Debtor-In-Possession Credit Agreement dated as of November 18, 2020, by and among General Moly, Inc. and the DIP Lenders

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

 

(c) net obligations of such Person under any swap agreement;

 

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in the case of any such trade account payables, not past due for more than 60 days);

 

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

(f) Capital Leases;

 

(g) all obligations of such Person prior to the Maturity Date to purchase, redeem, retire, defease or otherwise make any payment in cash or cash equivalents in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

 

 

(h) all Guarantees of such Person in respect of any of the foregoing.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) the granting of Permitted Liens;

 

(b) (i) any involuntary loss, damage or destruction of property and (ii) to the extent such property is equipment, the disposition of the assets so damaged or destroyed for fair market value (if any);

 

(c) the making of a Permitted Investment;

 

(d) sale, liquidation or otherwise disposal of obsolete, surplus or worn-out property in an aggregate amount not to exceed $20,000 during the term of this Agreement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) The definitions of terms herein 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, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, restated or otherwise modified (subject to any restrictions on such amendments, supplements, restatements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law, and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal property and tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

(b) 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.”

 

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

 

 

 

 

 

 

 

(a) Interim Facility. Subject to the terms and conditions set forth herein (including without limitation the conditions set forth in Sections 4.01 and 4.02) and subject to the terms and conditions of the DIP Order, on the Closing Date, each Lender agrees, severally and not jointly with the other Lenders, to make term loans to the Borrower in one advance in Dollars in an amount equal to such Lender’s Initial DIP Commitment (the “Initial DIP Loans”). Each Lender’s Initial DIP Commitment shall expire upon the funding by such Lender of the full amount of such Lender’s Initial DIP Loans. For the avoidance of doubt, no Lender is obligated under any other Lender’s Initial DIP Commitment.

 

(b) Final Facility. Subject to the terms and conditions set forth herein (including without limitation the conditions set forth in Section 4.02) and subject to the terms and conditions of the DIP Order, after the Closing Date, each Lender agrees, severally and not jointly with the other Lenders, to make term loans to the Borrower in one or more advances in Dollars in an aggregate amount equal to such Lender’s Additional DIP Commitment (the “Additional DIP Loans”). Each Lender’s Additional DIP Commitment shall expire upon the earlier of (i) funding by such Lender of the full amount of such Lender’s Additional DIP Loans and (ii) the Maturity Date. For the avoidance of doubt, no Lender is obligated under any other Lender’s Additional DIP Commitment.

 

(c) Once repaid, whether such repayment is voluntary or required, amounts borrowed (or deemed borrowed) under this Section 2.01 may not be reborrowed.

 

 

(a) Unless otherwise agreed by the Agent, the Additional DIP Commitment shall be advanced to the Borrower, subject to the terms and conditions set forth herein and subject to the terms and conditions of the DIP Order, as follows: (i) $300,000 upon delivery by the Borrower to the Agent of (x) all required modifications, amendments and waivers under the Eureka Moly LLC joint venture agreement as contemplated by the Restructuring Support Agreement, signed by the parties thereto, and (y) an amendment to the lease between Mount Hope Mines Inc. and Eureka Moly LLC as contemplated by the Restructuring Support Agreement, signed by the parties thereto, and (ii) $700,000 upon confirmation of the Plan of Reorganization.

 

(b) Each Borrowing of the Loans shall be made upon the Borrower’s irrevocable written notice to the Agent and the Lenders in substantially the form of Exhibit A. Such notice must be received by the Agent and the Lenders not later than 12:00 p.m. three (3) Business Days prior to the requested date of any Borrowing (or such later time as may be agreed to by the Agent and each Lender, each in its sole discretion). The Borrowing Request shall specify (i) the requested date of the borrowing (which shall be a Business Day), (ii) the principal amount of Loans to be borrowed, (iii) wire instructions of the account(s) to which funds are to be disbursed, (iv) a certification by the Borrower that the conditions precedent set forth in Article IV have been and remain satisfied, (v) a certification as to the completion of applicable Milestones by the dates for completion of such Milestones as set forth in Section 4.02(g), and (vi) a certification as to the use of such Borrowing in accordance with Section 4.02(h).

 

 

(a) Voluntary Prepayments. The Borrower may, upon notice to the Agent and the Lenders, at any time or from time to time, voluntarily prepay any Loans in whole or in part without premium or penalty; provided that such notice must be received by the Agent and the Lenders not later than 2:00 p.m. three (3) Business Days prior to any date of prepayment of Loans. Each such notice shall specify the date and amount of such prepayment. Any prepayment of a Loan shall be accompanied by all accrued interest thereon.

