Borrower represents and warrants the following to Lender and Ex-Im Bank, as of the Effective Date, as of the date each Credit Accommodation is made or incurred hereunder, as of the date of any Extension or any other renewal, extension or modification of the Loan, and at all times any of Borrower’s Obligations are outstanding, and it is the affirmative obligation of Borrower to notify Lender in writing promptly, but in any event within five (5) Business Days, of any occurrence, circumstance or fact which would affect its ability to make the representations and warranties contained herein:
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Section 5.1Organization. Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where the failure to be so qualified could reasonably be expected to result in a Material Adverse Effect.
Section 5.2Authorization.The execution, delivery, and performance of this Agreement and all other Financing Documents to which Borrower is a party have been duly authorized by all necessary action by Borrower; do not require the consent or approval of any other Person; and do not conflict with, result in a violation of, or constitute a default under (a) any provision of its certificate or articles of incorporation or organization, or bylaws, or partnership, limited liability or operating agreement, or (b) any other agreement or instrument binding upon Borrower, the violation or default under which could reasonably be expected to have a Material Adverse Effect, or (c) any law, governmental regulation, court decree, or order applicable to Borrower. Borrower has all requisite power and authority to execute and deliver this Agreement and all other Financing Documents to which Borrower is a party.
Section 5.3Financial Information. Each financial statement of Borrower supplied to Lender presents fairly in all material respects the financial position and results of operations and cash flows of Borrower and its consolidated subsidiaries as of the date of the statement and in accordance with GAAP (subject to year-end audit adjustments and the absence of footnotes in non-annual financial statements), and there has been no change in Borrower’s financial condition subsequent to the date of the most recent financial statement supplied to Lender, which has had or could reasonably be expected to have a Material Adverse Effect. Borrower has no material contingent obligations except as disclosed in such financial statements.
Section 5.4Legal Effect. This Agreement and all other Financing Documents to which Borrower is a party constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
Section 5.5Properties. Borrower is the owner of, and has good title to, all of Borrower’s owned properties free and clear of all security interests except for liens and security interests permitted under the Section 6.02 of the Domestic Credit Agreement, and has not executed any security documents or financing statements relating to such properties. Title to all of Borrower’s properties are in Borrower’s legal name, and Borrower has not used, or filed a UCC financing statement under, any other name, except for those indicated in the charter documents provided to the Lender, for at least the last six (6) years.
Section 5.6Compliance. Except as disclosed to and acknowledged by Lender in writing, (a) Borrower is conducting Borrower’s businesses in material compliance with all applicable federal, state and local laws, statutes, ordinances, rules, regulations, orders, determinations and court decisions, including, without limitation, those pertaining to health or environmental matters, and (b) Borrower otherwise does not have any contingent liability in connection with the release into the environment, disposal or the improper storage of any toxic or hazardous substance or solid waste, in each case, which has had or could reasonably be expected to have a Material Adverse Effect.
Section 5.7Licenses. All necessary licenses, permits and authorizations required for the exporting of the Export-Related Inventory and Export-Related Overseas Inventory have been or will be timely obtained by Borrower, and to the best of Borrower’s knowledge, all required necessary licenses, permits and authorizations have been or will be timely obtained by each importer.
Section 5.8Performance. Borrower has an operating history of at least one year. Borrower has sufficient financial resources with which to perform its Export Orders and to pay any costs of completing its Export Orders which are not paid from the proceeds of the Loan.
Section 5.9Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Borrower is pending or, to the Borrower’s knowledge, threatened, and no other event has occurred which has had or could reasonably be expected to have a Material Adverse Effect other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Lender in writing. Lender acknowledges that certain litigation has been disclosed pursuant to the Domestic Credit Agreement.
Section 5.10Taxes. All federal income and other material tax returns and reports of Borrower that are or were required to be filed have been filed in a timely manner, and all taxes, assessments and other governmental charges have been paid in full, except those which are presently being or to be contested by Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided.
Section 5.11Lien Priority. Unless otherwise previously disclosed to and approved by Lender in writing, Borrower has not entered into any security agreements, granted a Lien or permitted the filing or attachment of any Lien (other than Permitted Liens) on or affecting any of the Collateral, except in favor of Lender or as permitted under Section 6.02 of the Domestic Credit Agreement.
Section 5.12Use of Proceeds. Borrower shall not use any Loan proceeds for the purchasing or carrying of “margin stock” as defined in Regulation U issued by the Board of Governors of the Federal Reserve System.
Section 5.13Employee Benefit Plans. Each employee benefit plan as to which Borrower may have any liability complies in all material respects with all applicable requirements of law and regulations, and no Reportable Event nor Prohibited Transaction (as defined in ERISA) has occurred with respect to any such plan that could reasonably be expected to result in a Material Adverse Effect.
