain Obligations; and (iv) that certain Guaranty dated as of the date hereof, the the New Grantors have agreed to guarantee the ABL-Trade Obligations.

To secure the Term Loan Obligations, (i) the ABL-Cattle Grantor will grant a Lien on substantially all of its assets (the “ ABL-Cattle Priority Collateral ”) to the Term Loan Collateral Agent pursuant to the terms of the Term-Cattle Collateral Documents, (ii) each ABL-Grain Grantor will grant a Lien on substantially all of its assets (the “ ABL-Grain Priority Collateral ”) to the Term Loan Collateral Agent pursuant to the terms of the Term-Grain Collateral Documents, (iii) each ABL-Trade Grantor will grant a Lien on substantially all of its assets (the “ ABL-Trade Priority Collateral ”) to the Term Loan Collateral Agent pursuant to the terms of the Term-Trade Collateral Documents, and (iv) each Term Loan Obligor (including the New Grantors but excluding the ABL Priority Collateral Grantors) have agreed to grant Liens on substantially all of the assets of such Term Loan Obligor pursuant to the terms of the Term Loan Documents.

To secure the ABL-Cattle Obligations, (i) the ABL-Cattle Grantor has granted a Lien on substantially all of its assets to the ABL-Cattle Agent pursuant to the ABL-Cattle Collateral Documents and (ii) concurrently with the execution and delivery of this Agreement, each New Grantor will grant Liens on substantially all of the assets of such New Grantor to the Pari Passu Collateral Agent for the benefit of the holders of the ABL-Cattle Obligations, the holders of the ABL-Grain Obligations and the holders of the ABL-Trade Obligations, on a pari passu basis (except with respect to Declined Real Property Liens on applicable Real Property securing the Series of ABL Obligations with the Declined Real Property Liens), pursuant to the terms of the Pari Passu Collateral Documents.

To secure the ABL-Grain Obligations, (i) each ABL-Grain Grantor has granted a Lien on substantially all of its assets to the ABL-Grain Agent pursuant to the ABL-Grain Collateral Documents and (ii) concurrently with the execution and delivery of this Agreement, each New Grantor will grant Liens on substantially all of the assets of such New Grantor to the Pari Passu Collateral Agent for the benefit of the holders of the ABL-Grain Obligations, the holders of the ABL-Cattle Obligations and the holders of the ABL-Trade Obligations, on a pari passu basis (except with respect to Declined Real Property Liens on applicable Real Property securing the Series of ABL Obligations with the Declined Real Property Liens), pursuant to the terms of the Pari Passu Collateral Documents.

 

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To secure the ABL-Trade Obligations, (i) each ABL-Trade Grantor has granted a Lien on substantially all of its assets to the ABL-Trade Agent pursuant to the ABL-Trade Collateral Documents and (ii) concurrently with the execution and delivery of this Agreement, each New Grantor will grant Liens on substantially all of the assets of such New Grantor to the Pari Passu Collateral Agent for the benefit of the holders of the ABL-Trade Obligations, the holders of the ABL-Cattle Obligations and the holders of the ABL-Grain Obligations, on a pari passu basis (except with respect to Declined Real Property Liens on applicable Real Property securing the Series of ABL Obligations with the Declined Real Property Liens), pursuant to the terms of the Pari Passu Collateral Documents.

Concurrently with the execution and delivery of this Agreement, (i) the ABL-Cattle Agent and the Term Loan Collateral Agent will enter into the ABL-Cattle Intercreditor Agreement pursuant to which the ABL-Cattle Agent and the Term Loan Collateral Agent will set forth their respective Lien priorities in, and rights and remedies with respect to, the ABL-Cattle Priority Collateral, (ii) the ABL-Grain Agent and the Term Loan Collateral Agent will enter into the ABL-Grain Intercreditor Agreement pursuant to which the ABL-Grain Agent and the Term Loan Collateral Agent will set forth their respective Lien priorities in, and rights and remedies with respect to, the ABL-Grain Priority Collateral and (iii) the ABL-Trade Agent and the Term Loan Collateral Agent will enter into the ABL-Trade Intercreditor Agreement pursuant to which the ABL-Trade Agent and the Term Loan Collateral Agent will set forth their respective Lien priorities in, and rights and remedies with respect to, the ABL-Trade Priority Collateral.

The Term Loan Obligations are to be secured (i) by Liens on the Term Priority Collateral granted by the New Grantors that are senior in priority to the Liens securing the ABL Obligations on the Term Loan Priority Collateral pursuant to the terms of this Agreement, (ii) by Liens on the ABL-Cattle Priority Collateral of the ABL-Cattle Grantors that are junior in priority to the Liens securing the ABL-Cattle Obligations on the ABL-Cattle Priority Collateral of the ABL-Cattle Grantors pursuant to the terms of the ABL-Cattle Intercreditor Agreement, (iii) by Liens on the ABL-Grain Priority Collateral of the ABL-Grain Grantors that are junior in priority to the Liens securing the ABL-Grain Obligations on the ABL-Grain Priority Collateral of the ABL-Grain Grantors pursuant to the terms of the ABL-Grain Intercreditor Agreement, (iv) by Liens on the ABL-Trade Priority Collateral of the ABL-Trade Grantors that are junior in priority to the Liens securing the ABL-Trade Obligations on the ABL-Trade Priority Collateral of the ABL-Trade Grantors pursuant to the terms of the ABL-Trade Intercreditor Agreement. The ABL Loan Documents and the Term Loan Documents provide, among other things, that the parties thereto shall set forth in this Agreement their respective rights and remedies with respect to the Term Loan Priority Collateral;