 

(b) Mandatory Prepayments of Loans.

 

(i) Dispositions and Involuntary Dispositions. Upon the receipt by the Borrower of the Net Cash Proceeds of any Disposition or Involuntary Disposition consummated on or after the Closing Date, the Borrower shall, immediately upon the realization or receipt by the Borrower of such Net Cash Proceeds, prepay the Loans as hereafter provided in an aggregate amount equal to 100% of the Net Cash Proceeds of such Disposition or Involuntary Disposition.

 

 

(ii) Debt and Equity Issuances. Upon the receipt by the Borrower after the Closing Date of the Net Cash Proceeds (x) of any Debt Issuance not permitted under Section 7.03 or (y) from the sale or issuance by the Borrower of any of its Equity Interests, in each case the Borrower shall, immediately upon the realization or receipt by the Borrower of such Net Cash Proceeds, prepay the Loans as hereafter provided in an aggregate amount equal to 100% of such Net Cash Proceeds.

 

(iii) Notice of Prepayment. The Borrower shall notify the Agent and the Lenders in writing of any mandatory prepayment of Loans required to be made by the Borrower pursuant to clauses (i) and (ii) of this Section 2.03(b) not later than 12:00 p.m. at least one (1) Business Day prior to the required date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made by the Borrower.

 

(iv) Application of Mandatory Prepayments. All amounts to be paid pursuant to Section 2.03(a) or (b) shall be applied as follows:

 

(A) First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Article III) payable in accordance with the Loan Documents to the Agent;

 

(B) Second, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Lenders and amounts payable under Article III) payable in accordance with the Loan Documents to the Lenders;

 

(C) Second, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans; and

 

(D) Third, to payment of that portion of the Obligations constituting unpaid principal payments.

 

 

 

 

 

(a) Loans. Subject to the provisions of Section 2.05(b), the Loans shall bear interest on the outstanding principal amount, compounding daily, with such accrued interest being capitalized and added to the principal amount of the Loans on each Interest Payment Date at a rate per annum equal to 12.00% (the “Interest Rate”).

 

(b) Default Interest.

 

(i) Upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding Obligations hereunder at an interest rate per annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.

 

(ii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c) Interest Payment. Interest shall accrue and be added and capitalized to the outstanding principal balance of the Loans on each Interest Payment Date. From and after each applicable Interest Payment Date, the outstanding principal amount of the Loans shall without further action by any party hereto be deemed to be increased by the aggregate amount of interest so capitalized and added to the Loans in accordance with the immediately preceding sentence, whereupon such amount of interest so capitalized and added shall also accrue interest in accordance with the terms of this Section 2.05. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. Interest at the Default Rate shall be payable on demand.

 

(d) Computation of Interest and Fees. All computations of interest for the Loans shall be made on the basis of a 365-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day. Each determination by the Lender of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

 

 

 

 

 

 

 

 

(a) General. Any and all payments by the Borrower hereunder shall be made in full, free and clear of and without deduction or withholding for any and all present or future Taxes. If the Borrower shall be required by law to deduct or withhold any Taxes from or in respect of any such payment to a Lender or the Agent, (i) the sum payable shall, subject to applicable law, be increased as may be necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 3.01), such Lender or the Agent, as applicable, receives an amount equal to the amount it would have received had no such deductions or withholdings been made, (ii) the Borrower shall make such deductions or withholdings and (iii) the Borrower shall pay the full amount required to be deducted or withheld to the relevant taxation authority or other authority in accordance with applicable law and within the time for payment prescribed by applicable law.

 

(b) Other Taxes. In addition, the Borrower agrees to pay any present or future Other Taxes, other than Excluded Taxes.

 

(c) Tax Indemnity. The Borrower hereby indemnifies each Lender for, and agree to hold each Lender and the Agent harmless from, the full amount of all Taxes and Other Taxes payable by such Lender or the Agent, as applicable (other than Excluded Taxes), and any liability, cost or amount (including penalties, interest and expenses) arising therefrom or with respect thereto.

 

(d) Payment of Taxes. Within thirty (30) days after the date required for payment of any Taxes or Other Taxes required to be deducted or withheld by the Borrower in respect of any payment or delivery to a Lender or the Agent, the Borrower will furnish to such Lender or the Agent, as applicable, a form of evidence of payment thereof acceptable to such Lender or the Agent, as applicable, in its sole discretion.

 

 

 

 

 

 

 

 

(a) Credit Agreement. Receipt by the Agent and the Lenders of executed counterparts of this Agreement and the other Loan Documents, properly executed by a Responsible Officer of the Borrower.

