gmo_ex101





Exhibit
10.1


 



Execution Version





 


SENIOR
SUPERPRIORITY

 

 


 

 

 


DEBTOR-IN-POSSESSION
CREDIT AGREEMENT

 


Dated
as of November 18, 2020

 


 

 


among

 


GENERAL
MOLY INC.,

 


as
Borrower,

 


NEW
MOLY LLC,

 


as
Agent and Majority Lender,

 


and

 


BRUCE
D. HANSEN and BONG T. HANSEN,

 


as
Minority Lender

 




1 =
1 4777995.4 4777995.4


602679958.1








 






 


TABLE
OF CONTENTS

 




	
ARTICLE I DEFINITIONS AND ACCOUNTING
TERMS

	
 1


	
1.01 Defined Terms.

	
 1


	
1.02 Other Interpretive
Provisions.

	
 8


	
1.03 Accounting Terms.

	
 8


	
1.04 Times of Day.

	
 8


	
	
 


	
ARTICLE II THE
LOANS

	
 9


	
2.01 The Loans.


	
 9


	
2.02 Borrowing of the Loans.

	
 9


	
2.03 Prepayments.

	
 9


	
2.04 Repayment of Loans.

	
 10


	
2.05 Interest.

	
 10


	
2.06 Evidence of Debt.

	
 11


	
2.07 Payments Generally.

	
 11


	
 

	
 


	
ARTICLE III TAXES,
YIELD PROTECTION AND ILLEGALITY

	
 11


	
3.01 Taxes.

	
 11


	
3.02 Survival.

	
 11


	
 

	
 


	
ARTICLE IV
CONDITIONS PRECEDENT

	
 12


	
4.01Conditions to Closing and Funding of Loans
on the Closing Date.


	
 12


	
4.02 Conditions to Funding All
Loans.

	
 12


	
 

	
 


	
ARTICLE V
REPRESENTATIONS AND WARRANTIES

	
 13


	
5.01 Existence, Qualification and
Power.

	
 13


	
5.02 Authorization; No
Contravention.

	
 13


	
5.03 Governmental Authorization; Other
Consents.

	
 13


	
5.04 Binding Effect.

	
 14


	
5.05 No Material Adverse
Effect.


	
 14


	
5.06 Litigation.


	
 14


	
5.07 Environmental Compliance.

	
 14


	
5.08 Insurance.


	
 14


	
5.09 Taxes.

	
 14


	
5.10 Disclosure.

	
 14


	
5.11 Compliance with Laws and
Agreements.

	
 15


	
5.12 Labor Matters.

	
 15


	
5.13Anti-Terrorism Laws; Anti-Corruption Laws;
Anti-Money-Laundering Laws; and Sanctions.

	
 15


	
5.14 Reorganization
Matters.


	
 15






 



 







 





 


	
ARTICLE VI
AFFIRMATIVE COVENANTS

	
 15


	
6.01 Certificates; Other
Information.

	
 15


	
6.02 Notices.

	
 16


	
6.03 Payment of Taxes and Other
Obligations.


	
 16


	
6.04 Preservation of Existence.

	
 16


	
6.05 Maintenance of Properties and
Leases.

	
 17


	
6.06 Maintenance of Insurance.

	
 17


	
6.07 Compliance with Laws.

	
 17


	
6.08 Books and Records.

	
 17


	
6.09 Inspection Rights.

	
 17


	
6.10 Use of Proceeds.

	
 18


	
6.11 Environmental
Compliance.


	
 18


	
6.12 Further Assurances.


	
 18


	
6.13 Milestones.

	
 18


	
6.14 Approved Budget.



	
 18


	
          



	
 


	
ARTICLE VII
NEGATIVE COVENANTS

	
 18


	
7.01 Liens. 

	
 18


	
7.02 Investments.

	
 19


	
7.03 Indebtedness.

	
 19


	
7.04 Fundamental Changes.

	
 19


	
7.05 Dispositions. 

	
 19


	
7.06 Restricted Payments.

	
 19


	
7.07 Transactions with Affiliates and
Insiders.

	
 19


	
7.08 Burdensome Agreements.

	
 20


	
7.09 Amendments to Indebtedness; Material
Contracts.

	
 20


	
7.10Amendments to Material Documents; Fiscal
Year; Legal Name.

	
 20


	
7.11 [Reserved].

	
 20


	
7.12 Speculative
Transactions.

	
 20


	
7.13 Formation of
Subsidiaries.

	
 20


	
7.14 Prepayment of
Indebtedness.

	
 20


	
7.15 Sanctions.

	
 20


	
 7.16 Anti-Corruption Laws.

	
 20


	
7.17 Capital Expenditures.

	
 21


	
7.18 Affiliate
Compensation.

	
 21


	
7.19 Chapter 11 Claims.

	
 21


	
7.20 Amendments to the DIP Order.


	
 21


	
7.21 Communications with Bankruptcy
Court.

	
 21


	
7.22 Budget Covenant.  

	
 21






 



 







 





 


	
              

	
 


	
ARTICLE VIII EVENTS
OF DEFAULT AND REMEDIES

	
 21


	
8.01 Events of Default. 

	
 21


	
8.02 Remedies Upon Event of
Default.

	
 23


	
8.03 Application of Funds.

	
 23


	
              

	
 


	
ARTICLE IX
MISCELLANEOUS

	
 24


	
9.01 Amendments.

	
 24


	
9.02 Notices and Other Communications; Facsimile
Copies.

	
 24


	
9.03 No Waiver; Cumulative
Remedies.

	
 24


	
9.04 Expenses; Indemnity; Damage
Waiver.

	
 25


	
9.05 Payments Set Aside.

	
 26


	
9.06 Successors and
Assigns.

	
 26


	
9.07 Set-off.

	
 26


	
9.08 Interest Rate
Limitation.

	
 27


	
9.09 Counterparts; Integration;
Effectiveness.

	
 27


	
9.10 Survival of Representations and
Warranties.

	
 27


	
9.11 Severability.

	
 27


	
9.12 GOVERNING LAW;
JURISDICTION.

	
 27


	
9.13 WAIVER OF RIGHT TO TRIAL BY
JURY.

	
 28


	
9.14 No Advisory or Fiduciary
Relationship.

	
 28


	
9.15 Conflict.

	
 28


	
ARTICLE
X

	
 28






 


SCHEDULES

 



4.02(g)                   

Milestones







5.07                   

Environmental
Matters







5.08                   

Insurance







5.11                   

Compliance with
Laws







7.01                   

Existing
Liens







7.02                   

Existing
Investments







7.03                   

Existing
Indebtedness







9.02                   

Certain Addresses
for Notices






 


EXHIBITS

 



A                   

Form of Borrowing
Request







B                   

Initial
Budget







C                   

Restructuring
Support Agreement








-1-








 






 


SENIOR
SUPERPRIORITY

 


DEBTOR-IN
POSSESSION CREDIT AGREEMENT

 


This
SENIOR SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT (as
amended, restated, amended and restated, supplemented or otherwise
modified from time to time, this “Agreement”) is entered
into as of November 18, 2020, among GENERAL MOLY INC., a Delaware corporation, as
borrower (the “Borrower”),
BRUCE D. HANSEN and BONG T. HANSEN, individuals, jointly as joint
tenants, as a lender (together with any successors or assigns,
collectively the “Minority
Lender”), and NEW MOLY
LLC, a Delaware limited liability company, as a lender (together
with any successors or assigns, the “Majority
Lender” and, together
with the Minority Lender, collectively the
“Lenders”
and each a “Lender”)
and Majority Lender as administrative agent on behalf of the
Lenders (in such capacity, together with any successors or assigns,
the “Agent”).

 


WITNESSETH:

 


WHEREAS,
on November 18, 2020 (the “Petition Date”), the
Borrower (also referred to herein as the “Debtor”) commenced a case
(the “Chapter 11
Case”) under chapter 11 of title 11 to the United
States Code (the “Bankruptcy Code”) in the
United States Bankruptcy Court for the District of Colorado (the
“Bankruptcy
Court”); and

 


WHEREAS,
the Borrower has requested the Lenders make post-petition loans and
advances and provide other financial or credit accommodations to
the Borrower, and the Lenders have agreed, severally and not
jointly, and subject to the conditions set forth herein and the DIP
Orders, to extend a senior multi-draw credit facility to the
Borrower, comprised of (x) one Initial DIP Loan in the aggregate
principal amount of up to $400,000, which will be available to be
drawn on the Closing Date and (y) Additional DIP Loans in the
aggregate principal amount of up to $1,000,000, which will be
available to be drawn upon the satisfaction of the Milestones and
the other conditions set forth herein.