The ABL-Cattle Obligations are to be secured (i) by Liens on the ABL-Cattle Priority Collateral of the ABL-Cattle Grantor that are senior in priority to the Liens

 

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securing the Term Loan Obligations on the ABL-Cattle Priority Collateral of the ABL-Cattle Grantors pursuant to the terms of the ABL-Cattle Intercreditor Agreement and (ii) by Liens on the Term Loan Priority Collateral of the New Grantors that are junior in priority to the Liens securing the Term Loan Obligations on the Term Loan Priority Collateral of the New Grantors pursuant to the terms of this Agreement;

The ABL-Grain Obligations are to be secured (i) by Liens on the ABL-Grain Priority Collateral of the ABL-Grain Grantors that are senior in priority to the Liens securing the Term Loan Obligations on the ABL-Grain Priority Collateral of the ABL-Grain Grantors pursuant to the terms of the ABL-Grain Intercreditor Agreement and (ii) by Liens on the Term Loan Priority Collateral of the New Grantors that are junior in priority to the Liens securing the Term Loan Obligations on the Term Loan Priority Collateral of the New Grantors pursuant to the terms of this Agreement;

The ABL-Trade Obligations are to be secured (i) by Liens on the ABL-Trade Priority Collateral of the ABL-Trade Grantors that are senior in priority to the Liens securing the Term Loan Obligations on the ABL-Trade Priority Collateral of the ABL-Trade Grantors pursuant to the terms of the ABL-Trade Intercreditor Agreement and (ii) by Liens on the Term Loan Priority Collateral of the New Grantors that are junior in priority to the Liens securing the Term Loan Obligations on the Term Loan Priority Collateral of the New Grantors pursuant to the terms of this Agreement; and

In consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, each of the ABL Agent (on behalf of each ABL Claimholder), the Pari Passu Collateral Agent and the Term Loan Collateral Agent (on behalf of each Term Loan Claimholder), intending to be legally bound, hereby agrees as follows:

AGREEMENT

SECTION 1.     Definitions .

1.1     Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

ABL Adequate Protection Payments has the meaning set forth in Section 6.3(b).

ABL Agent ” means ABL-Cattle Agent, ABL-Grain Agent and/or ABL-Trade Agent, as the context may require.

ABL Borrower ” means GP Cattle, GP Grain and/or GP Trade, as the context may require.

ABL-Cattle Agent ” has the meaning set forth in the Preamble to this Agreement.

 

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ABL-Cattle Claimholders ” means, at any relevant time, the holders of ABL-Cattle Obligations at that time, including the lenders and the agents under the ABL-Cattle Loan Documents.

ABL-Cattle Credit Agreement ” has the meaning set forth in the Recitals to this Agreement.

ABL-Cattle Debt ” means the ABL-Cattle Obligations.

ABL-Cattle Grantor ” means GP Cattle. For avoidance of doubt, neither the Company nor any other New Grantor shall be an ABL-Cattle Grantor.

ABL-Cattle Intercreditor Agreement ” means the ABL Intercreditor Agreement dated as of the date hereof, between the ABL-Cattle Agent and the Term Loan Collateral Agent, and acknowledged and agreed to by the ABL-Cattle Grantor, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

ABL-Cattle Loan Documents ” means the ABL-Cattle Credit Agreement and the Loan Documents (as defined in the ABL-Cattle Credit Agreement), including the Pari Passu Collateral Documents and each of the other agreements, documents and instruments entered into for the purpose of evidencing, governing, securing or perfecting the ABL-Cattle Obligations and any other document or instrument executed or delivered at any time in connection with any ABL-Cattle Obligations, including any intercreditor or joinder agreement among holders of ABL-Cattle Obligations, to the extent such are effective at the relevant time, as each may be amended, restated, amended and restated, supplemented, replaced or Refinanced or otherwise modified from time to time in accordance with the provisions of this Agreement.

ABL-Cattle Obligations ” means the “Secured Obligations” or similar term as defined in the ABL-Cattle Credit Agreement.

ABL-Cattle Priority Collateral ” means “ABL Priority Collateral” as defined in the ABL-Cattle Intercreditor Agreement; provided , for avoidance of doubt, ABL-Cattle Priority Collateral shall, at no time, include any assets or property, whether real, personal or mixed, of any Person other than the assets and property of the ABL-Cattle Grantor.

ABL-Cattle Priority Collateral Documents ” means any agreement, document or instrument, in each case pursuant to which a Lien is granted by the ABL-Cattle Grantor on ABL-Cattle Priority Collateral or pursuant to which any such Lien is perfected.