 

(b) Resolutions. Receipt by the Agent and the Lenders of such copies of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officer of the Borrower as Agent may require evidencing the identity, authority and capacity of such Responsible Officer authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents, and the authorization of the Borrower to enter into and perform its obligations under the Loan Documents, in form and substance reasonably satisfactory to the Agent and its legal counsel.

 

(c) Evidence of Insurance. Receipt by the Agent and the Lenders of certificates of insurance and related endorsements of the Borrower evidencing insurance meeting the requirements of Section 6.07.

 

(d) Interim Order. The Interim Order, in form and substance satisfactory to the Agent, has been entered into, shall be in full force and effect, shall not have been amended, modified, stayed or reversed and shall not be subject to any pending stay.

 

(e) Approved Budget. The Borrower and the Agent shall have agreed upon the Initial Budget and such Initial Budget shall have been delivered to the Agent and the Lenders.

 

(f) Chapter 11 Case. The Chapter 11 Case shall have been commenced and all of the “first day orders” and all related pleadings to be entered at the time of commencement of the Chapter 11 Case or shortly thereafter shall have been provided in advance to the Agent and the Lenders and shall be in form, scope and substance satisfactory to the Agent.

 

(g) Restructuring Support Agreement. Debtor shall have delivered to the Agent and the Lenders a fully executed copy of the Restructuring Support Agreement, together with any modifications thereto, in form and substance satisfactory to the Agent, and as of the Closing Date the Restructuring Support Agreement shall remain in full force and effect with no breaches or defaults.

 

(h) Consent, Approvals, Etc. Debtor shall have delivered to Agent and the Lenders such third party consents, approvals, waivers and modifications as reasonably requested by the Agent or that are otherwise required for the consummation of the transactions contemplated by the Loan Documents.

 

(i) Additional Documents and Information. The Borrower shall have delivered to the Agent and the Lenders such additional documents and information as the Agent may reasonably request.

 

 

 

(a) Accuracy of Representations and Warranties. The representations and warranties of the Borrower contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date.

 

 

(b) No Default. No Default or Event of Default shall exist or would result from the making of such Loans or from the application of the proceeds thereof.

 

(c) Borrowing Request. The Agent and the Lenders shall have received a Borrowing Request in accordance with the requirements of this Agreement.

 

(d) Responsible Officer Certificate. Receipt by the Agent and the Lenders of a certificate of a Responsible Officer of the Borrower, in form and substance reasonably satisfactory to the Agent, certifying compliance with the conditions precedent set forth in this Section 4.02.

 

(e) DIP Order. The DIP Order shall be in full force and effect and shall not have been stayed, vacated, reversed or rescinded, and any appeal of such order shall not have been timely filed and a stay of such order pending appeal shall not be presently effective, and without the Agent’s prior written consent, the DIP Order shall not have been revised, amended or modified.

 

(f) Material Adverse Effect. Other than the commencement of the Chapter 11 Case, no Material Adverse Effect shall have occurred since the Closing Date.

 

(g) Milestones. If the Loan being requested is an Additional DIP Loan, then all applicable milestones arising prior to the date of such Loan request as set forth in Schedule 4.02(g) (the “Milestones”) shall have been completed by the dates for completion set forth therein to the satisfaction of the Agent; and the Borrower shall have certified to such completion in the applicable Borrowing Request.

 

(h) Approved Budget. The Borrower shall apply the proceeds of each Borrowing solely to payment of amounts reflected in the Approved Budget (subject to variances allowed by Section 7.22); and the Borrower shall have certified to such compliance in each Borrowing Request.

 

(i) Restructuring Support Agreement. The Restructuring Support Agreement shall remain in full force and effect, with no modifications thereto, other than modifications that the Agent has approved in writing; no breaches or defaults shall have occurred under such Restructuring Support Agreement; and all applicable actions or transactions described in such Restructuring Support Agreement to be completed by a particular date shall have been so completed to the satisfaction of the Agent.

 

(j) Additional Documents and Information. The Borrower shall have delivered to the Agent and the Lenders such additional documents, certifications and information as the Agent may reasonably request.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) From the Petition Date to and including the Closing Date, there has been no Disposition by the Borrower, or any Involuntary Disposition, of any material part of the business or property of the Borrower, and no purchase or other acquisition by it of any business or property (including any Equity Interests of any other Person) material to the Borrower, in each case, that has not been disclosed in writing to the Agent and the Lenders on or prior to the Closing Date.

 

(b) Since June 30, 2020, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect, other than the filing, commencement and continuation of the Chapter 11 Case and the events that customarily result from filing, commencement and continuation of the Chapter 11 Case (including any litigation resulting therefrom).

