United states securities and exchange commission
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ARTICLE XIII AMENDMENT AND RESTATEMENT Section 13.01 No Novation . This Agreement does not extinguish, discharge or release the Existing Obligations outstanding under the Existing Financing Agreement, the Collateral Agent’s Liens securing the Existing Obligations or the priority of any mortgage, pledge, security agreement or any other security therefor. Nothing herein contained shall be construed as a
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substitution or novation of the Existing Obligations, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith. Nothing expressed or implied in this Agreement shall be construed as a release or other discharge of any Borrower or any other Loan Party under the Existing Financing Agreement and the Loan Documents entered into in connection therewith (such documents, collectively, the “ Existing Loan Documents ”) from any of its obligations and liabilities as a “Borrower,” a “Guarantor” or a “Loan Party” thereunder. Each Loan Party party hereto hereby (i) confirms and agrees that each Existing Loan Document to which it is a party is, and shall continue to be (including to the extent any such document is amended and restated in connection herewith on the Restatement Effective Date), in full force and effect and is hereby ratified and confirmed in all respects except that on and after the Restatement Effective Date all references in any such Existing Loan Document to “the Financing Agreement”, “thereto”, “thereof”, “thereunder” or words of like import referring to the Existing Financing Agreement shall mean the Existing Financing Agreement as amended and restated by this Agreement; and (ii) confirms and agrees that to the extent that any such Existing Loan Document purports to assign or pledge to the Collateral Agent, for the benefit of the Secured Parties, or to grant to the Collateral Agent, for the benefit of the Secured Parties, a Lien on any collateral as security for the Existing Obligations, such Lien is hereby ratified and confirmed in all respects and shall continue to secure the Obligations. Section 13.02 Acknowledgment of Existing Obligations and Continuation Thereof . Each Loan Party party hereto (i) consents to the amendment and restatement of the Existing Financing Agreement by this Agreement; (ii) acknowledges and agrees that (A) its obligations owing to the Existing Lenders under the Existing Financing Agreement, and (B) the prior grant or grants of Liens in favor of the Collateral Agent in its properties and assets, under each Existing Loan Document, and each other Loan Document to which it is a party shall be in respect of the obligations of such Loan Party under this Agreement and the other Loan Documents; (iii) reaffirms (A) all of its obligations owing to the Lenders, Agents or any of them under the Existing Loan Documents (including the Fee Letters), and (B) all prior grants of Liens in favor of the Collateral Agent under each Existing Loan Document; (iv) agrees that, except as expressly amended hereby or by any other amended and restated Loan Document, each of the Existing Loan Documents to which it is a party is and shall remain in full force and effect; and (v) understands and agrees that, notwithstanding the terms of this Agreement and the amendment and restatement of the Existing Financing Agreement effected hereby, nothing herein shall constitute a waiver of any breach of the terms of the Existing Financing Agreement by any Loan Party prior to the Restatement Effective Date. Without limiting the foregoing, the Borrowers acknowledge that, under the Existing Financing Agreement, the aggregate outstanding principal amount of the Existing Term Loan on the Restatement Effective Date (prior to the making of any additional loan on the Restatement Effective Date) is $73,445,312.50 and the amount of all unpaid and accrued interest on the Existing Term Loan as of the Restatement Effective Date is $1,381,740.23. The Borrowers hereby confirm and agree that the Existing Obligations, from and after the Restatement Effective Date, without duplication, are Obligations owing and payable pursuant to this Agreement and the other Loan Documents as in effect from time to time, shall accrue interest thereon as specified in this Agreement, and shall continue to be secured by the Liens granted to the Collateral Agent under the applicable Loan Documents. Section 13.03 Estoppel . To induce the Agents and the Lenders to enter into this Agreement and to continue to maintain Loans to the Borrowers hereunder, each Loan Party party
- 139 - hereto hereby acknowledges and agrees that, as of the Restatement Effective Date and to such Loan Party’s knowledge, there exists no right of offset, defense or counterclaim in favor of such Borrower as against any Agent or Lender with respect to the Obligations or the Existing Financing Agreement or the Existing Loan Documents. Section 13.04 Release . On the Restatement Effective Date, each Borrower and each other Loan Party hereby acknowledges, on its own behalf, and on behalf of their respective employees, agents, officers, directors, successors, and assigns, that it does hereby fully, unconditionally, and irrevocably forever relieve, relinquish, release, waive, discharge, and hold harmless the Administrative Agent and the Collateral Agent under the Existing Financing Agreement and each Existing Lender thereunder, and their respective current and former shareholders, directors, officers, employees, agents, attorneys, successors, and assigns of and from any and all claims, debts, actions, causes of action, liabilities, demands, obligations, promises, acts, agreements, costs, expenses (including but not limited to reasonable attorneys’ fees) and damages of whatsoever kind and nature, incurred on or prior to the Restatement Effective Date, whether now known or unknown, based upon, resulting from, arising out of or in connection with the Existing Financing Agreement or any other Existing Loan Document, the administration of the Loans by the Agents and the Lenders under the Existing Financing Agreement, or in any way connected with or relating to the administration or collection thereof and/or collateral therefor or guaranties thereof. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 140 - IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TPI Amended and Restated Financing Agreement
TPI Amended and Restated Financing Agreement
TPI Amended and Restated Financing Agreement
TPI Amended and Restated Financing Agreement
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