 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as
follows:

 


ARTICLE
I

 


DEFINITIONS AND ACCOUNTING
TERMS

 

1.01 Defined Terms.

 


As used
in this Agreement, the following terms shall have the meanings set
forth below:

 


“Acquisition”
means, by any Person, the acquisition by such Person, in a single
transaction or in a series of related transactions, of all or
substantially all of the property of another Person or more than a
majority of the Voting Stock of another Person, in each case
whether or not involving a merger or consolidation with such other
Person and whether for cash, property, services, assumption of
Indebtedness, securities or otherwise.

 


“Additional
DIP Commitment” means each Lender’s commitment
to make Additional DIP Loans in an amount equal to such
Lender’s Applicable Percentage of $1,000,000, and
“Additional DIP
Commitments” means all of such commitments
collectively (which, for the avoidance of doubt, are several and
not joint commitments).

 


“Additional
DIP Loans” has the meaning set forth in Section
2.01(b).

 


“Affiliate”
means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified;
provided, that for purposes of this Agreement, the Agent and the
Lenders shall not be considered “Affiliates” of the
Borrower (except that the Minority Lender shall be considered an
“Affiliate” of the Borrower for purposes of the
covenants set forth in Sections 7.07 and 7.18).

 


“Agreement”
has the meaning set forth in the introductory paragraph
hereto.

 


“Anti-Corruption
Laws” means all Laws of any jurisdiction applicable to
the Borrower from time to time concerning or relating to bribery or
corruption, including without limitation the Foreign Corrupt
Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et
seq.

 


“Anti-Money
Laundering Laws” means all Laws of any jurisdiction
applicable to the Borrower from time to time concerning or relating
to money laundering, including, without limitation, the Patriot
Act.

 


“Anti-Terrorism
Laws” means all Laws of any jurisdiction applicable to
the Borrower from time to time concerning or relating to terrorism
or money laundering, including, without limitation, Title III of
the Patriot Act, the Trading with the Enemy Act, and each of the
foreign assets control regulations of the United States Treasury
Department (31 C.F.R. Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating
thereto.

 


“Applicable
Percentage” means (a) with respect to the Majority
Lender, 68.0% and (b) with respect to the Minority Lender,
32.0%.

 



 

1







 





 


“Approved
Budget” means (i) the Initial Budget and (ii) each
updated thirteen (13) week cash flow forecast to be delivered every
week by the Borrower to the Agent and the Lenders pursuant to
Section 6.01(c) to the extent that each such updated thirteen (13)
week cash flow forecast is satisfactory in all material respects to
the Agent in its sole discretion.

 


“Assignment
and Assumption” means an assignment and assumption
entered into by a Lender and an assignee.

 


“Attributable
Indebtedness” means, on any date, in respect of any
Capital Lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP.

 


“Bankruptcy
Code” has the meaning set forth in the recitals
hereto.

 


“Bankruptcy
Court” has the meaning set forth in the recitals
hereto.

 


 “Board
of Directors” means, with respect to any Person, the
board of directors of such Person (or the equivalent board of
advisors, managers or members or body performing similar functions
for such Person) or any committee of the board of directors of such
Person authorized, with respect to any particular matter, to
exercise the power of the board of directors (or board of advisors,
managers or members or body performing similar functions) of such
Person.

 


“Borrower”
has the meaning set forth in the introductory paragraph
hereto.

 


“Borrowing”
means a borrowing or deemed borrowing of a Loan on a given
date.

 


“Borrowing
Request” means a written notice of a Borrowing of
Loans, which shall be substantially in the form of Exhibit
A.

 


“Business
Day” means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close under
the Laws of, or are in fact closed in, any of the States of
Colorado or New York.

 


“Business”
means the business or businesses operated by the
Borrower.

 


“Capital
Expenditures” means, with respect to any Person for
any period, any expenditure in respect of the purchase or other
acquisition of any fixed or capital assets which are classified as
capital expenditures in accordance with GAAP (excluding normal
replacements and maintenance which are properly charged to current
operations).

 


“Capital
Lease” means, as applied to any Person, any lease of
any property by that Person as lessee which, in accordance with
GAAP, is required to be accounted for as a capital lease on the
balance sheet of that Person.

 


“Carve-Out”
shall have the meaning set forth in the DIP Order.

 


“Chapter
11 Case” has the meaning set forth in the introductory
paragraph hereto.

 


“Closing
Date” means the date that each of the conditions
precedent set forth in Section 4.01 is satisfied.

 


 “Code”
means the Internal Revenue Code of 1986, as amended.

 


“Committee”
means, collectively, the official committee of unsecured creditors
and any other committee formed, appointed or approved in the
Chapter 11 Case.

 


“Contractual
Obligation” means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it
or any of its property is bound.

 


“Control”
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by
contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto. Without
limiting the generality of the foregoing, a Person shall be deemed
to be Controlled by another Person if such other Person possesses,
directly or indirectly, power to vote 10% or more of the securities
having ordinary voting power for the election of directors,
managing general partners or the equivalent; provided that the
Agent and the Lenders shall not be deemed to “control”
the Borrower.

 



 

2







 





 


“Debt
Issuance” means the issuance by the Borrower of any
Indebtedness.

 


“Debtor”
has the meaning set forth in the recitals hereto.

 


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

 


“Default”
means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or
both, would be an Event of Default.

 


“Default
Rate” means an interest rate equal to the Interest
Rate plus 2.00% per annum, to the fullest extent permitted by
applicable Laws.

 


“DIP
Commitments” means, collectively, the Initial DIP
Commitments and the Additional DIP Commitments.

 


“DIP
Order” means the Interim Order or Final Order, as
applicable under the circumstances.

 


“Disclosure
Statement” means the disclosure statement filed with
the Bankruptcy Court in connection with the Chapter 11
Case.

 


“Disposition”
or “Dispose” means the sale,
transfer, license, lease or other disposition of any property by
the Borrower, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith, and
including, for the avoidance of doubt, any transfer of the equity
interests that Borrower holds in its Subsidiaries.

 


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

 


“Environment”
means ambient and indoor air, surface water and groundwater
(including potable water, navigable water and wetlands), the land
surface or subsurface strata or sediment, and natural resources
such as flora or fauna.

 


“Environmental
Laws” means any and all Laws relating to (a) the
Environment, preservation or reclamation of natural resources, or
to the generation, use, handling, transportation, storage,
treatment, or Release of any Hazardous Material, (b) human health
and employee health, and (c) acid mine drainage.

 


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

 


“Event
of Default” has the meaning specified in Section
8.01.

 


“Excluded
Taxes” means any of the following Taxes imposed on or
with respect to a Recipient or required to be withheld or deducted
from a payment to a Recipient: Taxes imposed on or measured by net
income (however denominated), franchise Taxes, and branch profits
Taxes, in each case, imposed as a result of such Recipient being
organized under the laws of, or having its principal office or, in
the case of any Lender, its Lending Office located in, the
jurisdiction imposing such Tax (or any political subdivision
thereof).

 


“Final
Order” means, collectively, the order of the
Bankruptcy Court entered in the Chapter 11 Case after a final
hearing under Bankruptcy Rule 4001(c)(2) or such other procedures
as approved by the Bankruptcy Court which order shall be in form
and substance satisfactory to the Agent, in its sole discretion,
and which order is in effect and not stayed, together with all
extensions, modifications and amendments thereto, in form and
substance satisfactory to the Agent, in its sole discretion, which,
among other matters but not by way of limitations, authorizes the
Borrower to obtain credit, incur (or guaranty) Indebtedness under
this Agreement and the other Loan Documents, as the case may be,
provides for the super priority of the Agent’s and
Lenders’ claims.

 



 

3







 





 


“Fiscal
Quarter” means a calendar quarter of a Fiscal
Year.

 


“Fiscal
Year” means the Fiscal Year of the Borrower, which
period shall be the 12-month period ending on December 31 of each
year.

 


“GAAP”
means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and the statements and pronouncements of the Financial
Accounting Standards Board, consistently applied and as in effect
from time to time.

 


“Governmental
Authority” means the government of the United States
or any other nation, or of any political subdivision thereof,
whether state or local, any tribal, aboriginal or native government
or corporation, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or
the European Central Bank).

 


“Guarantee”
means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, or
(b) any Lien on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any
right, contingent or otherwise, of any holder of such Indebtedness
to obtain any such Lien). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount
of the related primary obligation, or portion thereof, in respect
of which such Guarantee is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term
“Guarantee” as a verb has a corresponding
meaning.