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Section 5.14Location of Borrower’s Offices and Records. Borrower’s place of business, or Borrower’s chief executive office if Borrower has more than one place of business, is located at the address for notices to Borrower set forth in Section 9.3. Unless Borrower has notified Lender and Lender has acknowledged in writing to the contrary, said address is also the location of Borrower’s books and records concerning the Collateral.
Section 5.15Information. All information heretofore or contemporaneously herewith furnished by Borrower to Lender for the purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all information hereafter furnished by or on behalf of Borrower to Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified; and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading in light of the circumstances;provided that, with respect to projected financial information, Borrower represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered.
Section 5.16Export-Related Accounts Receivable. (a) All Export-Related Accounts Receivable and Export-Related Overseas Accounts Receivable represented by Borrower in an Export-Related Borrowing Base Certificate to constitute Eligible Export-Related Accounts Receivable and Eligible Export-Related Overseas Accounts Receivable satisfy all relevant eligibility criteria as of the date of such Export-Related Borrowing Base Certificate (subject to the discretion of the Lender and Ex-Im Bank); (b) all Export-Related Receivables and Export-Related Overseas Accounts Receivable information contained in Export-Related Borrowing Base Certificates and related reports delivered to Lender will be true and correct as of the date of such Export-Related Borrowing Base Certificate, subject to immaterial variance; and (c) Lender shall have the right at any time during normal business hours and at Borrower’s expense to confirm with Buyers the accuracy of such Export-Related Accounts Receivable and Export-Related Overseas Accounts Receivable information.
Section 5.17Export-Related Inventory and Other Assets. (a) All Export-Related Inventory and Export-Related Overseas Inventory represented by Borrower in an Export-Related Borrowing Base Certificate to constitute Eligible Export-Related Inventory and Eligible Export-Related Overseas Inventory satisfies all relevant eligibility criteria as of the date of such Export-Related Borrowing Base Certificate (subject to the discretion of the Lender and Ex-Im Bank); (b) all information regarding Export-Related Inventory and Export-Related Overseas Inventory and Other Assets (if any) contained in Export-Related Borrowing Base Certificates and related schedules delivered to Lender will be true and correct as of the date of such Export-Related Borrowing Base Certificate, subject to immaterial variance; (c) the Export-Related Inventory Value, Export-Related Overseas Inventory Value and the Other Assets Value (if any) will be determined in the manner set forth in their respective definition in the Borrower Agreement; (d) except as agreed to the contrary by Lender in writing, all Eligible Export-Related Inventory and Eligible Export-Related Overseas Inventory and Other Assets are now and at all times hereafter will be in Borrower’s physical possession; (e) all Eligible Export-Related Inventory and Eligible Export-Related Overseas Inventory are now and at all times hereafter will be of good and merchantable quality, free from defects; (f) no Eligible Export-Related Inventory or Eligible Export-Related Overseas Inventory is now and none at any time hereafter will be stored with a processor, bailee, warehouseman, or similar party without Lender’s prior written consent; and (g) Lender and Ex-Im Bank shall have the right at any time during normal business hours and at Borrower’s expense to check and test Export-Related Inventory and Export-Related Overseas Inventory and Other Assets (if any) as to quality, value, and condition.
Section 5.18Holdings. Holdings and, in the case of United Solar Ovonic LLC, United Solar Ovonic Corporation, is/are the only Person(s) owning or otherwise controlling more than 20% of the voting share capital (or equivalent right of ownership) of Borrower, or having the power to direct Borrower’s policies and/or management whether by contract or otherwise.
Borrower understands and agrees that Lender, without independent investigation, is relying upon the above representations and warranties in extending the Loan to Borrower. Borrower further agrees that the foregoing representations and warranties shall be continuing in nature and shall remain in full force and effect as long as any of Borrower’s Obligations remain outstanding. Borrower shall promptly notify Lender and Ex-Im Bank in writing of any facts which would materially and adversely affect its ability to make any of the above representations and warranties.
ARTICLE VIAFFIRMATIVE
COVENANTS
Borrower covenants and agrees with Lender that, while this Agreement is in effect and until all of Borrower’s Obligations are fully paid and performed, Borrower shall:
Section 6.1Financial Records. To the extent not otherwise required under the Domestic Credit Agreement, furnish to Lender the financial statements of Borrower and each Guarantor deliverable pursuant to the Fast Track Loan Authorization Agreement by the dates set forth therein.