 

 

 

 

(a) Except as set forth in Schedule 5.07, the Borrower has not received any written notice, report or other information regarding any material violation or alleged material violation of Environmental Laws with regard to the Borrower, its Business, or its past or present properties or facilities.

 

(b) The Borrower, its Business, and its past and present properties and facilities are and have been in compliance, in all material respects, with all applicable Environmental Law.

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) The Chapter 11 Case was commenced on the Petition Date in accordance with applicable law and proper notice thereof and the proper notice for (x) the motion seeking approval of the Loan Documents and the Interim Order and the Final Order, (y) the hearing for the approval of the Interim Order and (z) the hearing for the approval of the Final Order will be given. The Borrower shall give on a timely basis as specified in the Interim Order or the Final Order, as applicable, all notices required to be given to all parties specified in the Interim Order or the Final Order, as applicable.

 

(b)  After the entry of the Interim Order, and pursuant to and to the extent permitted in the Interim Order and the Final Order, as applicable, the Obligations will constitute allowed Superpriority Claims in the Chapter 11 Case having priority over all administrative expense claims and unsecured claims against the Borrower now existing or hereafter arising, of any kind whatsoever, including, without limitation, all administrative expense claims of the kind specified in sections 326, 330, 331, 503(b), 507(a), 507(b), 726, or any other provision of the Bankruptcy Code or otherwise, as provided under section 364(c)(1) of the Bankruptcy Code, subject, as to priority only, to the Carve-Out.

 

(c) The DIP Order is in full force and effect and has not been reversed, stayed, modified or amended without the Agent’s consent.

 

(d) The Approved Budget and all projected consolidated balance sheets, income statements and cash flow statements of the Borrower delivered to the Agent and the Lenders were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed in good faith by the Borrower to be reasonable in light of the conditions existing at the time of delivery of such report or projections (it being understood that any projections or estimates made in the items described in this subsection (d) are not to be viewed as facts and are subject to significant uncertainties and contingencies, that no assurance can be given that any such projections or estimates will be realized, that actual results may differ from projected results and such differences may be material).

 

 

 

 

 

 

(a) promptly after any reasonable request from the Agent, information regarding the business, financial or corporate affairs of the Borrower or compliance with the terms of the Loan Documents;

 

(b) promptly after any reasonable request by the Agent, copies of any detailed audit reports, management letters or recommendations submitted to the Board of Directors or equivalent governing body (or the audit committee of the Board of Directors or equivalent governing body) of the Borrower by independent accountants in connection with the accounts or books of the Borrower, or any audit of any of them, in each case, subject to applicable legal privilege and confidentiality requirements;

 

 

(c) no less than weekly, (i) on or before 12:00 p.m. time on the third Business Day of each week (which deadline may be extended with the prior written consent of the Agent) an updated thirteen-week cash flow forecast for the succeeding thirteen-week period, which, upon approval by the Agent in its sole discretion, shall become the Approved Budget, and (ii) on or before 12:00 p.m. on the third Business Day following the end of each week (with the first such delivery date being November 27, 2020) (which deadline may be extended with the prior written consent of the Agent), a Variance Report, in form satisfactory to the Agent, together with a certificate from the chief financial officer of the Borrower as to the compliance with the requirements under Section 6.15; and

 

(d) copies of all monthly reports, projections, or other information respecting the Borrower’s business or financial condition as well as all pleadings, motions, applications and judicial information filed by or on behalf of the Borrower with the Bankruptcy Court, or any monitor or interim receiver, if any, appointed in the Chapter 11 Case, or the Committee, at the time such document is so filed.

 

 

 

 

(a) Within one (1) Business Day, notify the Agent and the Lenders of the occurrence of any Default or Event of Default.

 

(b) Within three (3) Business Days, notify the Agent and the Lenders of any material change in accounting policies or financial reporting practices by the Borrower.

 

(c) Within three (3) Business Days of receipt thereof, provide the Agent and the Lenders with copies of any material adverse reports or notices received from any Governmental Authority.

 

(d) Within one (1) Business Day of receipt thereof, provide the Agent and the Lenders with a copy of any notice of default given or received by the Borrower under any Organization Document or the Restructuring Support Agreement.

 

(e) Promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower, or compliance with the terms of any Loan Document or the Restructuring Support Agreement, as the Agent may reasonably request.