 


“Hazardous
Materials” means (a) any substance, material or waste
designated or defined as a “hazardous substance,”
“hazardous material,” “hazardous waste,”
“extremely hazardous waste,” “restricted
hazardous waste,” “pollutant or contaminant,”
“toxic waste,” or “toxic substance” under
any provision of Environmental Law, and (b) any petroleum,
petroleum distillates, petroleum products, asbestos or
asbestos-containing materials, urea-formaldehyde insulation,
explosive or radioactive materials, and polychlorinated
biphenyls.

 


“Indebtedness”
means, as to any Person at a particular time, without duplication,
all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:

 

(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

 



 

4







 





 

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

 


For all
purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse
to such Person. The amount of any Capital Lease obligation as of
any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date. To the extent that
any recourse with respect to Indebtedness of the type described in
clause (e) above is limited to solely to property of a Person, the
amount of Indebtedness of any Person for purposes of clause (e)
shall be equal to the lesser of (i) the aggregate unpaid amount of
such Indebtedness and (ii) the net book value of such property
encumbered thereby.

 


“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes
imposed on or with respect to any payment made by or on account of
any obligation of the Borrower under any Loan Document, and (b) to
the extent not otherwise included in clause (a), Other
Taxes.

 


“Indemnitee”
has the meaning specified in Section 9.04(b).

 


“Initial
Budget” means the forecast delivered on the Closing
Date which reflects the Borrower’s anticipated cash receipts
and anticipated disbursements for each calendar week during the
period from the Petition Date through and including the end of the
thirteenth (13th) calendar week following the Petition Date, which
shall be satisfactory to the Agent in its sole discretion. The
Initial Budget is attached hereto as Exhibit B.

 


“Initial
DIP Commitment” means each Lender’s commitment
to make Initial DIP Loans in an amount equal to such Lender’s
Applicable Percentage of $400,000, and “Initial DIP
Commitments” means all of such commitments collectively
(which, for the avoidance of doubt, are several and not joint
commitments).

 


“Initial
DIP Loans” has the meaning set forth in Section
2.01(a).

 


“Interest
Rate” has the meaning specified in Section
2.05(a).

 


“Interest
Payment Date” means each calendar day.

 


“Interim
Order” means that certain interim order of the
Bankruptcy Court entered in the Chapter 11 Case (I) Authorizing
Postpetition Financing pursuant to 11 U.S.C. §§ 105(A),
361, 362, 363, 364(c)(1), and 364(e), and (II) Scheduling a Final
Hearing Pursuant to Bankruptcy Rules 4001(b) and
4001(c).

 


“Investment”
means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interests of another Person, (b) a
loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness
of such other Person, or (c) an Acquisition. For purposes of
covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment net of any
return representing a return of capital with respect to such
Investment.

 


“Involuntary
Disposition” means any loss of, damage to or
destruction of, or any condemnation or other taking for public use
of, any property of the Borrower.

 


“IRS”
means the United States Internal Revenue Service.

 


“Laws”
means, collectively, all international, foreign, federal, state,
local, tribal or aboriginal statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with
the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the
force of law.

 


“Lien”
means (a) any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential
arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the
foregoing) and (b) in the case of securities or Equity Interests,
any purchase option, call or similar right of a third part with
respect to such securities or Equity Interests.

 


“Loan
Documents” means this Agreement and each other
agreement, instrument, or document executed at any time in
connection with this Agreement.

 


“Loans”
means Initial DIP Loans and/or Additional DIP Loans, as
applicable.

 


“Material
Adverse Effect” means (a) a material adverse change
in, or a material adverse effect upon, the Debtor’s
operations, business, assets, properties, liabilities or condition
(financial or otherwise) of the Borrower (except for the filing,
commencement and continuation of the Chapter 11 Case and the events
that customarily result from the filing, commencement and
continuation of the Chapter 11 Case), or the Debtor’s ability
to effectuate confirmation of a chapter 11 plan which comports with
the requirements of the Restructuring Support Agreement; (b) a
material impairment of the ability of the Borrower to pay or
perform any of its Obligations; (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against
the Borrower of any Loan Documents; or (d) a material impairment of
the rights and remedies of the Agent or any of the Lenders under
any Loan Documents.

 



 

5







 





 


“Material
Contract” means (i) the Restructuring Support
Agreement and (ii) any other contracts, agreements, leases,
Instruments and other binding commitments and undertakings of the
Borrower the performance or breach of which could reasonably be
expected to have a Material Adverse Effect.

 


“Maturity
Date” means the earliest of (i) thirty five (35) days
after the date the Interim Order is entered, if the Final Order has
not been entered on the docket of the Bankruptcy Court, (ii) the
conversion of, or the filing by Debtor of a motion with the
Bankruptcy Court seeking to convert, the Chapter 11 Case into
liquidation proceedings under chapter 7 of the Bankruptcy Code,
(iii) the date of the acceleration of the Loans and termination of
the DIP Commitments hereunder, following the occurrence of an Event
of Default and/or pursuant to the DIP Order, and (iv) the failure
of the Bankruptcy Court to enter its order confirming the Plan of
Reorganization within 100 days after the Petition
Date.

 


“Milestones”
has the meaning set forth in Section 4.02(g).

 


“Net
Cash Proceeds” means the aggregate cash or cash
equivalents proceeds received by the Borrower in respect of any
Disposition, Debt Issuance, or Involuntary Disposition, including
by way of insurance proceeds or condemnation awards or sale or
issuance of Equity Interests, net of (a) direct costs incurred in
connection therewith (including, without limitation, legal,
accounting and investment banking fees, and sales commissions), (b)
Taxes paid as a result thereof or reasonably estimated to be
actually payable within two (2) years of the date of the relevant
Disposition, Debt Issuance, or Involuntary Disposition as a result
thereof, and (c) in the case of any Disposition, the amount
necessary to retire any Indebtedness secured by a Permitted Lien on
the related property; it being understood that “Net Cash
Proceeds” shall include, without limitation, any cash or cash
equivalents received upon the sale or other disposition of any
non-cash consideration received by the Borrower in any Disposition,
Debt Issuance, Involuntary Disposition or sale or issuance of
Equity Interests.

 


“Note”
has the meaning specified in Section 2.06.

 


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

 


“Organization
Documents” means the certificate or articles of
incorporation and the bylaws of a corporation and any agreement,
instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or
organization.

 


“Other
Connection Taxes” means, with respect to any
Recipient, Taxes imposed as a result of a present or former
connection between such Recipient and the jurisdiction imposing
such Tax (other than connections arising from such Recipient having
executed, delivered, become a party to, performed its obligations
under, received payments under, engaged in any other transaction
pursuant to or enforced any Loan Document, or sold or assigned an
interest in any Loan or Loan Document).

 


“Other
Taxes” means all present or future stamp, court or
documentary, intangible, recording, filing or similar Taxes that
arise from any payment made under, from the execution, delivery,
performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes that are Other
Connection Taxes imposed with respect to an
assignment.

 


“Permit”
means any permit, license, certificate, approval, consent,
clearance, notification, waiver certification, registration,
franchises, accreditations, qualification or authorization issued
or granted by any Governmental Authority or pursuant to any
applicable Law.

 


“Permitted
Dispositions” means (so long as no Default exists or
would result therefrom) the following:

 

(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.

 



 

6







 





 


“Permitted
Indebtedness” means, at any time, Indebtedness of the
Borrower permitted to exist at such time pursuant to the terms of
Section 7.03.

 


“Permitted
Investments” means, at any time, Investments by the
Borrower permitted to exist at such time pursuant to the terms of
Section 7.02.

 


“Permitted
Liens” means, at any time, Liens in respect of
property the Borrower permitted to exist at such time pursuant to
the terms of Section 7.01.

 


“Person”
means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership,
Governmental Authority or other entity.

 


“Petition
Date” has the meaning set forth in the recitals
hereto.

 


“Plan
of Reorganization” means the Plan of Reorganization
filed by the Borrower that implements the terms and conditions set
out in the Restructuring Support Agreement in form acceptable to
the Agent and the Lenders.

 


“Recipient”
means the Agent, any Lender or an assignee of any of the foregoing,
as applicable.

 


“Register”
has the meaning specified in Section 9.06(c).

 


“Related
Parties” means, with respect to any Person, such
Person’s Affiliates and the partners, directors, officers,
employees, agents, advisors and sub-advisors of such Person and of
such Person’s Affiliates.