Section 6.2 Inspections.Permit the Lender or its designee to inspect and copy the Borrower’s business records, to discuss Borrower’s business, operations, and financial condition with Borrower’s officers, employees and accountants, to perform audits, appraisals or other inspections of any Collateral including records and documents pertaining to Collateral, and to inspect the Borrower’s business operations and sites, as frequently as may be required by Ex-Im Bank and more frequently as may be required by Lender, at such times and at such intervals as the Lender may require. In this connection, Borrower acknowledges that Lender is required by Ex-Im Bank to perform (or contract to perform) an inspection and audit of Borrower and the Collateral but in no event less than every six months;provided,however, that with respect to field audits, notwithstanding the foregoing or
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anything to the contrary set forth in any Financing Document, the Lender shall conduct, in total (inclusive of field audits conducted pursuant to the Domestic Credit Agreement), no more than two (2) such field audits per calendar year unless the Aggregate Liquidity shall at any time fall below $15,000,000, in which case the Lender may conduct up to three (3) such field audits in total in a calendar year; andprovided,further, that if an Event of Default shall have occurred and is continuing, there shall be no limitation on the number of field audits the Lender may conduct in any calendar year. An inspection and/or audit shall address, without limitation, the matters set forth in Section 6 of the Fast Track Borrower Agreement Supplement modifying Section 2.12 (b) of the Borrower Agreement. After receiving Lender’s invoice(s) thereof, the Borrower shall promptly compensate the Lender for all costs and expenses associated with any inspections and/or audits (including in-house costs and expenses charged within the Lender for such inspections and audits).
Section 6.3Performance. Borrower shall perform and comply with all terms, conditions, and provisions set forth in this Agreement and in the other Financing Documents in a timely manner, and promptly notify Lender (including, without limitation, providing such notice of events as is required pursuant to the Borrower Agreement) of the occurrence of any event which constitutes or may constitute an Event of Default under this Agreement or a default under any of the other Financing Documents. Borrower shall perform and comply with all terms in all Export Orders (including, without limitation, the delivery of the goods required thereby free and clear of defects and prior to the deadline specified therein) in the ordinary course of business and consistent with past practices, and promptly notify Lender of any event which constitutes or may constitute a default under any of the material Export Orders. Borrower shall, in the ordinary course of business and consistent with past practice, take all actions necessary to entitle Borrower to receive any payments due under all Export Orders, including, without limitation, the timely drawing of drafts under any letters of credit issued for the benefit of Borrower in connection therewith and the timely presentation of any claims under any insurance policy issued by, or financing guaranteed by, Ex-Im Bank or any other insurer or guarantor.
Section 6.4Export-Related Borrowing Base Certificates, etc. Borrower shall deliver to Lender Export-Related Borrowing Base Certificates, Export Orders, written summaries of Export Orders, Inventory Schedules, Accounts Receivable Aging Reports, and other information, reports, contracts, invoices and other data concerning the Collateral, in accordance with Sections 2.04 and 2.05 of the Borrower Agreement, as modified by the Fast Track Borrower Agreement Supplement, including as may be instructed or requested by Lender from time to time;provided,however, that, in the event that, subsequent to the Effective Date, the Ex-Im Bank shall have issued a waiver of Sections 2.04 and 2.05 of the Borrower Agreement, as modified by the Fast Track Borrower Agreement Supplement, then notwithstanding Sections 2.04 and 2.05 of the Borrower Agreement, as modified by the Fast Track Borrower Agreement Supplement, or anything to the contrary set forth in any other Financing Document, the Borrower shall deliver to Lender, as soon as available but in any event within 20 days after the end of each calendar month, and at such other times as may be requested by the Lender, as of the period then ended, an Export-Related Borrowing Base Certificate and supporting information in connection therewith, together with any additional reports with respect to the Export-Related Borrowing Base as the Lender may request; andprovidedfurther, that in the event that the unpaid principal balance of the Loan and LC Exposure are each $0 as of the end of a calendar month, then Borrowers shall be required to deliver a Borrowing Base Certificate (and supporting information in connection therewith, together with any additional reports with respect to the Export-Related Borrowing Base as the Lender may reasonably request) to the Lender as soon as available but in any event within 30 days of the end of such calendar month; andprovidedfurther, that, if the foregoing proviso shall be applicable with respect to any calendar month, in the event that Borrowers shall request an Advance on or after the 20th day occurring after the end of such calendar month, then the Borrowers shall deliver an Export-Related Borrowing Base Certificate (and supporting information in connection therewith, together with any additional reports with respect to the Export-Related Borrowing Base as the Lender may reasonably request) to the Lender simultaneously with such request for an Advance; andprovided,further, that in the event that the Aggregate Liquidity shall at any time fall below $15,000,000 and shall remain below $15,000,000 for a period of sixty (60) days, then, after the expiration of such sixty (60) day period, the Borrower shall be required to deliver to Lender Export-Related Borrowing Base Certificates and such supporting information and additional reports as soon as available but in any event within 3 Business Days after the end of each calendar week, and at such other times as may be requested by the Lender, as of the period then ended.