ABL Claimholders means the ABL-Cattle Claimholders, the ABL-Grain Claimholders and/or the ABL-Trade Claimholders, as the context may require, and for avoidance of doubt, shall include the Pari Passu Collateral Agent.

 

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ABL Controlling Agent ” means, (a) other than in connection with an Enforcement Action with respect to Term Loan Priority Collateral, the ABL Agent representing the holders of the ABL Obligations with the largest sum of (i) outstanding principal amount of ABL Obligations (including the undrawn face amount of any such ABL Obligations comprised of letters of credit and any ABL Obligations owed to a Swap Party) and (ii) the aggregate unfunded commitments to extend credit which, when funded, would constitute ABL Obligations and (b) in connection with an Enforcement Action in respect of Term Loan Priority Collateral, the ABL Agent or ABL Agents representing, or acting at the direction of, the holders of more than 50% of the aggregate outstanding principal amount of ABL Obligations (including the undrawn face amount of letters of credit and any ABL Obligations owed to a Swap Party); provided , that solely for purposes of a Pari Passu Collateral Document pursuant to which a Lien is granted to the Pari Passu Collateral Agent on any Real Property and such Real Property is subject to a Declined Real Property Lien and any provisions of this Agreement (other than Section 9.1(a)(6) as it relates to amendments and supplements to this Agreement), with respect to any Real Property that does not secure any Series of ABL Obligations as a result of a Declined Real Property Lien for such Series of ABL Obligations, the amount of ABL Obligations for such Series of ABL Obligations in respect of such Real Property or any proceeds thereof shall be zero. For these purposes, each holder of ABL Obligations will cast its votes in accordance with the applicable ABL Credit Agreement governing such ABL Obligations. Following and in accordance with the outcome of the applicable vote under its ABL Credit Agreement, the ABL Agent of particular ABL Obligations will cast all of its votes under such ABL Obligations as a block in respect of any vote under this Agreement.

ABL Credit Agreement ” means the ABL-Cattle Credit Agreement, the ABL-Grain Credit Agreement and/or the ABL-Trade Credit Agreement, as the context may require.

ABL Debt ” means the ABL-Cattle Debt, the ABL-Grain Debt and the ABL-Trade Debt.

ABL Debt Default ” means any event or condition that, under the terms of any ABL Credit Agreement causes, or permits holders of ABL Debt outstanding thereunder (with or without the giving of notice or lapse of time, or both, and whether or not notice has been given or time has lapsed) to cause, the ABL Debt outstanding thereunder to become immediately due and payable.

ABL-Grain Claimholders ” means, at any relevant time, the holders of ABL-Grain Obligations at that time, including the ABL Secured Parties (as defined in the ABL-Grain Intercreditor Agreement), lenders and the agents under the ABL-Grain Loan Documents.

ABL-Grain Agent ” has the meaning set forth in the Recitals to this Agreement.

 

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ABL-Grain Credit Agreement ” has the meaning set forth in the Recitals to this Agreement.

ABL-Grain Debt ” means the ABL-Grain Obligations.

ABL-Grain Grantor ” means GP Grain and each Subsidiary of GP Grain that has or may from time to time hereafter execute and deliver any ABL-Grain Priority Collateral Document as a “grantor” or “pledgor” (or the equivalent thereof) to secure any ABL-Grain Obligations. For avoidance of doubt, neither the Company nor any other New Grantor shall be an ABL-Grain Grantor.

ABL-Grain Intercreditor Agreement ” means the ABL Intercreditor Agreement dated as of the date hereof, between the ABL-Grain Agent and the Term Loan Collateral Agent, and acknowledged and agreed to by the ABL-Grain Grantors, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

ABL-Grain Loan Documents ” means the ABL-Grain Credit Agreement and the Loan Documents (as defined in the ABL-Grain Credit Agreement), including the Pari Passu Collateral Documents and each of the other agreements, documents and instruments entered into for the purpose of evidencing, governing, securing or perfecting the ABL-Grain Obligations and any other document or instrument executed or delivered at any time in connection with any ABL-Grain Obligations, including any intercreditor or joinder agreement among holders of ABL-Grain Obligations, to the extent such are effective at the relevant time, as each may be amended, restated, amended and restated, supplemented, replaced or Refinanced or otherwise modified from time to time in accordance with the provisions of this Agreement.

ABL-Grain Obligations ” means the “Obligations” or similar term as defined in the ABL-Grain Credit Agreement.

ABL-Grain Priority Collateral ” means “ABL Priority Collateral” as defined in the ABL-Grain Intercreditor Agreement; provided , for avoidance of doubt, ABL-Grain Priority Collateral shall, at no time, include any assets or property, whether real, personal or mixed, of any Person other than the assets and property of the ABL-Grain Grantors.

ABL-Grain Priority Collateral Documents ” means any agreement, document or instrument, in each case pursuant to which a Lien is granted by an ABL-Grain Grantor on ABL-Grain Priority Collateral or pursuant to which any such Lien is perfected.

ABL Intercreditor Agreement ” means, the ABL-Cattle Intercreditor Agreement, the ABL-Grain Intercreditor Agreement and/or the ABL-Trade Intercreditor Agreement, as the context may require.