 


“Release”
means any depositing, spilling, leaking, seeping, pumping, pouring,
emitting, emanating, discarding, abandoning, emptying, discharging,
migrating, injecting, escaping, leaching, dumping, or disposing in,
into or through the Environment.

 


“Responsible
Officer” means the chief executive officer, president,
chief restructuring officer, chief legal officer, chief financial
officer, treasurer or assistant treasurer of the Borrower or any
other officer of the Borrower designated as a “Responsible
Officer” for purposes of the Loan Documents by the Borrower
in writing to the Agent and the Lenders and reasonably acceptable
to the Agent. Any document delivered hereunder that is signed by a
Responsible Officer of the Borrower shall be conclusively presumed
to have been authorized by all necessary corporate, partnership
and/or other action on the part of the Borrower and such
Responsible Officer shall be conclusively presumed to have acted on
behalf of the Borrower.

 


“Restricted
Payment” means any dividend or other distribution
(whether in cash, securities or other property) with respect to any
Equity Interests of the Borrower, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such
Equity Interests or on account of any return of capital to the
Borrower’s stockholders, partners or members (or the
equivalent Person thereof), any payment of management fees (or
other fee of a similar nature) or out-of-pocket expenses to the
holders of such Equity Interests or any setting apart of funds or
property for any of the foregoing.

 


“Restructuring
Support Agreement” means that certain Restructuring
Support Agreement, dated on or about November 18, 2020, among the
Debtor, the Lenders, and the other parties thereto, which is
attached hereto as Exhibit C.

 


“Sanctioned
Country” means any country, region or territory to the
extent that such country or territory itself is the subject of
comprehensive Sanctions.

 


“Sanctioned
Person” means, at any time, (a) any Person who is the
subject of any Sanctions, including any Person listed or designated
as being the target of any Sanctions (whether by name or by reason
of being included in a class of persons), (b) any Person operating,
having a place of business, organized, located or resident in a
Sanctioned Country, (c) any agency of the government of or an
organization controlled by a Sanctioned Country, or (d) any Person
that is 50% or more, individually or in the aggregate, directly or
indirectly, owned, or that is Controlled by, one or more of the
persons indicated in clauses (a), (b) and/or (c), or acting
directly or indirectly on behalf of any such Person.

 


“Sanctions”
means any economic, financial or trade sanctions, laws, regulations
or restrictive measures, or trade embargoes, imposed, administered
or enforced from time to time by (a) the U.S. government, including
those administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury or the U.S. Department of State,
(b) the United Nations or its Security Council, (c) the European
Union, (d) Her Majesty’s Treasury of the United Kingdom, or
(e) any other relevant sanctions authority, including any other
governmental or regulatory authority, institution or agency which
administers economic, financial or trade sanctions laws,
regulations, trade embargoes or restrictive measures applicable to
the Borrower, the Agent or the Lenders.

 


“Subsidiary”
of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which at
least a majority of the shares of Voting Stock is at the time
beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person.

 



 

7







 





 


“Superpriority
Claim” shall mean a claim against Debtor in the
Chapter 11 Case that is a superpriority administrative expense
claim having priority over any or all administrative expenses and
other claims of the kind specified in, or otherwise arising or
ordered under, any sections of the Bankruptcy Code (including,
without limitation, sections 105, 326, 328, 330, 331, 503(b),
507(a), 507(b), 546, 726, 1113 and/or 1114 thereof), whether or not
such claim or expenses may become secured by a judgment Lien or
other non-consensual Lien, levy or attachment, subject to the
Carve-Out in all respects.

 


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

 


“Test
Period” means (i) the two (2) calendar week period
ending two weeks after the Petition Date and (ii) thereafter, each
rolling two (2) calendar week period ending two weeks after the end
of the preceding Test Period.

 


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

 


“Variance
Report” means a weekly report to be provided by
Borrower to the Agent and the Lenders within three (3) Business
Days after the end of each week reflecting actual disbursements and
the other amounts of the type of each line item set forth on the
Approved Budget for (i) the immediately preceding week, (ii) the
applicable Test Period, and (iii) the period from the beginning of
the week ending November 27, 2020 to the end of the immediately
preceding week, in each case, reflecting the amount of variance
and, in the case of clause (ii), percentage variance of actual
disbursements and the other amounts of the type of each line item
set forth on the Approved Budget (on a line item basis) from those
disbursements and other amounts reflected in the most recently
delivered thirteen (13) week cash flow forecast in the Approved
Budget for the corresponding periods (or, in the case of clauses
(ii) and (iii) and with respect to past periods that are not
covered in the most recently delivered thirteen (13) week cash flow
forecast in the Approved Budget, the latest thirteen (13) week cash
flow forecast in the Approved Budget that covers any such past
period), an explanation of the reason for any such variance and
compliance or non-compliance with the requirements set forth in
Section 6.01(c).

 


“Voting
Stock” means, with respect to any Person, Equity
Interests issued by such Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions)
of such Person, even though the right so to vote has been suspended
by the happening of such a contingency.

 

1.02 Other Interpretive
Provisions.

 


With
reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan
Document:

 

(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.

 

1.03 Accounting Terms.

 


Except
as otherwise specifically prescribed herein, all accounting terms
not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant
to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the
Borrower’s financial statements.

 

1.04 Times of Day.

 


Unless
otherwise specified, all references herein to times of day shall be
references to Mountain time (daylight or standard, as
applicable).

 



 

8







 





 


ARTICLE
II

 


THE LOANS

 

2.01 The Loans.

 

(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.

 

2.02 Borrowing of the
Loans.

 

(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).

 

2.03 Prepayments.

 

(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.

 



 

9







 





 

(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.

 


Notwithstanding
anything to the contrary in any Loan Document, all prepayments
under this Section 2.03(b) shall be accompanied by interest on the
principal amount prepaid through the date of
prepayment.

 

2.04 Repayment of
Loans.

 


The
Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of all Loans outstanding on such date,
together with all accrued and unpaid interest thereon, and any
outstanding fees and expenses or other Obligations, in each case,
payable in accordance with the Loan Documents. All payments (and
prepayments) of the Loans and accrued and unpaid interest thereon
must be made to the Lenders ratably according to the outstanding
balances of the Loans actually made by the respective Lenders.
Without limiting the foregoing, all Loan payments received by the
Lenders are subject to Section 2.08.

 

2.05 Interest.

 

(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.

 



 

10







 





 

2.06 Evidence of Debt.

 


The
Loans made by each Lender shall be evidenced by one or more
accounts or records (including the Registers maintained pursuant to
Section 9.06(c)) maintained by the Agent in its ordinary course of
business. Such accounts or records maintained by the Agent shall be
conclusive as to the amount of the Loans made by each Lender to the
Borrower and the interest and payments thereon, absent manifest
error. Any failure to so record or any error in the accounts or
records shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount actually
owing with respect to the Obligations. For the avoidance of doubt,
this Agreement is being executed as a “noteless” credit
agreement. However, at the request of any Lender at any time, the
Borrower agrees that it will prepare, execute and deliver to such
Lender a promissory note, in form and substance satisfactory to
such Lender and the Agent, payable to the order of such Lender and
its registered assigns (a “Note”). Thereafter, the
Loans evidenced by such Note and interest thereon shall at all
times (including after assignment permitted hereunder) be
represented by one or more Notes in such form payable to the order
of the payee named therein and its registered assigns.

 

2.07 Payments
Generally.

 


All
payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Lenders in Dollars and in
immediately available funds not later than 2:00 p.m. on the date
specified herein. All payments received by a Lender after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.

 



2.08            

Sharing of
Payments.






 


If any
Lender shall obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its
Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans
of other Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance
with the aggregate amount of principal and accrued interest on
their respective Loans; provided that if any such participations
are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without
interest. The Borrower consents to the foregoing.


 


ARTICLE
III

 



 
TAXES, YIELD PROTECTION AND
ILLEGALITY

 

3.01 Taxes.

 

(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.

 

3.02 Survival.

 


All of
the Borrower’s obligations under this Article III shall
survive repayment of all other Obligations hereunder, subject to
the limitations contained in this Article III.

 



 

11







 





 


ARTICLE
IV

 


CONDITIONS
PRECEDENT

 

4.01 Conditions to Closing and Funding of
Loans on the Closing Date.

 


The
effectiveness of this Agreement, and the obligations of the Lenders
to make the Initial DIP Loans on the Closing Date, shall be subject
to the satisfaction or waiver of the following conditions
precedent:

 

(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.

 

4.02 Conditions to Funding All
Loans.

 


The
obligations of the Lenders to make any Loans shall be subject to
the satisfaction or waiver of the following additional conditions
precedent:

 

(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.