Section 6.5Domestic Credit Agreement. Perform and observe all of the covenants set forth in the “Affirmative Covenants” and “Negative Covenants” sections of the Domestic Credit Agreement (all of such covenants, together with all defined terms from the Domestic Credit Agreement used in such covenants, being collectively referred to as the “Incorporated Covenants”), all of which Incorporated Covenants are hereby incorporated by reference herein;provided,however, that if the Domestic Credit Agreement ceases to be valid and enforceable due to the satisfaction of all indebtedness and the expiration of all commitments governed thereby, Borrower shall continue to perform and observe all of the Incorporated Covenants as set forth in the Domestic Credit Agreement as it existed immediately before it ceased to be valid and enforceable. If there is any conflict between or among any Incorporated Covenants, the covenants and agreements of this Agreement, or the covenants and agreements of the Borrower Agreement and the Fast Track Borrower Agreement Supplement, the most stringent provision with respect to Borrower and/or Guarantor shall prevail and be controlling.
ARTICLE VII
DEFAULT/REMEDIES
Section 7.1 Events of Default. Each of the following shall constitute an Event of Default under thisAgreement:
| (a) | Failure of Borrower to make any payment when due on any of Borrower’s Obligations, including without limitation, any mandatory prepayments of Borrower’s Obligations from the Proceeds of or comprising Export-Related Accounts Receivable and Export-Related Inventory; |
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| (b) | Failure of Borrower or any Guarantor to comply with or to perform when due any other term, obligation, covenant or condition contained in this Agreement, the Borrower Agreement or in any other Financing Document (other than those which constitute a default under another subsection of this Section 7.1) and such failure shall continue unremedied (i) beyond any period of grace therein provided (and in the case of the Incorporated Covenants, the grace periods, if any, shall be the same as those provided in the Domestic Credit Agreement) or (ii) if no grace period is provided therein, for a period of (y) 7 days after the earlier of any Borrower’s or Guarantor’s knowledge of such breach or notice thereof from the Lender if such breach relates to terms or provisions relating to reporting requirements or the delivery of notices or other items under this Agreement, the Borrower Agreement or such other Financing Document or (z) 20 days after the earlier of any Borrower’s or Guarantor’s knowledge of such breach or notice thereof from the Lender if such breach relates to any other terms or provisions of this Agreement, the Borrower Agreement or such other Financing Document;provided,however, that if no period of grace is provided in this Agreement, the Borrower Agreement or such other Financing Document with respect to defaults, events of default or breaches relating to the payment of money or to negative covenants, then the foregoing clause (ii) shall not apply to any such default, event of default or breach; |
| (c) | Failure of Borrower or any Guarantor to pay when due, at stated maturity or otherwise, any amount payable to Lender under any loan(s) or other credit accommodation not guaranteed by Ex-Im Bank that have been extended by Lender to Borrower or such Guarantor; |
| (d) | The occurrence of any Default or Event of Default as such terms are defined in the Domestic Credit Agreement or in any of the Loan Documents (as defined in the Domestic Credit Agreement);provided that an Event of Default under this clause (d) shall be deemed automatically cured upon a cure of the Default or Event of Default under the Domestic Credit Agreement or other applicable Loan Document (as defined in the Domestic Credit Agreement) (but such deemed cure shall not affect any other Event of Default that has occurred and is continuing under this Agreement); |
| (e) | Borrower fails either to (i) furnish additional Collateral to Lender as security for the Loan, in form and amount satisfactory to Lender and Ex-Im Bank as may be required by the terms of the Financing Documents, or (ii) pay to Lender an amount equal to the difference between the aggregate outstanding amount of Disbursements and the Export-Related Borrowing Base in the event the aggregate outstanding amount of Disbursements exceeds the Export-Related Borrowing Base; |
| (f) | Borrower or any Guarantor (i) applies for, consents to or suffers the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or similar fiduciary of itself or of all or a substantial part of its property or calls a meeting of its creditors, (ii) admits in writing its inability, or is generally unable, to pay its debts as they become due or ceases operations of its present business, (iii) makes a general assignment for the benefit of creditors, (iv) commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (v) is adjudicated as bankrupt or insolvent, (vi) files a petition seeking to take advantage of any other law providing for the relief of debtors, (vii) acquiesces to, or fails to have dismissed within sixty (60) days, any petition filed against it in any involuntary case under such bankruptcy laws, or (viii) takes any action for the purpose of effecting any of the foregoing; |
| (g) | Any Lien in any of the Collateral, granted or intended by the Financing Documents to be granted to Lender, ceases to be a valid, enforceable, perfected, first priority Lien (or a lesser priority if expressly permitted pursuant to Section 6 of the Fast Track Loan Authorization Agreement) subject only to Permitted Liens; |
| (h) | Any material provision of any Financing Document for any reason ceases to be valid, binding and enforceable against Borrower or any Guarantor in accordance with its terms; |