 

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ABL Loan Documents ” means the ABL-Cattle Loan Documents, the ABL-Grain Loan Documents and/or the ABL-Trade Loan Documents, as the context may require and shall for avoidance of doubt, include the Pari Passu Collateral Documents.

ABL Obligations ” means the ABL-Cattle Obligations, the ABL-Grain Obligations and/or the ABL-Trade Obligations, as the context may require.

ABL Priority Collateral ” means the ABL-Cattle Priority Collateral, the ABL-Grain Priority Collateral and/or the ABL-Trade Priority Collateral, as the context may require.

ABL Priority Collateral Documents ” means the ABL-Cattle Priority Collateral Documents, the ABL-Grain Priority Collateral Documents and/or the ABL-Trade Priority Collateral Documents, as the context may require.

ABL Priority Collateral Grantor ” means each ABL-Cattle Grantor, ABL-Grain Grantor and/or ABL-Trade Grantor.

ABL Pro Rata Percentage ” means, with respect to any Series of ABL Obligations, the percentage calculated by dividing (a) the aggregate outstanding amount of such Series of ABL Obligations (taking into account Bank Product Obligations, the undrawn face amount of any such ABL Obligations comprised of letters of credit and any ABL Obligations owed to a Swap Party that are secured pursuant to any applicable ABL Loan Document, but in each case only to the extent deducted from or reserved under the borrowing base under the applicable ABL Loan Documents and expressly excluding any other contingent obligations not then liquidated), by (b) the aggregate amount of all ABL Obligations of all ABL Claimholders (taking into account Bank Product Obligations, the undrawn face amount of any such ABL Obligations comprised of letters of credit and any ABL Obligations owed to a Swap Party that are secured pursuant to any applicable ABL Loan Document, but in each case only to the extent deducted from or reserved under the borrowing base under the applicable ABL Loan Documents and expressly excluding any other contingent obligations not then liquidated); provided , that solely for purposes of Section 9.4 of this Agreement, with respect to any Real Property that does not secure any Series of ABL Obligations as a result of a Declined Real Property Lien for such Series of ABL Obligations, the ABL Pro Rata Percentage for such Series of ABL Obligations in respect of such Real Property and any proceeds thereof shall be zero.

ABL-Trade Claimholders ” means, at any relevant time, the holders of ABL-Trade Obligations at that time, including the lenders and the agents under the ABL-Trade Loan Documents.

ABL-Trade Agent ” has the meaning set forth in the Recitals to this Agreement.

ABL-Trade Credit Agreement ” has the meaning set forth in the Recitals to this Agreement.

 

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ABL-Trade Debt ” means the Indebtedness now or hereafter incurred pursuant to the ABL-Trade Loan Documents.

ABL-Trade Grantor ” means GP Trade, GP Commodity and each Subsidiary of GP Trade or GP Commodity that has or may from time to time hereafter execute and deliver any ABL-Grain Priority Collateral Document as a “grantor” or “pledgor” (or the equivalent thereof) to secure any ABL-Trade Obligations.

ABL-Trade Intercreditor Agreement ” means the ABL Intercreditor Agreement dated as of the date hereof, between the ABL-Trade Agent and the Term Loan Collateral Agent, and acknowledged and agreed to by the ABL-Trade Grantors, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

ABL-Trade Loan Documents ” means the ABL-Trade Credit Agreement and the Other Documents (as defined in the ABL-Trade Credit Agreement), including the Pari Passu Collateral Documents and each of the other agreements, documents and instruments entered into for the purpose of evidencing, governing, securing or perfecting the ABL-Trade Obligations and any other document or instrument executed or delivered at any time in connection with any ABL-Trade Obligations, including any intercreditor or joinder agreement among holders of ABL-Trade Obligations, to the extent such are effective at the relevant time, as each may be amended, restated, amended and restated, supplemented, replaced or Refinanced or otherwise modified from time to time in accordance with the provisions of this Agreement.

ABL-Trade Obligations ” means the “Obligations” or similar term as defined in the ABL-Trade Credit Agreement.

ABL-Trade Priority Collateral ” means “ABL Priority Collateral” as defined in the ABL-Trade Intercreditor Agreement; provided , for avoidance of doubt, ABL-Trade Priority Collateral shall, at no time, include any assets or property, whether real, personal or mixed, of any Person other than the assets and property of the ABL-Trade Grantors.

ABL-Trade Priority Collateral Documents ” means any agreement, document or instrument, in each case pursuant to which a Lien is granted by an ABL-Trade Grantor on ABL-Trade Priority Collateral or pursuant to which any such Lien is perfected.

Affiliate ” means, with respect to a specified Person, (a) any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with the Person specified or is a director or officer of the Person specified or (b) any other Person that directly or indirectly owns 10% or more of any class of equity interests of the Person specified.

Agreement ” has the meaning set forth in the Preamble to this Agreement.

 

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Bank Product Obligations ” means, all obligations and liabilities (whether direct or indirect, absolute or contingent, due or to become due or now existing or hereafter incurred) of any ABL Priority Collateral Grantor, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise, which may arise under, out of, or in connection with credit cards, credit card processing services, debit cards and stored value cards, purchase cards, ACH transactions, any treasury, investment, depository, clearing house, wire transfer, cash management or automated clearing house transfers of funds services or any related services, to any Person permitted to be a secured party in respect of such obligations under the applicable ABL Loan Documents.