 



 

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(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.

 


ARTICLE
V

 


REPRESENTATIONS AND
WARRANTIES

 


The
Borrower represents and warrants to the Agent and the Lenders as
follows:

 

5.01 Existence, Qualification and
Power.

 


The
Borrower (a) is duly organized or formed, validly existing and in
good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) upon entry of the DIP Order, has
all requisite organizational power and authority and all requisite
governmental licenses, authorizations, consents and approvals to
own, pledge, mortgage and operate its assets, to lease or sublease
its assets and to carry on its business and execute, deliver and
perform its obligations under the Loan Documents, and (c) is duly
qualified and is licensed and in good standing under the Laws of
each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such
qualification or license.

 

5.02 Authorization; No
Contravention.

 


Subject
to entry of the DIP Order, the execution, delivery and performance
by the Borrower of each Loan Document have been duly authorized by
all necessary company or other organizational action and do not (a)
contravene the terms of any of the Borrower’s Organization
Documents; (b) result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under
(i) any Material Contract to which the Borrower is a party or
affecting the Borrower or its properties or (ii) any order,
injunction, writ or decree of any Governmental Authority or any
arbitral award to which the Borrower or its property is subject;
(c) or violate any Law, except, in each case referred to in clause
(c), to the extent that such violation could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.

 

5.03 Governmental Authorization; Other
Consents.

 


Except
for the entry of the DIP Order, no material Permit, approval,
consent, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Borrower of this
Agreement or any other Loan Document other than those that have
already been obtained and are in full force and
effect.

 



 

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5.04 Binding Effect.

 


Upon
entry of the DIP Order, each Loan Document will have been duly
executed and delivered by the Borrower. Each Loan Document
constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting
the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings
in equity or at law).

 

5.05 No Material Adverse
Effect.

 

(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).

 

5.06 Litigation.

 


Except
for the Chapter 11 Case, there are no actions, suits, proceedings,
claims, disputes or investigations pending or, to the knowledge of
the Borrower, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or
against any of its properties or revenues including, without
limitation, any actions, suits, proceedings, claims, disputes or
investigations pending that (a) purport to affect or pertain to
this Agreement, any other Loan Document, or any of the transactions
contemplated hereby or thereby, or (b) if determined adversely,
could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.

 

5.07 Environmental
Compliance.

 

(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.

 

5.08 Insurance.

 


The
properties and business of the Borrower are insured with
financially sound and reputable insurance companies that are not
Affiliates of the Borrower, in such amounts, with such deductibles
and covering such risks as are customarily carried by prudent
companies of similar size and engaged in similar businesses and
owning similar properties in localities where the Borrower
operates, in all material respects. The insurance coverage of the
Borrower as of the Closing Date is outlined as to carrier and type
on Schedule 5.08. As of the Closing Date, all such insurance
coverage is in full force and effect and all premiums due in
respect of all insurance maintained by the Borrower have been paid,
to the extent such premiums were due on or before the Closing Date.
As of the date hereof, the Borrower has not received written notice
of violation or cancellation of any such insurance coverage and
there is no existing default or event which, with the giving of
notice or lapse of time or both, would constitute a default by any
insured thereunder.

 

5.09 Taxes.

 


The
Borrower has timely filed, or caused to be timely filed, with the
appropriate Governmental Authorities and in the appropriate
jurisdictions, all material federal, state, local and other Tax
returns and reports required to be filed, and have timely paid,
prior to the date on which any liability may be added thereto for
non-payment thereof, all material federal, state, local and other
Taxes levied or imposed upon it or its properties, income or assets
otherwise due and payable, except those which are being contested
in good faith by appropriate proceedings diligently conducted and
for which adequate reserves have been provided in accordance with
GAAP. All such returns and reports are true, correct, and complete
in all respects. No such Tax return or report is under audit or
examination by any Governmental Authority and no notice of such a
Tax audit or examination or any assertion of any claim for Taxes
has been given or made by any Governmental Authority. The Borrower
is not presently under audit or examination with respect to any
taxes due from it.

 

5.10 Disclosure.

 


The
Borrower has disclosed to the Agent and the Lenders all matters
known to it (including with respect to all agreements, instruments
and corporate or other restrictions to which it is subject) that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No representation or warranty
made by the Borrower in this Agreement or any other Loan Document,
and no report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on
behalf of the Borrower to the Agent or the Lenders in connection
with the transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein (as applicable),
in light of the circumstances when made, not
misleading.

 



 

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5.11 Compliance with Laws and
Agreements.

 


Except
for the matters disclosed on Schedule 5.11, the Borrower is in
compliance, in all material respects, with the requirements of all
Laws and all orders, writs, injunctions and decrees binding upon it
and its properties.

 

5.12 Labor Matters.

 


There
are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower. As of the date hereof, the
Borrower is in compliance in all material respects with all Laws
relating to labor and employment.

 

5.13 Anti-Terrorism Laws; Anti-Corruption
Laws; Anti-Money-Laundering Laws; and Sanctions.

 


The
Borrower and its directors, officers and employees, and, to the
knowledge of the Borrower, its agents, are in compliance in all
material respects with Anti-Corruption Laws, Anti-Money Laundering
Laws, Anti-Terrorism Laws and Sanctions. The Borrower has not
caused any of its Subsidiaries, or any of their respective
directors, officers and employees, or, to the knowledge of the
Borrower, agents, to be out of compliance in any material respect
with Anti-Corruption Laws, Anti-Money Laundering Laws,
Anti-Terrorism Laws or Sanctions.

 

5.14 Reorganization
Matters.

 

(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).

 


ARTICLE
VI

 


AFFIRMATIVE
COVENANTS

 


So long
as Lenders shall have any Additional DIP Commitment hereunder, or
any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied (other than contingent indemnification obligations for
which no underlying claim has been asserted) the Borrower
shall:

 

6.01 Certificates; Other
Information.

 


Deliver
to the Agent and the Lenders, in form and detail reasonably
satisfactory to the Agent:

 

(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;

 



 

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(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.

 


Documents
required to be delivered pursuant to this Section 6.01 may be
delivered electronically; provided that the Borrower shall deliver
paper copies of such documents to the Agent and the Lenders if the
Agent so requests.

 

6.02 Notices.

 


Upon
any Responsible Officer of the Borrower becoming aware
thereof:

 

(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.

 


Each
notice pursuant to this Section 6.03(a) through (e) shall be
accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.02(a) shall
describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been
breached.

 

6.03  Payment of Taxes and Other
Obligations.

 

(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.

 

6.04 Preservation of
Existence.

 

(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.

 



 

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6.05 Maintenance of Properties and
Leases.

 


Except
to the extent subject to the automatic stay of section 362 of the
Bankruptcy Code, excused by the Bankruptcy Code, or caused by the
filing, commencement and continuation of the Chapter 11 Case,
consistent with the Approved Budget:

 

(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.

 

6.06 Maintenance of
Insurance.

 

(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.

 

6.07 Compliance with
Laws.

 

(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.

 

6.08 Books and Records.

 

(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.

 

6.09 Inspection Rights.

 


Permit
representatives and independent contractors on behalf of the Agent
to visit and inspect any of properties of the Borrower, to examine
its corporate, financial and operating records, and to make copies
thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers and independent
public accountants, all at the expense of the Borrower and, unless
an Event of Default exists, at such reasonable times during normal
business hours, at reasonable intervals and upon reasonable advance
written notice to the Borrower.

 



 

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6.10 Use of Proceeds.

 


Use the
proceeds of the Loans only in accordance with the Approved Budget
(subject to variances permitted by Section 7.22). Notwithstanding
the foregoing, no portion of proceeds of the Loans or the Carve-Out
may be used in connection with the investigation (including
discovery proceedings), initiation or prosecution of any claims,
causes of action, adversary proceedings or other litigation against
the Agent, the Lenders or their respective Affiliates. No proceeds
of the Loans may be used in violation of any applicable
Laws.

 

6.11 Environmental
Compliance.

 


Comply
in all material respects with all applicable Environmental
Laws.

 

6.12 Further
Assurances.

 


At the
reasonable request of the Agent at any time and from time to time,
the Borrower shall, at its expense, duly execute and deliver, or
cause to be duly executed and delivered, such further agreements,
documents and instruments as the Agent may reasonably deem to be
necessary to effectuate the provisions or purposes of this
Agreement or any of the other Loan Documents.

 

6.13 Milestones.

 


The
Borrower shall satisfy or cause to be satisfied each of the
Milestones as of the applicable deadline specified therefor on
Schedule 4.02(g), unless extended or waived in writing by the Agent
in its sole discretion.