| (i) | The issuance of any levy, assessment, attachment, seizure or Lien, other than a Permitted Lien or a Lien permitted by Section 6.02 of the Domestic Credit Agreement, against any of the Collateral which is not stayed or lifted within thirty (30) calendar days, unless sufficient cash reserves are established; |
| (j) | (i) one or more judgments for the payment of money (y) in the case of Holdings, that could reasonably be expected to result in a Material Adverse Effect shall be rendered against Holdings and shall remain undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Holdings to enforce any such judgment, or (z) in the case of the Borrowers and any other Guarantor, in an aggregate amount in excess of $500,000 shall be rendered against any Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 45 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Borrower or any Guarantor (other than Holdings) to enforce any such judgment, or (ii) any Borrower or any Guarantor shall fail within 45 days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued; |
| (k) | Any breach or default occurs under any Guaranty, or any Guaranty is terminated, or any obligation to perform thereunder is terminated, or any Guarantor attempts to revoke any Guaranty; |
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| (l) | Any default or event of default other than those described above occurs under any of the Financing Documents which causes the obligations thereunder or a portion thereof to become due prior to its stated maturity or prior to the regularly scheduled dates of payment; |
| (m) | The Ex-Im Bank Guarantee ceases to be in effect for any reason whatsoever without Lender’s prior written consent, including, without limitation, Borrower’s failure to pay all fees due Ex-Im Bank, |
| (n) | Any material delay occurs in Borrower’s performance of its obligations under any Export Order outside of the ordinary course of business consistent with past practices, unless such delay is due to a force majeure and Borrower is able to satisfy Lender that the delay will not cause a default under the applicable Export Order or diminish the Buyer’s payment obligation thereunder; |
| (o) | The Domestic Revolving Credit Facility has been terminated or ceases to be in full force and effect for any reason other than in connection with voluntary terminations and/or voluntary reductions of commitments by the Borrower to the extent permitted under and in accordance with Section 2.09 of the Domestic Credit Agreement. |
| (p) | The Borrower or Guarantor fails to comply with the terms of the Domestic Revolving Credit Facility subject to any applicable cure periods;provided that an Event of Default under this clause (p) shall be deemed automatically cured upon a cure of the Default or Event of Default under the Domestic Credit Agreement or other applicable Loan Document (as defined in the Domestic Credit Agreement) caused by such failure to comply (but such deemed cure shall not affect any other Event of Default that has occurred and is continuing under this Agreement). |
Section 7.2Effect of an Event of Default. If any Event of Default shall occur, and unless such Event of Default shall be cured to the satisfaction of Lender and Ex-Im Bank, Lender may, at its option, without further notice or demand, in addition to the rights and remedies provided by any law or agreement, (a) accelerate the Commitment Termination Date, whereupon the Commitment shall terminate as of the accelerated Commitment Termination Date, (b) terminate all other commitments and obligations of Lender to make loans or other credit accommodations to Borrower, if any; (c) declare the Loan and any other indebtedness of Borrower (contingent or otherwise) to Lender immediately due and payable; (d) refuse to make or incur any additional Credit Accommodations under this Agreement; (e) assemble, sell, lease, buy, transfer or otherwise dispose of the Collateral or the Proceeds thereof; and (f) exercise all the rights and remedies provided in this Agreement or in any of the other Financing Documents or available at law, in equity, or otherwise; provided, however, that if the default relates to a matter of bankruptcy or insolvency the Loan and any other indebtedness of Borrower (contingent or otherwise) to Lender shall automatically become fully due and payable, without any notice, demand or action by Lender. Except as may be prohibited by applicable law, all of Lender’s rights and remedies shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower or of any Guarantor shall not affect Lender’s right to declare a default and to exercise its rights and remedies.
ARTICLE VIIIMISCELLANEOUS
PROVISIONS
Section 8.1Amendments. This Agreement, together with the other Financing Documents, constitute the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. This Agreement and the other Financing Documents supersede all existing agreements, oral or written, previously entered into between Borrower and Lender with respect to the Loan unless Borrower and Lender agree in writing to the contrary.
Section 8.2Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.
Section 8.3Notices. All communications and notices required to be given under this Agreement shall be hand delivered or sent by nationally recognized overnight courier or United States mail, certified or registered, postage prepaid, addressed to the party to whom the notice is to be given at the address shown below. All such communications and notices shall be effective upon delivery. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address. To the extent permitted by applicable law, if there is more than one Borrower, notice to any Borrower will constitute notice to all Borrowers:
if to Borrower:c/o
United Solar Ovonic LLC
3800 Lapeer Road
Auburn Hills, MI 48326
ATTN: Sanjeev Kumar, Chief Financial Officer
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if to Lender:
JPMorgan Chase Bank, N.A.
1300 East Ninth Street, 13th Floor
Cleveland, Ohio 44114
ATTN: David Waugh
with copy to:
JPMorgan Chase Bank, N.A. (Global Trade Services)
1717 Main Street, Floor 4
Dallas, Texas 75201-4605
ATTN: Martha Gentry
if to Ex-Im Bank:
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, D.C. 20571
ATTN: Vice President, Business Credit Division
Section 8.4Assignments and Participations. Lender, at any time, shall have the right to sell, assign, transfer, or negotiate the Loan and the Loan Documents, in whole or in part, and to grant participation interests in the Loan and the Loan Documents, subject to the same consent rights given to the Borrower Representative under the Domestic Credit Agreement. Borrower hereby acknowledges and agrees that any such disposition shall give rise to a direct obligation of Borrower to each such assignee or participant. Lender is authorized, without any limitations whatsoever, to furnish to any actual or prospective assignee or participant any information or document that Lender may have or obtain regarding the Loan, the Loan Documents, Borrower, or any guarantor of the Loan. In addition, Lender is authorized, without any limitations whatsoever, to furnish such information to affiliates of JPMorgan Chase & Co.
Section 8.5Survival; Successors and Assigns. All covenants, agreements, representations and warranties of Borrower and any Guarantor made herein and in the other Financing Documents and in the certificates, instruments and other documents delivered pursuant hereto or thereto shall survive the making or incurring of Credit Accommodations hereunder, and shall continue in full force and effect until all of Borrower’s Obligations have been paid and performed in full. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and permitted assigns of such party; and all covenants, promises and agreements by or on behalf of Borrower which are contained in this Agreement or in the other Financing Documents shall inure to the benefit of the successors and assigns of Lender and Ex-Im Bank, which is a third-party beneficiary of this Agreement and each of the other Financing Documents to which it is not a direct party. Borrower may not assign any interest that it may have under this Agreement, including, without limitation, the right to receive the benefit of the Loan to be extended hereunder, without the prior written consent of Lender and Ex-Im Bank. Any assignment made or attempted by Borrower without the prior written consent of Lender and Ex-Im Bank shall be void and of no effect. No consent by Lender and Ex-Im Bank to an assignment by Borrower shall release Borrower as the party primarily obligated and liable under the terms of this Agreement unless Borrower shall be released specifically by Lender and Ex-Im Bank in writing. No consent by Lender and Ex-Im Bank to an assignment shall be deemed to be a waiver of the requirement of prior written consent by Lender and Ex-Im Bank with respect to each and every further assignment and as a condition precedent to the effectiveness of such assignment. Lender may assign its interest in any or all of the Financing Documents to any Person, including Ex-Im Bank, without the consent of or notice to Borrower, any Guarantor, or any other Person, upon such terms as Lender in its sole discretion deems appropriate.
Section 8.6Payment of Fees and Expenses. At Lender’s discretion, Borrower will pay all out-of-pocket expenses, including, without limitation, the fees and disbursements of legal counsel employed by Lender, incurred by Lender in connection with (i) the preparation and negotiation of this Agreement and the other Financing Documents, (ii) the making or incurring of Credit Accommodations by Lender, (iii) the protection of the Collateral and any other security for the repayment of Borrower’s Obligations, and (iv) the enforcement and protection of the rights of Lender in connection with this Agreement or any of the other Financing Documents. Prior to Lender’s making or incurring any Credit Accommodations hereunder, Borrower shall pay to Lender, in consideration for the establishment of the Commitment and as an additional condition precedent to the making or incurring of Credit Accommodations, the Ex-Im Bank facility fee determined in accordance with the Fast Track Loan Authorization Agreement and all other fees and expenses due Lender.
Section 8.7Applicable Law; Jurisdiction; Consent to Service of Process. Except as hereinafter expressly provided, this Agreement is governed by and shall be construed in accordance with the laws of the State of New York. Lender and Borrower hereby submit to the non-exclusive jurisdiction of any state court or federal court sitting in Cleveland, Ohio or New York, New York over any suit, action or proceeding arising out of or relating to this Agreement. Final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon Borrower and may be enforced in any court to the jurisdiction of which Borrower is subject, by a suit upon the judgment.