 

 

 

(a) Payment of Obligations. Except to the extent expressly prohibited by any Loan Document and consistent with the Approved Budget, pay and discharge, in the ordinary course of business, all of its obligations and liabilities, including (a) all Taxes upon it or its properties or assets, or with respect to which the Borrower has a withholding obligation, unless the same are being contested in good faith by appropriate proceedings diligently conducted, adequate reserves in accordance with GAAP are being maintained by the Borrower; (b) all lawful claims which, if unpaid, would by Law become a Lien upon its property not permitted by this Agreement; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness and any grace periods or extensions applicable thereto.

 

(b) Filing of Returns. Timely file all federal, state, local and other Tax returns required to be filed by or with respect to it or its properties or assets, such returns to be correct in all material respects.

 

 

(a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization.

 

(b) Preserve, renew and maintain in full force and effect its good standing under the Laws of the jurisdiction of its organization.

 

(c) Maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business.

 

 

 

 

(a) Maintain, preserve and protect all of its material properties and equipment necessary or useful in the operation of its business in good working order and condition, ordinary wear and tear excepted, except in a transaction that constitutes a Permitted Disposition.

 

(b) Make all necessary repairs thereto and renewals and replacements thereof.

 

 

(a) Maintain in full force and effect all policies of insurance of any kind with respect to the property and business of the Borrower with financially sound and reputable insurance companies that are not Affiliates of the Borrower, in each instance, providing such coverages, in such amounts and with such deductibles as are customarily carried by prudent companies of similar size engaged in similar businesses and owning similar properties in localities where the Borrower operates. (a) To the extent applicable, the Agent shall be named as loss payee or mortgagee, as its interest may appear, and/or additional insured with respect to any such insurance, (b) such insurance shall provide that no cancellation, amendment or termination of coverage shall be effective until after 30 days’ notice thereof to the Agent, (c) such insurance shall provide that (i) after the occurrence and during the continuance of an Event of Default, all proceeds thereunder shall be payable to Agent and (ii) no such insurance shall be affected by any act or neglect of the insured or owner of the property described in such policy and (d) the Borrower hereby agrees that it shall provide the Agent and the Lenders with at least ten (10) days’ prior written notice before any such policy or policies shall be renewed.

 

(b) The Agent is hereby authorized to adjust and compromise claims under insurance coverage referred to in this Section 6.06 after the occurrence and during the continuance of an Event of Default. All loss recoveries received by the Agent under any such insurance may be applied to the Obligations in such order as set forth in Section 8.04 hereof. Any surplus shall be paid by the Agent to the Borrower or applied as may be otherwise required by law. So long as no Event of Default has occurred and is continuing, the Borrower shall have the right to adjust and compromise all claims under insurance coverage and to receive the proceeds of such insurance, subject to the requirements of Article II of this Agreement. If the Borrower fails to obtain insurance as hereinabove provided, or to keep the same in force, the Agent, if the Agent so elects, may obtain such insurance and pay the premium therefor on behalf of the Borrower, which payment shall constitute part of the Obligations and shall be required to be paid by the Borrower to the Lenders.

 

 

(a) Comply, in all material respects, with the requirements of all applicable Laws and all Permits, orders, writs, injunctions and decrees applicable to it or to its business or property; provided that the existence of the matters disclosed on Schedule 5.11 shall not constitute a breach of the foregoing covenant.

 

(b) Maintain in effect policies and procedures designed to promote and ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents, with this Section 6.07, and with Anti-Corruption Laws, Anti-Money Laundering Laws and regulations, the Patriot Act, and Sanctions.

 

 

(a) Maintain books of record and account, in which full, true and correct entries in all material respects in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower.

 

(b) Maintain such books of record and account in conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) Liens existing on the Closing Date and listed on Schedule 7.01;

 

(b) normal and customary rights of setoff arising as a matter of Law upon deposits of cash in favor of banks or other depository institutions;

 

(c) Liens for Taxes not yet due or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the Borrower in accordance with GAAP; and

 

(d) statutory or common law Liens arising in connection with landlords, carriers, warehousemen, mechanics, suppliers, materialmen or repairmen and other similarly situated Persons imposed by applicable law that, in each case, arise in the ordinary course of business and which secure amounts not overdue for a period of more than thirty (30) days.

 

 

 

 

(a) Investments held by the Borrower in the form of cash or cash equivalents;

 

(b) Investments existing on the Closing Date and listed on Schedule 7.02; and

 

(c) Investments received in settlement of amounts due to the Borrower effected in the ordinary course of business or owing to the Borrower as a result of insolvency proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of the Borrower.

 

 

 

(a) Indebtedness under the Loan Documents;

 

(b) Indebtedness existing on the Closing Date and listed on Schedule 7.03;

 

(c) unsecured Indebtedness incurred in respect of netting services, overdraft protection and other like services, in each case, incurred in the ordinary course of business; and

 

(d) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices.