 

6.14 Approved Budget.

 


The use
of Loans and other credit extensions by the Borrower under this
Agreement and the Loan Documents shall be in compliance with the
Approved Budget (subject to variances permitted by Section 7.22).
The Agent and the Lenders (i) may assume that the Borrower will
comply with the Approved Budget, (ii) shall have no duty to monitor
such compliance and (iii) shall not be obligated to pay any unpaid
expenses incurred or authorized to be incurred pursuant to any
Approved Budget. The line items in the Approved Budget for payment
of expenses and other amounts to the Lenders and/or the Agent are
estimates only, and the Borrower remains obligated to pay any and
all Obligations in accordance with the terms of the Loan Documents
and the DIP Order regardless of whether such amounts exceed such
estimates. Nothing in any Approved Budget shall constitute an
amendment or other modification of any Loan Document or any of the
borrowing restrictions or other lending limits set forth
therein.

 


ARTICLE
VII

 


NEGATIVE COVENANTS

 


So long
as any Lender shall have any Additional DIP Commitment hereunder,
or any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied (other than contingent indemnification obligations for
which no underlying claim has been asserted), the Borrower shall
not, directly or indirectly:

 

7.01 Liens.

 


Create,
incur, assume or suffer to exist any Lien upon any of its property,
assets (including, for the avoidance of doubt, the equity interests
that it holds in its Subsidiaries) or revenues, whether now owned
or hereafter acquired, other than the following (collectively
“Permitted
Liens”):

 

(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.

 



 

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7.02 Investments.

 


Make
any Investments, except:

 

(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.

 

7.03 Indebtedness.

 


Create,
incur, assume or suffer to exist any Indebtedness,
except:

 

(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.

 


Notwithstanding
anything herein to the contrary, the Borrower may not incur any
Indebtedness that is pari passu or senior to the Obligations or the
obligations under this Agreement in right of payment or
security.

 

7.04 Fundamental
Changes.

 


Except
as contemplated by the Restructuring Support Agreement, merge,
dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, without
the prior written consent of the Agent except as contemplated by
the Restructuring Support Agreement.

 

7.05 Dispositions.

 


Make
any Disposition, other than Permitted Dispositions, or permit any
Subsidiary of the Borrower to make any sale, transfer, license,
lease or other disposition of all or substantially all of its
assets.

 

7.06 Restricted
Payments.

 


Declare
or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so.

 

7.07 Transactions with Affiliates and
Insiders.

 


Enter
into or permit to exist any transaction or series of transactions
with any officer, director, employee or Affiliate of the Borrower
other than (a) transactions expressly permitted by Section 7.02(b),
(b) compensation payments expressly permitted by Section 7.18, and
(c) except as otherwise specifically limited in this Agreement,
other transactions which are entered into in the ordinary course of
the Borrower’s business on terms and conditions as favorable
to the Borrower as would be obtainable by it in a comparable
arms-length transaction with a Person other than an officer,
director, employee or Affiliate; provided however, the parties
acknowledge that the Minority Lender is an Affiliate of Borrower
and his participation in the transactions contemplated by this
Agreement do not, and will not, constitute a violation of this
Section 7.07.

 



 

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7.08 Burdensome
Agreements.

 


Except
for the transactions expressly contemplated by this Agreement or
the Restructuring Support Agreement, enter into, or permit to
exist, any Contractual Obligation that encumbers or restricts the
ability of the Borrower to act as the Borrower pursuant to the Loan
Documents or any renewals, refinancings, exchanges, refundings or
extensions thereof.

 

7.09 Amendments to Indebtedness; Material
Contracts.

 

(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.

 

7.10 Amendments to Material Documents;
Fiscal Year; Legal Name.

 

(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.

 

7.11 [Reserved].

 

7.12 Speculative
Transactions.

 


Engage
in any transaction involving commodity options or swap contracts or
any similar speculative transactions, which are, in any case,
inconsistent with prior practice and not otherwise made in the
ordinary course of business.

 

7.13 Formation of
Subsidiaries.

 


Acquire,
organize, or form any new Subsidiary.

 

7.14 Prepayment of
Indebtedness.

 


At any
time, directly or indirectly, make any payment or prepayment or
redemption of any Indebtedness or repurchase, redeem, retire or
otherwise acquire any Indebtedness of the Borrower except (a) the
Obligations and (b) regularly scheduled or required repayments or
redemptions of Permitted Indebtedness as expressly provided for in
the Approved Budget.

 

7.15 Sanctions.

 

(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.

 

7.16 Anti-Corruption
Laws.

 


Permit
any Loan or the proceeds of any Loan, directly or indirectly, to be
used, lent, contributed or otherwise made available in furtherance
of an offer, payment, promise to pay, or authorization of the
payment or giving of money, or anything else of value, to any
Person in violation of any Anti-Corruption Law, including the
United States Foreign Corrupt Practices Act of 1977, as
amended.

 



 

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7.17 Capital
Expenditures.

 


Make
any Capital Expenditure other than in accordance with the Approved
Budget.

 

7.18 Affiliate
Compensation.

 


Pay any
compensation or other payments to any officer, director or employee
of the Borrower or any Affiliate of the Borrower other than as
expressly provided for in the Approved Budget.

 

7.19 Chapter 11 Claims.

 

(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.

 

7.20 Amendments to the DIP
Order.

 


Amend,
supplement or otherwise modify the DIP Order without the express
prior written consent of the Agent, in its sole
discretion.

 

7.21 Communications with Bankruptcy
Court.

 


Fail to
(a) provide prior notice to the Agent and its counsel of any
communications, whether oral or written, with the Bankruptcy Court,
to allow for Agent and its counsel to participate in such
communications, (b) permit the Agent and its counsel to participate
in any communications, whether oral or written, involving the
Debtor with the Bankruptcy Court, or (c) to the extent reasonably
practicable, provide the Agent with copies of all motions or other
documents to be filed with the Bankruptcy Court prior to such
filing.

 

7.22 Budget Covenant.

 


Each
line item in the Approved Budget is subject to a permitted negative
variance of (i) 10% per week above the projected aggregate
disbursements set forth in the Approved Budget, (ii) 10% per week,
on disbursement on a by-line-item basis, and (iii) 10% per
four-week period, then ending, on the revenue set forth in the
Approved Budget. Any unused amounts in the Approved Budget during
any one-week period may be carried forward to future weekly periods
and applied to any amount by which that same line-item, and only
that same line-item, exceeds its projected use as set forth in the
Approved Budget, such that the cumulative-to-date budgeted amount
for each line item is available without causing such future weekly
periods to exceed the allowable variance. Each line item in the
Approved Budget is subject to a maximum amount for each particular
week, as specified therein.

 


ARTICLE
VIII

 


EVENTS OF DEFAULT AND
REMEDIES

 

8.01 Events of Default.

 


Any of
the following shall constitute an “Event of
Default”:

 

(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

 



 

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(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;

 



 

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(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.

 

8.02 Remedies Upon Event of
Default.

 


If any
Event of Default occurs and is continuing, the Agent, on behalf of
the Lenders, may take any or all of the following
actions:

 

(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.

 


Upon
termination of the Notice and Cure Period, the automatic stay
pursuant to section 362 of the Bankruptcy Code shall be
automatically terminated without further notice or order of the
Bankruptcy Court, unless the Agent elects otherwise in a written
notice to the Debtor, and the Agent shall be permitted to exercise
all rights and remedies set forth in the DIP Order and the Loan
Documents, and as otherwise available at law without further order
or application or motion to the Bankruptcy Court, and without
restriction or restraint by any stay under Bankruptcy Code sections
362 or 105 or otherwise. In the event that any party requests a
hearing seeking to prevent the Agent from exercising any of its
rights and remedies that arise after an Event of Default, the sole
issue before the Bankruptcy Court at such hearing shall be whether
an Event of Default has occurred and has not been cured. No other
issue or argument shall be relevant to any opposition to
enforcement of the Agent’s rights.

 

8.03 Application of
Funds.

 


After
the exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable), any
amounts received on account of the Obligations shall be applied by
the Agent in the following order:

 


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
to the Agent;

 



 

23







 





 


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 to the Lenders;

 


Third, to payment of that
portion of the Obligations constituting accrued and unpaid interest
on the Loans and fees, premiums and scheduled periodic payments,
and any interest accrued thereon;

 


Fourth, to payment of that
portion of the Obligations constituting unpaid principal of the
Loans; and

 


Last, the balance, if any,
after all of the Obligations have been indefeasibly paid in full,
to the Borrower or as otherwise required by Law.