Bankruptcy Case ” means a case under the Bankruptcy Code or any other Bankruptcy Law.

Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

Bankruptcy Law ” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.

Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.

Claimholders ” means the Term Loan Claimholders and/or the ABL Claimholders, as the context may require.

Collateral Agent ” means any Pari Passu Collateral Agent and/or any Term Loan Collateral Agent, as the context may require.

Collateral Documents ” means the Term Collateral Documents and the Pari Passu Collateral Documents.

Company ” has the meaning set forth in the Recitals to this Agreement.

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

Declined Real Property Lien ” means a Lien on any Real Property of any New Grantor that any ABL Agent states in writing to the Company, the Pari Passu Collateral Agent and the other ABL Agents that such ABL Agent expressly declines, on behalf of the ABL Claimholders represented by it, to accept a Lien on such Real Property to secure such Series of ABL Obligations.

DIP Financing ” has the meaning set forth in Section 6.1.

 

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Discharge of ABL Obligations ” means the Discharge of Series of ABL Obligations for each Series of ABL Obligations.

Discharge of Series of ABL Obligations means, except to the extent otherwise expressly provided in Section 5.6, each of the following has occurred with respect to any Series of ABL Obligations:

(a)     payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness outstanding under the ABL Loan Documents of such Series of ABL Obligations;

(b)     payment in full in cash of all Hedging Obligations and Bank Product Obligations constituting ABL Obligations of such Series of ABL Obligations or the cash collateralization of all such Hedging Obligations and Bank Product Obligations on terms satisfactory to each applicable counterparty (or the making of other arrangements satisfactory to the applicable counterparty);

(c)     payment in full in cash of all other ABL Obligations of such Series of ABL Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (other than any indemnification obligations for which no claim or demand for payment, whether oral or written, has been made at such time);

(d)     termination or expiration of all commitments, if any, to extend credit that would constitute ABL Obligations of such Series of ABL Obligations; and

(e)     termination or cash collateralization (in an amount and manner reasonably satisfactory to the applicable letter of credit issuer, but in no event greater than 105% of the aggregate undrawn face amount), or the making of other arrangements satisfactory to the applicable letter of credit issuer of all letters of credit issued under the ABL Loan Documents of such Series of ABL Obligations;

provided , that the Discharge of Series of ABL Obligations shall be deemed not to have occurred if any ABL Loan Document of such Series of ABL Obligations is Refinanced in accordance with Section 5.3 and such Refinanced Indebtedness is then in effect and has not itself been Discharged or Refinanced in accordance with Section 5.3.

Discharge of Term Loan Obligations means, except to the extent otherwise expressly provided in Section 5.6, each of the following has occurred:

(a)     payment in full in cash of the principal of and interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest would be allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness outstanding under the Term Loan Documents;

 

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(b)     payment in full in cash of all Hedging Obligations constituting Term Loan Obligations or the cash collateralization of all such Hedging Obligations on terms satisfactory to each applicable counterparty (or the making of other arrangements satisfactory to the applicable counterparty);

(c)     payment in full in cash of all other Term Loan Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (other than any indemnification obligations for which no claim or demand for payment, whether oral or written, has been made at such time); and

(d)     termination or expiration of all commitments, if any, to extend credit that would constitute Term Loan Obligations;

provided , that the Discharge of Term Loan Obligations shall be deemed not to have occurred if any Term Loan Document is Refinanced in accordance with Section 5.3 and such Refinanced Indebtedness is then in effect and has not itself been Discharged or Refinanced in accordance with Section 5.3.

Disposition ” has the meaning set forth in Section 5.1(b).

Enforcement Action ” means any action to:

(a)     foreclose, execute, levy, or collect on, take possession or control of (other than for purposes of perfection), sell or otherwise realize upon (judicially or non-judicially), or lease, license, or otherwise dispose of (whether publicly or privately), Term Loan Priority Collateral, or otherwise exercise or enforce remedial rights with respect to Term Loan Priority Collateral under the Term Loan Documents or the ABL Loan Documents, including any Pari Passu Collateral Documents (including by way of setoff, recoupment, notification of a public or private sale or other disposition pursuant to the UCC or other applicable law, notification to account debtors, notification to depositary banks under deposit account control agreements, or exercise of rights under landlord consents, if applicable);

(b)     solicit bids from third Persons, approve bid procedures for any proposed disposition of Term Loan Priority Collateral, to conduct the liquidation or disposition of Term Loan Priority Collateral or engage or retain sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers, or other third Persons for the purposes of valuing, marketing, promoting, and selling Term Loan Priority Collateral;

(c)     receive a transfer of Term Loan Priority Collateral in satisfaction of Indebtedness or any other Obligation secured thereby;

(d)     otherwise enforce a security interest or exercise another right or remedy, as a secured creditor or otherwise, pertaining to the Term Loan Priority Collateral at law, in equity, or pursuant to the Term Loan Documents or ABL Loan Documents, including any Pari Passu Collateral Documents, in each case to the extent relating to the Term Loan Priority Collateral (including the commencement of applicable

 

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legal proceedings or other actions with respect to all or any portion of the Term Loan Priority Collateral to facilitate the actions described in the preceding clauses, and exercising voting rights in respect of equity interests comprising Term Loan Priority Collateral); or

(e)    effectuate or cause the Disposition of Term Loan Priority Collateral by any New Grantor after the occurrence and during the continuation of an event of default under the Term Loan Documents or the ABL Loan Documents with the consent of the Term Loan Collateral Agent (or Term Loan Claimholders) or the Pari Passu Collateral Agent (or ABL Claimholders), as applicable.