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) Amend any document, agreement or instrument evidencing any Indebtedness, other than amendments or modifications that are not adverse to the Lenders or the Agent and that do not affect the subordination or payment provisions thereof (if any) in a manner adverse to the Lenders or the Agent (and provided that such Indebtedness remains permitted under Section 7.03 after giving effect to such amendment); or

 

(b) Amend, modify, change, or allow the termination of any Material Contract without the Agent’s prior written consent, other than terminations resulting from the Chapter 11 Case.

 

 

(a) Amend, modify or change its Organization Documents without the Agent’s prior written consent.

 

(b) Change its Fiscal Year without the Agent’s prior written consent.

 

(c) Change its name, jurisdiction of formation or type of entity without the Agent’s prior written consent.

 

 

 

 

 

 

 

 

(a) Permit any Loan or the proceeds of any Loan, directly or indirectly, to be used, lent, contributed or otherwise made available (i) to any Sanctioned Person or in any Sanctioned Country, (ii) to fund any activity or business of any Sanctioned Person or in any Sanctioned Country; or (iii) in any other manner that will result in any violation by any Person (including the Agent or any Lender) of any Sanctions.

 

(b) Not fund all or part of any payment under this Agreement out of proceeds or property of a Sanctioned Person or that is directly or indirectly derived from transactions which would cause a violation by any Person (including the Agent or any Lender) of any Sanctions.

 

 

 

 

 

 

 

 

 

(a) File an application for approval of any Superpriority Claim or Lien in the Chapter 11 Case that is pari passu with or senior to the Obligations, without the express prior written consent of the Agent.

 

(b) Commence any adversary proceeding, contested matter or other action asserting any claims or defenses or otherwise against the Agent or any Lender with respect to this Agreement, the other Loan Documents, the transactions contemplated hereby or thereby, the other documents or agreements executed or delivered in connection therewith or the transactions contemplated thereby.

 

(c) The Borrower shall not make (i) any prepetition “critical vendor” payments or other payments on account of any creditor’s prepetition unsecured claim, (ii) payments on account of claims or expenses arising under section 503(b)(9) of the Bankruptcy Code or (iii) payments under any management incentive plan or on account of claims or expenses arising under section 503(c) of the Bankruptcy Code, except in each case in amounts and on terms and conditions that (x) are approved by order of the Bankruptcy Court after notice and a hearing and (y) are expressly permitted by the terms of the Loan Documents and within the limits of the Approved Budget.

 

 

 

 

 

 

 

 

 

 

(a) Non-Payment. Borrower fails to pay (i) when and as required to be paid herein, any amount of principal of any Loans, (ii) when and as required to be paid herein, any interest on any Loans, premium or any fee due hereunder or (iii) within three (3) Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or

 

(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 6.02, 6.04, 6.07, 6.09, 6.10, 6.13, 6.14, or Article VII; or

 

 

(c) Other Defaults. The Borrower fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b)) contained in any Loan Document on its part to be performed or observed and such failure continues for fifteen (15) days after the earlier to occur of (i) the Borrower or any Responsible Officer thereof becoming aware of such failure or (ii) the Borrower receiving written notice thereof; or

 

(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made (other than those representations, warranties and certifications that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations, warranties and certifications shall be incorrect or misleading in any respect when made or deemed made); or

 

(e) Cross-Default. (i) The Borrower, except to the extent the payment obligation is stayed or otherwise not required by virtue of the Chapter 11 Case, (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or such Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity or (ii) any default shall occur under the Restructuring Support Agreement; or

 

(f) Insolvency Proceedings. Other than the Chapter 11 Case, the Borrower institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of the Borrower and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to the Borrower or to all or any material part of its property is instituted without the consent of the Borrower and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or

 

(g) Judgments. There is entered against the Borrower (i) one or more final judgments or orders for the payment of money in an aggregate amount exceeding $50,000 (to the extent not covered (subject to normal deductibles) by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order and such proceedings remain unstayed or undismissed for a period of thirty (30) consecutive days, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

 

(h) Milestones. A Milestone is not met as of the applicable deadline specified on Schedule 4.02(g), unless expressly extended or waived in writing by the Agent; or

 

(i) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Borrower contests in any manner the validity or enforceability of any Loan Document; or the Borrower denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or

 

(j) Chapter 11 Case. There shall have occurred any of the following in the Chapter 11 Case:

 

(i) An order shall be entered by the Bankruptcy Court appointing, or Debtor shall file an application for an order seeking the appointment of, (a) a trustee under Section 1104 of the Bankruptcy Code, or (b) an examiner or other responsible person or officer with enlarged powers relating to the operation of the business (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code;