 


For the
avoidance of doubt, all amounts applied to principal of and
interest on the Loans must be applied as among the Lenders ratably
according to the outstanding balances of the Loans actually made by
the respective Lenders.

 


ARTICLE
IX

 


MISCELLANEOUS

 

9.01 Amendments.

 


No
amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower
therefrom, shall be effective unless in writing signed by the
Agent, the Majority Lender and the Borrower, and each such waiver
or consent shall be effective only in the specific instance and for
the specific purpose for which given.

 

9.02 Notices and Other Communications;
Facsimile Copies.

 

(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.

 

9.03 No Waiver; Cumulative
Remedies.

 


No
failure by the Agent or any Lender to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.

 



 

24







 





 

9.04 Expenses; Indemnity; Damage
Waiver.

 

(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.

 

9.05 Payments Set
Aside.

 


To the
extent that any payment by or on behalf of the Borrower is made to
the Agent or any Lender, or the Agent or any Lender exercises its
right of setoff, and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Agent or any Lender
in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief
Law or otherwise, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not
occurred.

 



 

25







 





 

9.06 Successors and
Assigns.

 

(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.

 

9.07 Set-off.

 


If an
Event of Default shall have occurred and be continuing, the Agent,
each Lender and their respective Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by
applicable Law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held
and other obligations at any time owing by the Agent, such Lender
or any such Affiliate, as applicable, to or for the credit or the
account of the Borrower against any and all of the obligations of
the Borrower now or hereafter existing under this Agreement or any
other Loan Document to the Agent or such Lender, as applicable,
irrespective of whether or not the Agent or such Lender, as
applicable, shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower
may be contingent or unmatured. The rights of the Agent, each
Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of
setoff) that the Agent, such Lender and their respective Affiliates
may have. The Agent and each Lender agrees to notify the Borrower
promptly after any such setoff and application by it, provided that
the failure to give such notice shall not affect the validity of
such setoff and application.

 

9.08 Interest Rate
Limitation.

 


Notwithstanding
anything to the contrary contained in any Loan Document, the
interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by
applicable Law (the “Maximum Rate”). If any
Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the
Loans or, if it exceeds such unpaid principal, refunded to the
Borrower. In determining whether the interest contracted for,
charged, or received by a Lender exceeds the Maximum Rate, such
Lender may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee,
or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations
hereunder.

 



 

26







 





 

9.09 Counterparts; Integration;
Effectiveness.

 


This
Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute
a single contract. This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements
and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Article IV, this Agreement shall
become effective when it shall have been executed by the Agent, the
Lenders and the Borrower. Delivery of an executed counterpart of a
signature page of this Agreement by email shall be effective as
delivery of a manually executed counterpart of this
Agreement.

 

9.10 Survival of Representations and
Warranties.

 


All
representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and
delivery hereof and thereof. Such representations and warranties
have been or will be relied upon by the Agent and the Lenders,
regardless of any investigation made by the Agent or any Lender or
on its behalf and notwithstanding that the Agent or any Lender may
have had notice or knowledge of any Default at the time of the
making of any Loan, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied.

 

9.11 Severability.

 


If any
provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity
and enforceability of the remaining provisions of this Agreement
and the other Loan Documents shall not be affected or impaired
thereby, and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions, the economic effect of which
comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render
unenforceable such provision in any other
jurisdiction.

 

9.12 GOVERNING LAW;
JURISDICTION.

 

(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.

 



 

27







 





 

9.13 WAIVER OF RIGHT TO TRIAL BY
JURY.

 


EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.

 

9.14 No Advisory or Fiduciary
Relationship.

 


In
connection with all aspects of each transaction contemplated hereby
(including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower
acknowledges and agrees that: (a)(i) the arranging and other
services regarding this Agreement provided by the Agent and the
Lenders are arm’s-length commercial transactions between the
Borrower, on the one hand, and the Agent and the Lenders, on the
other hand, (ii) the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent they have
deemed appropriate, and (iii) the Borrower is capable of
evaluating, and understand and accept, the terms, risks and
conditions of the transactions contemplated hereby and by the other
Loan Documents; (b)(i) the Agent and each Lender is and has been
acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not and will not
be acting as an advisor, agent or fiduciary, for the Borrower and
(ii) the Agent and each Lender has no obligation to the Borrower
with respect to the transactions contemplated hereby, except those
obligations expressly set forth herein and in the other Loan
Documents to which it is a party; and (c) the Agent, each Lender
and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the
Borrower, and the Agent and each Lender has no obligation to
disclose any of such interests to the Borrower. To the fullest
extent permitted by law, the Borrower hereby waives and releases
any claims that it may have against the Agent or any Lender with
respect to any breach or alleged breach of agency or fiduciary duty
in connection with any aspect of this Agreement, any Loan Document
and any transaction contemplated hereby or thereby.

 

9.15 Conflict.

 


In the
event of a conflict between this Agreement and the DIP Order, the
DIP Order shall govern.


 



ARTICLE X  





AGENT
PROVISIONS


 

10.01   
Authorization and
Action.


 

(a)   
Each Lender hereby irrevocably appoints the Majority Lender to
serve as the Agent under the Loan Documents, and each Lender
authorizes the Agent to take such actions as agent on its behalf
and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent under such agreements and
to exercise such powers as are reasonably incidental
thereto.


 

(b)   
As to any matters not expressly provided for herein and in the
other Loan Documents (including with respect to enforcement or
collection), the Agent shall not be required to exercise any
discretion or take any action. Without limiting the foregoing, the
Agent shall not be required to take any action that (i) the Agent
in good faith believes exposes it to liability unless the Agent
receives an indemnification satisfactory to it from the Lenders
with respect to such action or (ii) is contrary to this Agreement
or any other Loan Document or applicable law, including any action
that may be in violation of the automatic stay under any
requirement of law relating to bankruptcy, insolvency or
reorganization or relief of debtors. Except as expressly set forth
in the Loan Documents, the Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower, or any Subsidiary or
Affiliate of the Borrower. Nothing in this Agreement or any other
Loan Document shall require the Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its
rights or powers.


 


(c)   
In performing its functions and duties hereunder and under the
other Loan Documents, the Agent is acting solely on behalf of the
Lenders, and its duties are entirely mechanical and administrative
in nature. Without limiting the generality of the foregoing, the
Agent does not assume and shall not be deemed to have assumed any
obligation or duty or any other relationship as the agent,
fiduciary or trustee of or for any Lender, other than as expressly
set forth herein and in the other Loan Documents, regardless of
whether a Default or an Event of Default has occurred and is
continuing (and it is understood and agreed that the use of the
term “agent” (or any similar term) herein or in any
other Loan Document with reference to the Agent is not intended to
connote any fiduciary duty or other implied (or express)
obligations arising under agency doctrine of any applicable law,
and that such term is used as a matter of market custom and is
intended to create or reflect only an administrative relationship
between contracting parties); additionally, each Lender agrees that
it will not assert any claim against the Agent based on an alleged
breach of fiduciary duty by the Agent in connection with this
Agreement and the transactions contemplated hereby.


 



 

28







 






 

10.02 
    Agent’s Reliance,
Indemnification, Etc.


 

(a)           
Neither the Agent nor any of its Affiliates shall be (i) liable for
any action taken or omitted to be taken by it under or in
connection with this Agreement or the other Loan Documents in the
absence of its own gross negligence or willful misconduct (such
absence to be presumed unless otherwise determined by a court of
competent jurisdiction by a final and nonappealable judgment) or
(ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the
Borrower or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder.


 

(b)           
The Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof (stating that it is a
“notice of default”) is given to the Agent by the
Borrower or a Lender, and the Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document or the
occurrence of any Default, (iv) the sufficiency, validity,
enforceability, effectiveness or genuineness of any Loan Document
or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in any Loan Document, other
than to confirm receipt of items expressly required to be delivered
to the Agent or satisfaction of any condition that expressly refers
to the matters described therein being acceptable or satisfactory
to the Agent.


            


10.3   
Acknowledgements of
Lenders.


 

(a)           
Each Lender represents that it has, independently and without
reliance upon the Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement as a
Lender, and to make, acquire or hold Loans hereunder. Each Lender
also acknowledges that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and
information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or
thereunder.


 

(b)           
Each Lender, by delivering its signature page to this Agreement on
the Closing Date, or delivering its signature page to an Assignment
and Assumption or any other Loan Document pursuant to which it
shall become a Lender hereunder, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan
Document and each other document required to be delivered to, or be
approved by or satisfactory to, the Agent or the Lenders on the
Closing Date.


 



10.05                       

Fees.






 


Borrower shall pay
to the Agent any agency or other fee(s) set forth, or to be set
forth from time to time, in any applicable fee letter between
Borrower and the Agent, on the terms set forth
therein.


 

 


[SIGNATURE
PAGES FOLLOW]

 







29








 






IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.

 

 


	
 

	
 BORROWER:







 


 


	

 

	
GENERAL
MOLY INC.

	

 


	

 

	

 

	

 

	

 


	

	
By:  

	
/s/ Thomas M.
Kim  

	

 


	

 

	

 

	
Name: Thomas M.
Kim

	

 


	

 

	

 

	

Title:
Chief
Restructuring Officer

	

 







 


 

 


 




Signature Page to
DIP Credit Agreement








 






 


AGENT:

 

 


	

NEW MOLY LLC

	

 


	

 

	

 

	

 


	
By:  

	
/s/ 
Mason Hills  

	

 


	

 

	
Name: Mason Hills
 

	

 


	

 

	

Title:
Manager

	

 






 


MAJORITY
LENDER:

 


	
NEW
MOLY LLC

	

 


	

 

	

 

	

 


	
By:  

	
/s/ Mason Hills
 

	

 


	

 

	
Name: Mason Hills
 

	

 


	

 

	

Title:
Manager
 

	

 






 


MINORITY
LENDER:

 


	
/s/ Bruce D.
Hansen


	
BRUCE
D. HANSEN






 


	
/s/ Bong T. Hansen


	
BONG
T. HANSEN






 

 




Signature Page to
DIP Credit Agreement








 






 


Schedule
4.02(g)


Milestones


 


 


 




1.

No later than three
Business Days after the Petition Date, the Bankruptcy Court shall
have entered the Interim Order approving the credit facilities
contemplated by this Agreement;






 




2.

No later than 25
days after the entry of the Interim Order, the Bankruptcy Court
shall have entered the Final Order approving the credit facilities
contemplated by this Agreement;






 




3.

No later than
December 4, 2020, the Debtor shall have filed its Plan of
Reorganization and Disclosure Statement, which shall reflect the
terms of the Restructuring Support Agreement;






 




4.

No later than
January 6, 2021, the Bankruptcy Court shall have held its hearing
and approved (subject to any final comments to resolve any
submitted objections) the Disclosure Statement.






 




5.

No later than
January 6, 2021, the Debtor, New Moly, POS-Mineral Corporation, and
Mount Hope Mines, Inc. shall have entered into definitive
documentation reflecting the commercial terms contemplated by the
Restructuring Support Agreement, which terms shall be described in
the Disclosure Statement approved by the Bankruptcy
Court.






 




6.

No later than
February 12, 2021, the Bankruptcy Court shall have entered its
order confirming the Plan of Reorganization.






 


 


 




 








 






 


Schedule
5.07


Environmental
Matters


 


None.


 


 




 








 






 


Schedule
5.08


Insurance


 


 


	


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







 


*
Borrower has paid $58,000 to extend these policies for two
additional months through April 1, 2021, but these extensions have
not yet been placed.


 




 








 






Schedule
5.11


Compliance
With Laws


 


Borrower
has not filed with the SEC (or any other governmental regulatory
agency or stock exchange) its Form 10-Q for the quarter ended
September 30, 2020 (due November 16, 2020) and does not intend to
make any future periodic filings (Forms 10-Q and Form 10-K) going
forward.


 




 








 






 


Schedule
7.01


Existing
Liens


 


None.


 




 








 






 


Schedule
7.02


Existing
Investments


 


 


The
Borrower is a publicly traded holding company with two non-debtor,
wholly owned subsidiaries, Kobeh Valley Ranch, LLC
(“KVR”) and Nevada Moly, LLC (“NMLLC”).
NMLLC owns an eighty percent (80%) joint venture interest in Eureka
Moly, LLC (“EMLLC”), the operator of molybdenum mining
project in Nevada commonly referred to as the Mt. Hope Project.
POS-Minerals, a subsidiary of POSCO (“POSCO”), a major
South Korean steel company, owns the remaining twenty percent (20%)
joint venture interest in EMLLC. KVR owns real property in central
Nevada commonly known as the Bobcat Ranch, and which property holds
associated water permits granted by the state of Nevada. KVR leases
these water rights to EMLLC for the Mt. Hope Project and its future
development and operation.


 




 








 






 


Schedule
7.03


Existing
Indebtedness


 


See
Official Form 206E/F filed by the Borrower in the Chapter 11
Case.




 








 






 


Schedule
9.02


Certain
Addresses for Notices


 


 


Borrower:


 


General
Moly, Inc.


c/o R.
Scott Roswell


Chief
Legal Officer


1726
Cole Boulevard, Suite 115


Lakewood,
Colorado 80401


 


With a
Copy to:


 


John F.
Young


Markus
Williams Young & Hunsicker LLC


1775
Sherman Street, Suite 1950


Denver,
Colorado 80203


 


 


Agent
and Majority Lender:


 


New
Moly LLC


c/o
Resource Capital Fund VI L.P.


1400
16th Street, Suite 200


Denver,
CO 80202


Attn:
General Counsel


Email:
RCFNotices@rcflp.com


 


Minority
Lender:


 


Bruce
D. Hansen and Bong T. Hansen


22284
Anasazi Way


Golden,
CO 80401




 








 







EXHIBIT A


 



FORM OF



BORROWING REQUEST


 


 



TO:            

New
Moly LLC, as Agent and Majority Lender






c/o
Resource Capital Fund VI L.P.


1400
16th Street, Suite 200


Denver,
CO 80202


Attn:
General Counsel


Email:
RCFNotices@rcflp.com


 


Bruce
D. Hansen and Bong T. Hansen, as Minority Lender


22284
Anasazi Way


Golden,
CO 80401


 



DATE: [_______], 20[__]


 


This
Borrowing Request is delivered pursuant to that certain Senior
Superpriority Debtor-In-Possession Credit Agreement, dated as of
November 18, 2020 (as it may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the
“DIP Credit
Agreement”), among General Moly Inc., a Delaware
corporation, as borrower (“Borrower”), Bruce D.
Hansen and Bong T. Hansen, individuals, jointly as joint tenants,
as a lender (collectively the “Minority Lender”), New
Moly LLC, a Delaware limited liability company, as a lender
(“Majority
Lender” and, together with the Minority Lender,
collectively the “Lenders” and each a
“Lender”), and Majority
Lender as administrative agent on behalf of the Lenders (in such
capacity, the “Agent”).


 


Unless
otherwise defined herein, capitalized terms used in this Borrowing
Request have the meanings assigned to such terms in the DIP Credit
Agreement.


 


This
Borrowing Request is irrevocable and represents the
Borrowers’ request to borrow, and the following information
is provided pursuant to Section 2.02(b) of the DIP
Credit Agreement.


 


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).


 


 

1. Date of Requested Borrowing (the
“Funding Date”):  [_____],
20[__]


 


2.
Amount of Requested
Loan:                                                                                                           $[____]


 


3. The
distribution of the Loan requested hereby may be made for the
credit of the Borrower to the Borrower’s account by wire
transfer of the funds to:


 


Name of
Bank:


Address
of Bank:


Account
Name:


Account
Number:                                           
/


Transit
Number:


ABA
Number:


            SWIFT
Code:


 


4. The
Borrower and the undersigned Responsible Officer each hereby
certifies that:


 


(a)           each
of the conditions precedent set forth in Article IV of the DIP
Credit Agreement have been and remain satisfied with respect to the
Loan requested hereby;


 


(b)           each
of the applicable Milestones required to be completed by the date
hereof pursuant to Section 4.02(g) has been completed;
and


 


(c)           the
proceeds of the Loan requested hereby will be applied solely to
payment of amounts reflected in the Approved Budget.


 

 


[signature
page to follow]

 




 








 






 

 


IN
WITNESS WHEREOF, this Borrowing Request has been duly executed and
delivered by a duly authorized Responsible Officer of the
undersigned as of the date first above written.

 


 

 
	

 

	
GENERAL
MOLY INC.

	

 


	

 

	

 

	

 

	

 


	

	
By:  

	



	

 


	

 

	

 

	
Name:


	

 


	

 

	

 

	

Its:


	

 










 


 

 




[Signature
page to Borrowing Request]








 







EXHIBIT B


 



INITIAL BUDGET


 


 




 








 







EXHIBIT C


 



RESTRUCTURING SUPPORT AGREEMENT


 



[See Exhibit 10.2.]