Governmental Authority ” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.

GP Cattle ” has the meaning set forth in the Recitals to this Agreement.

GP Commodity ” means Green Plains Commodity Management LLC.

GP Grain ” has the meaning set forth in the Recitals to this Agreement.

GP Trade ” has the meaning set forth in the Recitals to this Agreement.

Hedge Agreement means a Swap Contract entered into by an ABL Priority Collateral Grantor with a counterparty as permitted under the ABL Loan Documents of the applicable Series of ABL Obligations.

Hedging Obligation ” of any Person means any obligation of such Person pursuant to any Hedge Agreement.

Indebtedness ” means and includes all indebtedness for borrowed money; for the avoidance of doubt, “Indebtedness” shall not include reimbursement or other obligations in respect of letters of credit or Hedging Obligations.

Insolvency or Liquidation Proceeding ” means:

(a)     any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to any New Grantor;

(b)     any other voluntary or involuntary insolvency, reorganization or Bankruptcy Case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any New Grantor or with respect to a material portion of their respective assets;

 

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(c)     any liquidation, dissolution, reorganization or winding up of any New Grantor whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or

(d)    any assignment for the benefit of creditors or any other marshaling of assets and liabilities of any New Grantor.

Joinder Agreement ” means a supplement to this Agreement in the form of Exhibit A hereto required to be executed pursuant to Section 8.17 hereof.

Lien ” means any lien (including, judgment liens and liens arising by operation of law), mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, call, trust (whether contractual, statutory, deemed, equitable, constructive, resulting or otherwise), UCC financing statement or other preferential arrangement having the practical effect of any of the foregoing, including any right of set-off or recoupment.

New ABL Agent ” has the meaning set forth in Section 5.6(b).

New ABL Debt Notice has the meaning set forth in Section 5.6(b).

New Grantor ” means the Company and each Subsidiary (other than any ABL Priority Collateral Grantor) of the Company that has or may from time to time hereafter execute and deliver any Pari Passu Collateral Document, any other ABL Loan Document, any Term Loan Collateral Document or any other Term Loan Document, in each case, as a “grantor” or “pledgor” (or the equivalent thereof) to secure any ABL Obligations or Term Loan Obligations, as the case may be.

New Term Loan Agent ” has the meaning set forth in Section 5.6(a).

New Term Debt Notice has the meaning set forth in Section 5.6(a).

Obligations ” means all obligations of every nature (including Bank Product Obligations) of each New Grantor from time to time owed to any agent or trustee, the ABL Claimholders, the Term Loan Claimholders or any of them or their respective Affiliates, in each case, under the ABL Loan Documents, the Term Loan Documents or Hedge Agreements, whether for principal, interest or payments for early termination of Swap Contracts, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing and including any interest and fees that accrue after the commencement by or against any Person of any proceeding under any Bankruptcy Law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

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Officer’s Certificate ” means a certificate with respect to compliance with a condition or covenant provided for in this Agreement, signed on behalf of the Company by two officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, including:

(a)     a statement that the Person making such certificate has read such covenant or condition;

(b)     a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based;

(c)     a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

(d)     a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.

Pari Passu Collateral Agent ” has the meaning set forth in the Preamble to this Agreement.

Pari Passu Collateral Documents ” means any agreement, document or instrument, in each case pursuant to which a Lien is granted by a New Grantor to the Pari Passu Collateral Agent securing any ABL Obligations or pursuant to which any such Lien is perfected.

Pay-Over Amount has the meaning set forth in Section 6.3(b).

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership, Governmental Authority or other entity.

Post-Petition Interest ” means interest, fees, expenses and other charges that pursuant to the ABL Loan Documents or the Term Loan Documents, as applicable, continue to accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest, fees, expenses and other charges are allowed or allowable under the Bankruptcy Law or in any such Insolvency or Liquidation Proceeding.

Purchase Price ” has the meaning set forth in Section 5.7.

Real Property ” means any real property of any New Grantor on which a Lien has been granted to secure Term Loan Obligations pursuant to a Term Loan Document and a Lien has been granted to secure ABL Obligations pursuant to a Pari Passu Collateral Document.

Recovery ” has the meaning set forth in Section 6.5.

Refinance ” means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, modify, supplement, restructure, replace, refund or repay, or to

 

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issue other Indebtedness in exchange or replacement for, such Indebtedness in whole or in part and regardless of whether the principal amount of such Refinancing Indebtedness is the same, greater than or less than the principal amount of the Refinanced Indebtedness. “ Refinanced ” and “ Refinancing shall have correlative meanings.

Series of ABL Obligations ” means, severally, the ABL-Cattle Obligations, the ABL-Grain Obligations and the ABL-Trade Obligations.

Short Fall has the meaning set forth in Section 6.3(b).

Subsidiary ” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.

Swap Contract ” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options for forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including such obligations or liabilities under any Master Agreement and (c) any “Swap Contract” as defined in any of the ABL Intercreditor Agreements.

Swap Party ” means a counterparty to any Hedge Agreement.

Term Loan Agreement ” has the meaning set forth in the Recitals to this Agreement.

Term Loan Claimholders ” means, at any relevant time, the holders of Term Loan Obligations at that time, including the Term Loan Lenders and the agents under the Term Loan Documents.

Term Loan Collateral Documents ” means the Collateral Documents (as defined in the Term Loan Agreement) and any other agreement, document or instrument, in each case pursuant to which a Lien is granted by a New Grantor securing any Term Loan Obligations or pursuant to which any such Lien is perfected.

 

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Term Loan Collateral Agent ” has the meaning set forth in the Recitals in this Agreement.

Term Loan Debt ” means the Indebtedness now or hereafter incurred pursuant to the Term Loan Documents.

Term Loan Documents ” means the Term Loan Agreement and the Loan Documents (as defined in the Term Loan Agreement) and each of the other agreements, documents and instruments entered into for the purpose of evidencing, governing, securing or perfecting the Term Loan Obligations, and any other document or instrument executed or delivered at any time in connection with any Term Loan Obligations, including any intercreditor or joinder agreement among holders of Term Loan Obligations to the extent such are effective at the relevant time, as each may be amended, restated, amended and restated, supplemented, replaced or Refinanced or otherwise modified from time to time in accordance with the provisions of this Agreement.

Term Loan Guarantors ” has the meaning set forth in the Recitals to this Agreement.

Term Loan Guaranty ” has the meaning set forth in the Recitals to this Agreement.

Term Loan Lenders ” means the “Lenders” under and as defined in the Term Loan Agreement.

Term Loan Mortgages ” means a collective reference to each mortgage, deed of trust and any other document or instrument under which any Lien on real property owned or leased by any New Grantor is granted to secure any Term Loan Obligations or under which rights or remedies with respect to any such Liens are governed.

Term Loan Obligations ” means all “ Obligations” or similar term as defined in the Term Loan Agreement.

Term Loan Obligors ” has the meaning set forth in the Recitals to this Agreement.

Term Loan Pledged Collateral ” has the meaning set forth in Section 5.5.

Term Loan Priority Collateral ” means, at any time, all of the assets and property of any New Grantor, whether real, personal or mixed, in which the holders of Term Loan Obligations (or any agent therefor including the Term Loan Collateral Agent) and the holders of ABL Obligations (or any agent therefor including the Pari Passu Collateral Agent) hold, purport to hold or are required to hold, a security interest at such

 

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time (or, in the case of the Term Loan Obligations, are deemed pursuant to Section 2 to hold a security interest), including any property of any New Grantor subject to Liens granted pursuant to Section 6 to secure both Term Loan Obligations and ABL Obligations. For the avoidance of doubt, Term Loan Priority Collateral shall, at no time, include any assets or property, whether real, personal or mixed, of any Person other than the assets and property of the New Grantors.

UCC ” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

1.2    Terms Generally. The definitions of terms in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise:

(a)    any definition of or reference herein to any agreement, instrument or other document, shall be construed as referring to such agreement, instrument or other document, as amended, restated, amended and restated, supplemented or otherwise modified from time to time to the extent permitted herein and any reference herein to any statute or regulations shall include any amendment, renewal, extension or replacement thereof;

(b)    any reference herein to any Person shall be construed to include such Person’s successors and assigns from time to time;

(c)    the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof;

(d)    all references herein to Sections shall be construed to refer to Sections of this Agreement; and

(e)    the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

SECTION 2.     Lien Priorities .

2.1    Relative Priorities. Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the ABL Loan Obligations granted on the Term Loan Priority Collateral or of any Liens securing the Term Loan Obligations granted on the Term Loan Priority Collateral and notwithstanding any provision of the UCC or any other applicable law or the ABL Loan Documents or any defect or deficiencies in, or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise of, the Liens on the Term Loan Priority

 

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Collateral securing the Term Loan Obligations, the subordination of such Liens to any other Liens, or any other circumstance whatsoever, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any New Grantor, the Pari Passu Collateral Agent, for itself and on behalf of each other ABL Claimholder, hereby agrees that:

(a)    any Lien on the Term Loan Priority Collateral securing any Term Loan Obligations now or hereafter held by or on behalf of the Term Loan Collateral Agent or any Term Loan Claimholders or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Term Loan Priority Collateral securing any ABL Obligations; and

(b)    any Lien on the Term Loan Priority Collateral securing any ABL Obligations now or hereafter held by or on behalf of the Pari Passu Collateral Agent, any ABL Claimholders or any agent or trustee therefor regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Term Loan Priority Collateral securing any Term Loan Obligations. All Liens on the Term Loan Priority Collateral securing any Term Loan Obligations shall be and remain senior in all respects and prior to all Liens on the Term Loan Priority Collateral securing any ABL Obligations for all purposes, whether or not such Liens securing any Term Loan Obligations are subordinated to any Lien securing any other obligation of any New Grantor.

2.2    Prohibition on Contesting Liens; No Marshaling. Each of the Pari Passu Collateral Agent, for itself and on behalf of each other ABL Claimholder, and the Term Loan Collateral Agent, for itself and on behalf of each other Term Loan Claimholder, agrees that it will not (and hereby waives any right to) directly or indirectly contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the priority, validity, perfection, extent or enforceability of a Lien held, or purported to be held, by or on behalf of any of the Term Loan Claimholders in the Term Loan Priority Collateral or by or on behalf of any of the ABL Claimholders in the Term Loan Priority Collateral, as the case may be, or the amount, nature or extent of the Term Loan Obligations or ABL Obligations or the provisions of this Agreement; provided, that nothing in this Agreement shall be construed to prevent or impair the rights of the Term Loan Collateral Agent or any other Term Loan Claimholder to enforce this Agreement, including the provisions of this Agreement relating to the priority of the Liens on the Term Loan Priority Collateral securing the Term Loan Obligations as provided in Sections 2.1 and 3.1. Until the Discharge of Term Loan Obligations, neither the Pari Passu Collateral Agent nor any other ABL Claimholder will assert any marshaling, appraisal, valuation or other similar right that may otherwise be available to a junior secured creditor.

 

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2.3    No New Liens. So long as the Discharge of Term Loan Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any New Grantor, no New Grantor shall:

(a)    grant or permit any additional Liens on any asset or property of such New Grantor to secure any ABL Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure the Term Loan Obligations, the parties hereto agreeing that any such Lien shall be subject to Section 2.1; provided that this provision will not be violated with respect to any Term Loan Obligations if the Term Loan Collateral Agent is given a reasonable opportunity to accept a Lien on any asset or property of any New Grantor and either the Company or the Term Loan Collateral Agent states in writing that the Term Loan Documents prohibit the Term Loan Collateral Agent from accepting a Lien on such asset or property of such New Grantor, or the Term Collateral Agent otherwise expressly declines to accept a Lien on such asset or property of such New Grantor (any such prohibited or declined lien, a “ Term Declined Lien ”).

(b)    grant or permit any additional Liens on any asset or property of such New Grantor to secure any Term Loan Obligations unless it has granted or concurrently grants a Lien on such asset or property to secure the ABL Obligations; provided that this provision will not be violated with respect to any ABL Obligations if the Pari Passu Collateral Agent is given a reasonable opportunity to accept a Lien on any asset or property of any New Grantor and either the Company or the Pari Passu Collateral Agent states in writing that the ABL Loan Documents prohibit the Pari Passu Collateral Agent from accepting a Lien on such asset or property of such New Grantor, or the Pari Passu Collateral Agent otherwise declines to accept a Lien on such asset or property of such New Grantor (any such prohibited or declined lien, a “ ABL Declined Lien ”).

If the Pari Passu Collateral Agent or any ABL Claimholder shall hold any Lien on any assets or property of any New Grantor securing any ABL Obligations that are not also subject to the first-priority Liens, other than any Term Declined Liens, securing all Term Loan Obligations under the Term Loan Collateral Documents, the Pari Passu Collateral Agent or such ABL Claimholder (i) shall notify the Term Loan Collateral Agent promptly upon becoming aware thereof and, unless such New Grantor shall promptly grant a similar Lien, other than any such Lien that would constitute a Term Declined Lien, on such assets or property to the Term Loan Collateral Agent as security for the Term Loan Obligations, the Pari Passu Collateral Agent and ABL Claimholders shall be deemed to hold and have held such Lien for the benefit of the Term Loan Collateral Agent and the other Term Loan Claimholders, other than any Term Loan Claimholders whose Term Loan Documents prohibit them from taking such Liens, as security for the Term Loan Obligations. To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available to any Term Loan Collateral Agent and/or the Term Loan Claimholders, the Pari Passu Collateral Agent, on behalf of each ABL Claimholder, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.

Notwithstanding anything in this Agreement to the contrary, prior to the Discharge of the Term Loan Obligations, cash and cash equivalents may be pledged by New Grantors to secure Term Loan Obligations consisting of reimbursement obligations in respect of letters of credit issued pursuant to the Term Loan Documents without granting a Lien thereon to secure any ABL Obligations. Nothing in this Section 2.3 shall apply to any assets or property of any Person other than the New Grantors.

 

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(c)    Except as provided in Section 3.1(e) hereof, no ABL Agent or ABL Claimholder other than the Pari Passu Collateral Agent shall accept or obtain any Lien to secure ABL Obligations on any asset or property of any New Grantor. If any ABL Agent or any other ABL Claimholder shall hold any Lien on any assets or property of any New Grantor securing any Series of ABL Obligations, such ABL Agent or ABL Claimholder shall (i) notify the Term Loan Col