 

 

(ii) An order with respect shall be entered by the Bankruptcy Court converting any Chapter 11 Case to a chapter 7 case;

 

(iii) (a) An order shall be entered by the Bankruptcy Court confirming a plan of reorganization or liquidation which does not contain a provision for termination of the commitments and indefeasible payment in full in cash of all Obligations on or before the effective date of such plan or plans upon entry thereof or (b) the Debtor shall propose a plan of reorganization or liquidation that is not consistent with the restructuring contemplated by the Restructuring Support Agreement;

 

(iv) An order shall be entered by the Bankruptcy Court dismissing the Chapter 11 Case which does not contain a provision for termination of the commitments hereunder and payment in full in cash of all Obligations upon entry thereof;

 

(v) An order shall be entered by the Bankruptcy Court without the express prior written consent of the Agent (a) to revoke, reverse, stay, modify, supplement or amend any of the orders of the Bankruptcy Court, (b) to permit any administrative expense or any claim (now existing or hereafter arising, of any kind or nature whatsoever) to have administrative priority as to the Debtor equal or superior to the priority of the Agent in respect of the Obligations, except for certain allowed administrative expenses, or (c) to grant or permit the grant of a Lien on the assets of the Borrower, other than a Permitted Lien;

 

(vi) An application for (a) any of the orders regarding the appointment of a trustee, conversion to Chapter 7 or dismissal of the Chapter 11 shall be made (i) by a Person other than Debtor and such application is not contested by Debtor in good faith or (ii) by Debtor, (b) an order for the use of cash collateral without the prior written consent of the Agent is made, or (c) an order for the use of any of the Debtor’s assets (or the obtaining of financing or loans, secured by liens) without the prior written consent of the Agent is made; or

 

(k) Material Adverse Effect. Any Material Adverse Effect occurs and is continuing.

 

 

 

(a) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, premiums, fees and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and

 

(b) declare the Additional DIP Commitments terminated, whereupon the Additional DIP Commitments shall immediately be terminated;

 

(c) terminate this Agreement and the other Loan Documents as to any future liability or obligation of the Borrower, but without affecting the Obligations; and

 

(d) after providing three (3) Business Days’ notice to counsel to the Borrower, the Bankruptcy Court, and the Committee (if any) of the occurrence of the Event of Default, during which period the Borrower may attempt to cure such Event of Default if feasible, (the “Notice and Cure Period”), exercise all rights and remedies available to it under the Loan Documents, or under applicable Law or equity.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) Notices Generally. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier to the address, telecopier number or electronic mail address specified for such Person on Schedule 9.02. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).

 

(b) Electronic Communications. Notices and other communications to the Agent or the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail) pursuant to procedures approved by the Agent or the applicable Lender; provided that the foregoing shall not apply if Agent or any applicable Lender has notified the Borrower that it does not wish to receive notices by electronic communication. 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. 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); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

 

(c) Change of Address, Etc. The Borrower, the Agent and each Lender may change its address, telecopier number or electronic mail address for notices and other communications hereunder by notice to the other parties hereto.

 

(d) Reliance by Lender. The Agent and each Lender shall be entitled to rely and act upon any notices (including telephonic notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Agent, each Lender and their respective Related Parties from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower, except for such losses caused by the applicable indemnified party’s gross negligence or willful misconduct.

 

 

 

 

 

(a) Costs and Expenses. The Borrower shall pay (in the manner contemplated by the last sentence of this subsection (a)), whether accrued or incurred prior to, on or after the Petition Date, (i) all out-of-pocket expenses (including, without limitation, reasonable fees, disbursements and other charges of outside counsel, local counsel and financial advisors (collectively, the “DIP Professionals”) and all persons not regularly in its employ) incurred by the Agent or any Lender in connection with this Agreement, the transactions contemplated hereby and the Chapter 11 Case, and (ii) all out-of-pocket expenses (including, without limitation, fees, disbursements and other charges of counsel) of the Agent or any Lender for enforcement costs and documentary taxes associated with this Agreement, the transactions contemplated hereby, and the Chapter 11 Case. Such costs and expenses shall be added and capitalized to the outstanding principal balance of the Loans.