Section 8.8No Liability. Neither Lender nor Ex-Im Bank shall be liable for any act or omission by it pursuant to the provisions of this Agreement, in the absence of fraud, willful misconduct or gross negligence. Borrower hereby agrees that neither Lender nor Ex-Im Bank shall be
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chargeable for any negligence, mistake, act or omission of any accountant, examiner, agency or attorney employed by it in making examinations, investigations or collections, or otherwise in perfecting, maintaining, protecting or realizing upon any lien or Security Interest in the Collateral or any other interest in any security for Borrower’s Obligations. Neither Lender nor Ex-Im Bank shall incur any liability to Borrower or to any other party in connection with the acts or omissions of Lender or Ex-Im Bank in reliance upon any certificate or other paper believed by Lender or Ex-Im Bank to be genuine or with respect to any other thing which Lender or Ex-Im Bank may do or refrain from doing, unless such act or omission amounts to fraud or gross negligence.
Section 8.9Indemnification.The Borrower agrees to indemnify, defend and hold each of the Lender and Ex-Im Bank, its parent companies, subsidiaries, affiliates, their respective successors and assigns and each of their respective shareholders, directors, officers, employees and agents (collectively, the “Indemnified Persons”) harmless from any and against any and all loss, liability, obligation, damage, penalty, judgment, claim, deficiency, expense, interest, penalties, attorneys’ fees (including the fees and expenses of attorneys engaged by the Indemnified Person at the Indemnified Person’s reasonable discretion) and amounts paid in settlement (“Claims”) to which any Indemnified Person may become subject arising out of or relating to this Agreement or the Collateral, including any Claims resulting from any Indemnified Person’s own negligence,except to the limited extent that the Claims are proximately caused by the Indemnified Person’s gross negligence or willful misconduct. The indemnification provided for in this paragraph shall survive the termination of this Agreement and shall not be affected by the presence, absence or amount of or the payment or nonpayment of any claim under, any insurance.
Section 8.10No Partnership. Nothing contained in this Agreement shall be construed in a manner to create any relationship among Borrower, Lender and Ex-Im Bank other than the relationship of borrower, lender and credit enhancement provider, and Borrower, Lender and Ex-Im Bank shall not be considered partners or co-venturers for any purpose on account of this Agreement.
Section 8.11Controlling Agreement. Borrower acknowledges and agrees that (a) the Borrower Agreement and the Fast Track Borrower Agreement Supplement contain additional representations, terms, covenants and conditions related to Borrower and the Loan, and (b) as between Lender and Borrower this Agreement, the Borrower Agreement and the Fast Track Borrower Agreement Supplement together govern the establishment of the Loan as a Loan Facility guaranteed pursuant to the Ex-Im Bank Guarantee and the making and incurring of Credit Accommodations under the Loan. If any representations, terms, covenants or conditions contained in this Agreement, the Domestic Credit Agreement, the Borrower Agreement or the Fast Track Borrower Agreement Supplement are determined to be in conflict, the more stringent provision with respect to Borrower shall govern and prevail.
Section 8.12USA PATRIOT ACT NOTIFICATION. The following notification is provided to Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person or entity that opens an account, including any deposit account, treasury management account, loan, other extension of credit, or other financial services product. What this means for Borrower: When Borrower opens an account, if Borrower is an individual Lender will ask for Borrower’s name, taxpayer identification number, residential address, date of birth, and other information that will allow Lender to identify Borrower, and if Borrower is not an individual Lender will ask for Borrower’s name, taxpayer identification number, business address, and other information that will allow Lender to identify Borrower. Lender may also ask, if Borrower is an individual to see Borrower’s driver’s license or other identifying documents, and if Borrower is not an individual to see Borrower’s legal organizational documents or other identifying documents.
Section 8.13WAIVER OF TRIAL BY JURY. EACH OF BORROWER, EACH GUARANTOR AND LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH BORROWER, SUCH GUARANTOR AND LENDER MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER FINANCING DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY EACH OF BORROWER, EACH GUARANTOR AND LENDER, AND BORROWER AND EACH GUARANTOR EACH HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER AND EACH GUARANTOR EACH FURTHER REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO BE REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
Section 8.14Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity, however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respect shall remain valid and enforceable.
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Section 8.15Rules of Construction. For purposes of this Agreement, the following additional rules of construction shall apply, unless specifically indicated to the contrary: (a) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter; (b) the term “or” is not exclusive; (c) the term “including” (or any form thereof) shall not be limiting or exclusive; (d) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; (e) the words “this Agreement”, “herein”, “hereof”, “hereunder” or other words of similar import refer to this Agreement as a whole including the exhibits hereto as the same may be amended, modified or supplemented; (f) all references in this Agreement to sections, subsections, paragraphs and exhibits shall refer to the corresponding sections, subsections, paragraphs and exhibits of or to this Agreement; and (g) all references to any instruments or agreements, including references to any of the Financing Documents, shall include any and all modifications, amendments and supplements thereto and any and all restatements, extensions or renewals thereof to the extent permitted under this Agreement.
Section 8.16Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute the same document. Signature pages may be detached from the counterparts to a single copy of this Agreement to physically form one document.
Section 8.17Time is of the Essence. Time is of the essence in the performance of this Agreement.
Section 8.18Waiver. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Borrower, or between Lender and any Guarantor, shall constitute a waiver of any of Lender’s rights or of any obligations of Borrower or of any Guarantor as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent in subsequent instances where such consent is required, and in all cases such consent may be granted or withheld in the sole discretion of Lender.
ARTICLE IX
THE BORROWER REPRESENTATIVE
TRIAL
Section 9.1 Appointment; Nature of Relationship. United Solar Ovonic Corporation is hereby appointed by each Borrower and Guarantor as its contractual representative (herein referred to as the “Borrower Representative”) hereunder and under each other Financing Document, and each Borrower irrevocably authorizes the Borrower Representative to act as the contractual representative of such Borrower with the rights and duties expressly set forth herein and in the other Financing Documents. The Borrower Representative agrees to act as such contractual representative upon the express conditions contained in this Article IX. Additionally, the Borrowers hereby appoint the Borrower Representative as their agent to receive all of the proceeds of the Advances, at which time the Borrower Representative shall promptly disburse such Advances to the appropriate Borrower, provided that such amount shall not exceed such Borrower’s Ex-Im Availability. The Lenders, and its officers, directors, agents or employees, shall not be liable to the Borrower Representative or any Borrower or Guarantor for any action taken or omitted to be taken by the Borrower Representative or the Borrower or the Guarantor pursuant to this Section 9.1.
Section 9.2 Powers. The Borrower Representative shall have and may exercise such powers under the Financing Documents as are specifically delegated to the Borrower Representative by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Borrower Representative shall have no implied duties to the Borrower or Guarantor, or any obligation to the Lender to take any action thereunder except any action specifically provided by the Financing Documents to be taken by the Borrower Representative.
Section 9.3 Employment of Agents. The Borrower Representative may execute any of its duties as the Borrower Representative hereunder and under any other Financing Document by or through authorized officers.
Section 9.4 Notices. Each Borrower shall immediately notify the Borrower Representative of the occurrence of any Event of Default hereunder referring to this Agreement describing such Event of Default and stating that such notice is a “notice of default.” In the event that the Borrower Representative receives such a notice, the Borrower Representative shall give prompt notice thereof to the Lender. Any notice provided to the Borrower Representative hereunder shall constitute notice to each Borrower and Guarantor on the date received by the Borrower Representative.
Section 9.5 Successor Borrower Representative. Upon the prior written consent of the Lender, the Borrower Representative may resign at any time, such resignation to be effective upon the appointment of a successor Borrower Representative.
Section 9.6 Execution of Financing Documents; Export-Related Borrowing Base Certificate. Each of the Borrowers hereby empower and authorize the Borrower Representative, on behalf of each of them, to execute and deliver to the Lender the Financing Documents and all related agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect the purposes of the Financing Documents, including without limitation, the Export-Related Borrowing Base Certificates. Each Borrower agrees that any action taken by the Borrower Representative or the Borrowers or the Guarantor in accordance with the terms of this Agreement or the other Financing Documents, and the exercise by the Borrower Representative of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Borrowers and the Guarantor.
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Section 9.7 Reporting. Each Borrower hereby agrees that such Borrower, as the case may be, shall furnish promptly after each fiscal month to the Borrower Representative a copy of its Export-Related Borrowing Base Certificate and any other certificate or report required hereunder or requested by the Borrower Representative on which the Borrower Representative shall rely to prepare the Export-Related Borrowing Base Certificates required pursuant to the provisions of this Agreement and the other Financing Documents.
BORROWER ACKNOWLEDGES HAVING READ ALL OF THE PROVISIONS OF THIS AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS EXECUTED AS OF THE DATE FIRST SET FORTH ABOVE.
BORROWER:
UNITED SOLAR OVONIC CORPORATION
By /s/ Sanjeev Kumar
Name: Sanjeev Kumar
Title: Vice President & Treasurer
UNITED SOLAR OVONIC LLC
By /s/ Sanjeev Kumar
Name: Sanjeev Kumar
Title: Vice President & Treasurer
GUARANTOR:
ENERGY CONVERSION DEVICES, INC.
By /s/ Sanjeev Kumar
Name: Sanjeev Kumar
Title: Vice President & Chief Financial Officer
LENDOR:
JPMORGAN CHASE BANK, N.A.
By /s/ John Psellas
Name: John Psellas
Title: Vice President
ACKNOWLEDGED:
JPMORGAN CHASE BANK, N.A.
(Global Trade Services)
By /s/ Luis Noriega
Name: Luis Noriega
Title: Vice President
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