 

(b) Indemnification by the Borrower. The Borrower shall indemnify and defend the Agent, each Lender, and their respective Related Parties (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of outside counsel for the Indemnitees, including local counsel, as applicable, in any relevant jurisdiction and any specialty counsel, as applicable, for each relevant specialty and, in the case of actual or potential conflict of interest (as determined by such Indemnitee), separate counsel for Indemnitees to the extent needed to avoid such conflict), incurred by any Indemnitee or asserted against any Indemnitee arising out of, in connection with, or as a result of, (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or the administration of this Agreement and the other Loan Documents; (ii) any Loan or the use or proposed use of the proceeds therefrom; (iii) any environmental matters related in any way to the Borrower or its facilities and/or properties; or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Notwithstanding anything to the contrary contained in any Loan Documents, any rights to reimbursement or indemnification of the Agent or any Lender, as an Indemnitee, under any Loan Documents shall only apply to expenses, losses, claims, damages and liabilities incurred or arising out of any such Indemnitee’s status as a debt financing provider (or agent for debt financing providers) to the Borrower (and not as an equity holder of the Borrower).

 

(c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Borrower shall not assert, and the Borrower hereby waives, any claim against the Agent, any Lender or any of their respective Related Parties 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. The Agent, each Lender and their respective Related Parties shall not 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.

 

(d) Payments. All amounts due under this Section shall be payable not later than five (5) Business Days after demand therefor.

 

(e) Survival. The agreements in this Section 9.04 shall survive the resignation or replacement of the Agent or any Lender and the repayment, satisfaction or discharge of all the Obligations.

 

 

 

 

 

(a) Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent of the Agent, and the Agent and each Lender may not assign or otherwise transfer any of its rights or obligations hereunder except in accordance with the provisions of Section 9.06(b) (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 and, to the extent expressly contemplated hereby, the Related Parties of the Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b) Assignments by Agent and Lenders. The Agent or any Lender may at any time assign all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of the Loans); provided that (i) unless an Event of Default exists or such assignment is to an Affiliate of the Agent or such Lender, as applicable, the Borrower’s prior written consent (not to be unreasonably withheld, conditioned or delayed) shall be required for such assignment and (ii) any assignment by a Lender must be approved in writing by the Agent. Subject to recording thereof by the Agent pursuant to clause (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of the assignor under this Agreement to the extent of the interest assigned, and the assignor thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the Agent’s or an assigning Lender’s rights and obligations under this Agreement, the Agent or Lender, as applicable, shall cease to be a party hereto and the assignee shall become the “Agent” or a “Lender”, as applicable, hereunder) but shall continue to be entitled to the benefits of Sections 3.01, 3.02, and 9.04 (and in the case of the Agent, any indemnifications of the Agent) with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations.

 

(c) Register. The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of any assignees and the DIP Commitments of, and principal amounts of (and stated interest on) the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error. The Register shall be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice.

 

(d) Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption 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 and any state laws based on the Uniform Electronic Transactions Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF COLORADO, WITHOUT REGARD TO ANY CHOICE-OF-LAW PROVISIONS THAT WOULD REQUIRE THE APPLICATION OF LAW OF ANOTHER JURISDICTION AND, TO THE EXTENT APPLICABLE, THE BANKRUPTCY CODE.

 

(b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO (I) THE NONEXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT AND (II) THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS SITTING IN COLORADO, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

 

 

 

 

 

 

 

 

 

 

 

	GENERAL MOLY INC.
	By:	/s/ Thomas M. Kim
		Name: Thomas M. Kim
		Title: Chief Restructuring Officer

 

 

 

NEW MOLY LLC
By:	/s/ Mason Hills
	Name: Mason Hills
	Title: Manager

 

 

NEW MOLY LLC
By:	/s/ Mason Hills
	Name: Mason Hills
	Title: Manager

 

 

 

 

 

Description	Name of Insurance Company	Term	Months remaining
Employment Practices Liability	AIG	10/1/2020 - 02/01/2021	3
Employee Benefit Plan Fiduciary Liability	AIG	10/1/2020 - 02/01/2021	3
Primary Broad Form Management Liability - D&O $5M	AIG	10/1/2020 - 02/01/2021*	3
Excess D&O $5M x $5M	AIG	10/1/2020 - 02/01/2021*	3
Extended Reporting Period - Primary D&O $5m	AIG	3 years
Extended Reporting Period - Excess D&O $5m x $5m	AIG	3 years
Crime Insurance Policy	Beazley	10/1/2020 - 02/01/2021	3
Commercial General Liability	Chubb Group of Federal Insurance Company	01/01/2020 - 01/01/2021	1
Commercial Umbrella	Chubb Group of Federal Insurance Company	01/01/2020 - 01/01/2021	1
Workers Compensation	Chubb Group of Federal Insurance Company	01/01/2020 - 01/01/2021	1
Non-Marine Property	Bowring Marsh	01/01/2020 - 01/01/2021	1

 

 

 

 

 

	GENERAL MOLY INC.
	By:
		Name:
		Its: