NOTE FUNDING AGREEMENT Dated as of March 12, 2007 among
Execution
Copy
Dated
as
of March 12, 2007
among
NEXCEN
ACQUISITION CORP.,
as
Issuer,
THE
SUBSIDIARY BORROWERS PARTIES HERETO,
as
Co-Issuers,
VICTORY
RECEIVABLES CORPORATION,
as
Lender
and
BTMU
CAPITAL CORPORATION,
as
Agent
____________________
Relating
to
NEXCEN
ACQUISITION NOTES
____________________
TABLE
OF CONTENTS
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Page
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DEFINITIONS
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1
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Section
1.1.
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Definitions
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1
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Section
1.2.
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Other
Definitional Provisions
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1
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SECTION
II.
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TERMS
OF BORROWINGS
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1
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Section
2.1.
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Borrowings
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2
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Section
2.2.
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Fees,
Expenses, Payments, Etc
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2
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Section
2.3.
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Funding
Termination Event
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3
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Section
2.4.
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Additional
Borrowers.
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3
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SECTION
III.
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CONDITIONS
PRECEDENT
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3
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Section
3.1.
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Conditions
to Closing
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3
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Section
3.2.
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Conditions
to each Borrowing
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4
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SECTION
IV.
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REPRESENTATIONS
AND WARRANTIES
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6
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Section
4.1.
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Representations
and Warranties of the Issuers
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6
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SECTION
V.
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COVENANTS
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8
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Section
5.1.
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Covenants
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8
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SECTION
VI.
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MISCELLANEOUS
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11
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Section
6.1.
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Amendments
and Waivers
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11
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Section
6.2.
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Notices
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12
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Section
6.3.
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No
Waiver; Cumulative Remedies
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12
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Section
6.4.
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Successors
and Assigns
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13
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Section
6.5.
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Counterparts
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13
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Section
6.6.
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Severability
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13
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Section
6.7.
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Integration
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13
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Section
6.8.
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Governing
Law
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13
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Section
6.9.
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Termination
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13
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Section
6.10.
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No
Proceedings
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13
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Section
6.11.
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Survival
of Representations and Warranties
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14
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Section
6.12.
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Submission
to Jurisdiction; Waivers
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14
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Section
6.13.
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WAIVERS
OF JURY TRIAL
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14
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Section
6.14.
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Hedging
Requirements
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15
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Section
6.15.
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Confidentiality
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15
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ANNEX
A
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Standard
Definitions
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EXHIBIT
A
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Form
of Joinder Supplement
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EXHIBIT
B
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Form
of Borrowing Notice
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i
This
NOTE
FUNDING AGREEMENT (this “Agreement”),
is
dated as of March 12, 2007, and is by and among NEXCEN ACQUISITION CORP., a
Delaware corporation, (the “Issuer”),
the
Subsidiary Borrowers from time to time parties hereto (collectively, the
“Co-Issuers”
and
together with the Issuer, the “Issuers”),
VICTORY RECEIVABLES CORPORATION, a Delaware corporation, (the “Lender”),
and
BTMU CAPITAL CORPORATION, a Delaware corporation (the “Agent”).
WITNESSETH:
WHEREAS,
the Issuers and BTMU Capital Corporation, in its capacity as agent and secured
party (the “Agent”)
thereunder, are parties to a certain Security Agreement, dated as of March
12,
2007 (as the same may from time to time be amended or otherwise modified, the
“Security
Agreement”),
pursuant to which the Issuers have issued and secured their promissory notes
(the “Notes”);
WHEREAS,
Subsidiary Borrowers may, from time to time, subject to and in accordance with
the terms of the Security Agreement and this Agreement, request Borrowings,
to
finance a portion of the purchase price paid or to be paid by the Issuers in
connection with the acquisition of Assets with each such Borrowing to be
evidenced by a Note;
WHEREAS,
the Issuer shall, for the benefit of the Agent and the Holders of the Notes,
become a joint and several obligor with each Co-Issuer under the Notes;
and
WHEREAS,
the obligations of the Issuer and the Co-Issuers under the Notes shall be
secured as provided in the Security Agreement:
NOW
THEREFORE, in consideration of the mutual covenants herein contained, and other
good and valuable consideration, the receipt and adequacy of which are hereby
expressly acknowledged, the parties hereto agree as follows:
SECTION
I. DEFINITIONS
Section
1.1. Definitions.
Capitalized terms used but not defined herein shall have the meanings set forth
in the “Standard Definitions” attached hereto as Annex
A.
Section
1.2. Other
Definitional Provisions.
(1)
Unless
otherwise specified therein, all terms defined in this Agreement shall have
the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto.
(b) The
words
“hereof”, “herein”, and “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; and Section, subsection and Exhibit
references are to this Agreement, unless otherwise specified. The words
“including” and “include” shall be deemed to be followed by the words “without
limitation”.
1
SECTION
II. TERMS
OF
BORROWINGS
Section
2.1. Borrowings.
(2)
On and
subject to the terms and conditions (including, without limitation, the
conditions precedent set forth in Section III hereof) of this Agreement from
the
Closing Date and prior to the Facility Termination Date, the Lender agrees
to
advance the amount of each Borrowing requested by a Subsidiary Borrower at
any
time; provided
that in
no event shall the Lender be required on any date to make an advance that
exceeds the lesser of (i) the Available Borrowing Amount (determined prior
to
giving effect to such advance) and (ii) the Borrowing Base.
(b) Such
Borrowing shall be made available to the applicable Co-Issuer, or as such
Co-Issuer may direct, subject to the satisfaction of the conditions specified
in
Section 3.2 hereof, at or prior to 2:00 p.m. New York City time on the
applicable Funding Date by deposit of immediately available funds to an account
designated with Borrowing Notice by such Co-Issuer to the Agent.
(c) Each
Borrowing shall be made on prior notice from a Co-Issuer received by the Agent
(such notice, a “Borrowing
Notice”)
not
later than 10:00 a.m. New York City time on or before the third Business Day
preceding a proposed Funding Date. Each Borrowing Notice shall specify (i)
the
aggregate amount of the Borrowing, and (ii) the applicable Funding Date (which
shall be a Business Day), and shall be in substantially in the form attached
hereto as Exhibit
B.
(d) Each
Borrowing shall be evidenced by a new Note issued by the Issuer and applicable
Co-Issuers pursuant to the Security Agreement. Subject to the provisions of
Section 2.1(a) above and this paragraph (d), amounts under this Agreement and
the Security Agreement may be borrowed, repaid and reborrowed as a new Borrowing
from time to time prior to the Facility Termination Date; provided that the
aggregate Note Principal Balance of all Notes Outstanding at any one time shall
not be greater than $150,000,000.
(e) Payments
on the Notes shall be made to the Noteholders as provided in the Security
Agreement.
(f) The
Agent
shall keep records of each Borrowing, each Interest Period applicable thereto,
the interest rate(s) applicable to the Notes and each payment of principal
and
interest thereon. However, failure to keep such records shall not affect the
Issuers' obligations hereunder.
(g) Each
Borrowing is subject to the Agent 's approval.
Section
2.2. Fees,
Expenses, Payments, Etc.
(3)
The
Issuers shall be responsible for all reasonable legal fees and expenses and
all
other pre-approved out of pocket expenses in connection with the preparation,
execution, delivery and administration (including any requested amendments,
waivers or consents with respect to any of the Transaction Documents) of this
Agreement and the other Transaction Documents, and any other documents to be
delivered in connection herewith.
(b) In
connection with each Borrowing, the Issuer and the applicable Co-Issuers agree
to pay to the Lender on each Funding Date all legal fees and expenses and all
other pre-approved out of pocket expenses in connection with such Borrowing;
provided that,
in the
case of each Borrowing, the Lender shall endeavor in good faith, to obtain
internal approval to make such advance substantially in conformity with the
terms and conditions set forth herein and in the Security Agreement, and upon
the failure of the Lender to deliver written evidence of such approval to the
Issuer and the applicable Co-Issuers, then all costs incurred by each party
will
be for their own account with respect to such Borrowing.
2
(c) The
Issuer and the applicable Co-Issuers further agree to pay on demand any and
all
documentary, stamp, transfer and other taxes and governmental fees payable
in
connection with the execution, delivery, filing and recording of any of the
Transaction Documents or the other documents and agreements to be delivered
hereunder and thereunder or otherwise in connection with the issuance of the
related Note, and agree to save the Lender harmless from and against any
liabilities with respect to or resulting from any delay in paying or any
omission to pay such taxes and fees.
(d) All
payments to be made hereunder or under the Security Agreement, whether on
account of principal, interest, fees or otherwise, shall be made prior to 1:00
p.m. New York City time on the due date thereof to the accounts specified in
the
Security Agreement. Notwithstanding anything herein to the contrary, if any
payment due hereunder becomes due and payable on a day other than a Business
Day, the payment date thereof shall be extended to the next succeeding Business
Day and in the case of principal, interest shall accrue thereon at the
applicable rate during such extension.
Section
2.3. Funding
Termination Event.
If the
Agent has provided notice to the Issuer and each Co-Issuer that any Funding
Termination Event has occurred and is continuing, the Issuer and each Co-Issuer
shall make no further requests for Borrowings.
Section
2.4. Additional
Borrowers.
Any
Subsidiary Borrower which is an Eligible Borrower may from time to time become
a
party to this Agreement as a Co-Issuer party by entering into an agreement
substantially in the form attached hereto as Exhibit A hereto (a “Joinder
Supplement”) with the Agent and the Lender, which shall specify (A) the name and
address of such Person for receipt of notices hereunder and (B) the other
information provided for in such form of Joinder Supplement. Upon its receipt
of
a duly executed Joinder Supplement, such Subsidiary Borrower shall be a
Co-Issuer party to this Agreement and the other Transaction
Documents.
SECTION
III. CONDITIONS
PRECEDENT
Section
3.1. Conditions
to Closing.
The
following shall be conditions precedent to the Closing Date:
(a) This
Agreement and the other Transaction Documents shall have become effective in
accordance with their respective terms.
(b) All
of
the terms, covenants, agreements and conditions of this Agreement and the other
Transaction Documents to be complied with and performed by the Issuer by the
Closing Date shall have been complied with or otherwise waived by the
Agent.
3
(c) Each
of
the representations and warranties of the Issuer made in this Agreement and
in
the other Transaction Documents shall be true and correct as of the time of
the
Closing Date as though made as of such time (except to the extent that they
expressly relate to an earlier or later time).
(d) No
Funding Termination Event or event that with the giving of notice or lapse
of
time or both would constitute a Funding Termination Event shall have occurred
and be continuing.
(e) The
Agent
shall have received:
(i) Certified
copies of the resolutions of the Board of Directors of Issuer approving this
Agreement and the other Transaction Documents to which it is a party and any
other documents contemplated thereby and certified copies of all documents
evidencing other necessary corporate action and governmental approvals, if
any,
with respect to this Agreement and the other Transaction Documents to which
it
is a party and any other documents contemplated thereby;
(ii) An
Officer’s Certificate of the Issuer, certifying the names and true signatures of
the officers authorized to sign this Agreement and the other Transaction
Documents and any other documents to be delivered by it hereunder or
thereunder;
(iii) A
copy of
the limited liability agreement of the Issuer, certified by an officer thereof;
(iv) A
certificate as to the good standing of the Issuer from the Secretary of State
of
the State of Delaware, dated as of a recent date;
(v) A
favorable opinion of counsel to Issuer, dated the initial Funding Date, in
form
and substance satisfactory to the Agent;
(vi) Executed
copies of each of the Transaction Documents;
(vii) Evidence
that the Issuer Collection Account has been established and is subject to a
control agreement satisfactory to the Agent; and
(viii) Such
other documents, instruments, certificates and opinions as the Agent may
reasonably request.
(f) No
action, suit, proceeding or investigation by or before any Governmental
Authority shall have been instituted to restrain or prohibit the consummation
of, or to invalidate, the transactions contemplated by this Agreement or the
Transaction Documents.
Section
3.2. Conditions
to each Borrowing.
The
following shall be conditions precedent to any funding by the Lender on each
Funding Date (which conditions must be satisfied no later than 2:00 p.m. New
York City time on the Business Day immediately preceding such Funding Date;
by
accepting the proceeds of any Borrowing on any Funding Date, all Issuers shall
be deemed to represent and warrant that all such conditions (other than as
set
forth in clauses g(vii) and (m) below) are satisfied on such date):
4
(a) The
applicable Co-Issuers shall have timely delivered a Borrowing Notice pursuant
to
subsection 2.1(c) hereof.
(b) The
representations and warranties of the Issuer and the applicable Co-Issuers
as
set forth in each of the Transaction Documents shall be true and correct on
the
date of such Borrowing as though made on and as of such date (except where
such
representation or warranty specifically relates to any earlier date, in which
case such representation and warranty shall have been true and correct in all
material respects as of such earlier date).
(c) Both
immediately prior to and after giving effect to such Borrowing and the
application of the proceeds thereof as provided herein and in the Security
Agreement, the Outstanding Note Balance of the Notes shall not exceed the
Borrowing Base.
(d) The
ratio
of each Borrowing to the Net Cash Flow of the related Assets shall be no greater
than 5.00:1.00.
(e) The
collateral pledged to secure the Note issued in connection with the Borrowing
must include Trademarks, Licenses and other agreements monetizing the
Trademarks.
(f) No
Funding Termination Event or event that with the giving of notice or lapse
of
time or both would constitute a Funding Termination Event shall have occurred
and be continuing.
(g) The
Agent
shall have received:
(i) Evidence
that the customary financing statements and other documents have been, or will
be, filed in all jurisdictions that the Lender may deem necessary or desirable
(but only to the extent required under the Security Agreement) in order to
perfect the ownership and security interests contemplated by the Security
Agreement and this Agreement;
(ii) Acknowledgment
copies of proper termination statements, if any, necessary to release all
security interests and other rights of any Person in the Collateral other than
those of the Issuers and the Agent;
(iii) Executed
copies of the Joinder Supplement and the Security Agreement Supplement related
to such Borrowing;
(iv) Evidence
that the related Co-Issuer Collection Accounts and the related Co-Issuer Lockbox
Accounts have been established and are subject to control agreements
satisfactory to the Agent;
(v) Favorable
opinion or opinions of counsel to the Issuer, dated the applicable Funding
Date,
in form and substance satisfactory to the Agent;
5
(vi) Favorable
opinion or opinions of counsel to the applicable Co-Issuers, dated the
applicable Funding Date, in form and substance satisfactory to the
Agent;
(vii) Evidence
satisfactory to the Agent that the applicable Co-Issuers have good title to
the
Assets pledged under the Security Agreement free and clear of any liens;
and
(viii) Any
other
documentation required by the Agent in connection with such
Borrowing.
(h) The
Notes
have been duly executed by the applicable Co-Issuers.
(i) There
has
not been any change, or any development or event involving a prospective change
in the condition (financial or otherwise), business properties or results of
operations of the Issuer or the applicable Co-Issuers which, in the judgment
of
the Agent, is material and adverse and makes it impractical or inadvisable
to
proceed with the consummation of the transactions contemplated by this Agreement
or the Transaction Documents.
(j) The
Co-Issuer Collection Accounts, the Co-Issuer Prepaid Fee and Royalty Accounts
and the Co-Issuer Priority and Non-Distributable Amounts Accounts have been
established; and all Obligors have been directed to make payments of their
Receivables to the applicable Co-Issuer Collection Account or Co-Issuer Lockbox
Account.
(k) No
action, suit, proceeding or investigation by or before any Governmental
Authority shall have been instituted to restrain or prohibit the consummation
of, or to invalidate, the transactions contemplated by this Agreement or the
Transaction Documents.
(l) All
conditions specified in the Security Agreement with respect to such Borrowing
shall have been satisfied.
(m) The
Lender shall have completed its due diligence review of the acquisition of
Assets in connection with which the Issuer and the applicable Co-Issuers are
seeking the requested Borrowing and the Lender shall have received all requisite
internal management and credit committee approvals, it being understood that
the
Lender shall, in good faith, seek such approvals (but shall not be obligated
to
grant the same) and such approvals will be sought by the Lender on a
Borrowing-by-Borrowing basis, and may take into consideration, among other
things, performance and value of existing Assets of the Co-Issuers and the
Issuer.
(n) The
Agent
shall have received payment in respect of its structuring fee pursuant to that
certain letter agreement between the Agent and the Issuer.
SECTION
IV. REPRESENTATIONS
AND WARRANTIES.
Section
4.1. Representations
and Warranties of the Issuers.
The
Issuer hereby represents and warrants as of the Closing Date and each Funding
Date, and upon execution of a Joinder Supplement, the applicable Co-Issuers
hereby represent and warrant as of the applicable Funding Date,
that:
6
(a) It
is a
limited liability company or other entity validly existing and in good standing
under the laws of the State of its formation or organization, as the case may
be, with full power and authority under such laws to own its properties and
conduct its business as such properties are currently owned and such business
is
currently conducted and to execute, deliver and perform its obligations under
this Agreement and the other Transaction Documents to which it is a
party.
(b) It
has
the power, authority and right to make, execute, deliver and perform this
Agreement and the other Transaction Documents to which it is a party and all
the
transactions contemplated hereby and thereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement and
the
other Transaction Documents to which it is a party. When executed and delivered,
each of this Agreement and the other Transaction Documents to which it is a
party will constitute its legal, valid and binding obligations, enforceable
in
accordance with their respective terms, subject, as to such enforceability,
to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
relating to or affecting creditors’ rights generally from time to time in
effect. The enforceability of its obligations under such agreements may also
be
limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(c) No
statute, rule, regulation or order shall have been enacted, entered or deemed
applicable by any government or governmental or administrative agency or court
that would make the transactions contemplated by any of the Transaction
Documents illegal or otherwise prevent the consummation thereof.
(d) No
consent, license, approval or authorization of, or registration with, any
Governmental Authority is required to be obtained in connection with the
execution, delivery or performance of each of this Agreement and the other
Transaction Documents to which it is a party that has not been duly obtained
and
that is not and will not be in full force and effect on the Closing Date, except
such that may be required by applicable securities laws or UCC-1 financing
statements as have been prepared for filing.
(e) The
execution, delivery and performance of each of this Agreement and the other
Transaction Documents to which it is a party do not violate any provision of
its
Organizational Documents, any existing law or regulation applicable to it,
any
order or decree of any court to which it is subject, or require any notices
or
consents to be given or received by any Governmental Authority or other Person
(except those that have already been given or received) or violate, breach
or
constitute a default under, or any security agreement, contract or other
agreement to which it is a party or by which it or any of its properties is
bound.
(f) There
is
no litigation, investigation or administrative proceeding before any court,
tribunal or governmental body pending or, to its knowledge, threatened against
it, with respect to this Agreement, the other Transaction Documents to which
it
is a party, the transactions contemplated hereby or thereby, the issuance of
the
Notes or which could reasonably have a material adverse effect on the ability
of
the Issuers to perform their respective obligations under the Transaction
Documents.
7
(g) All
reports, statements, exhibits or other written information furnished by it
to
the Lender or the Agent pursuant to this Agreement or the other Transaction
Documents shall be true and correct in all material respects.
(h) The
Notes
shall have been duly and validly authorized, and, when executed in accordance
with the terms of the Security Agreement and delivered to and paid for in
accordance with this Agreement, will be duly and validly issued and outstanding,
and will be entitled to the benefits of the Security Agreement, this Agreement
and the other Transaction Documents.
(i) Each
of
the Transaction Documents to which it is a party is in full force and effect
and
no Funding Termination Event or Event of Default or other event or circumstance
has occurred thereunder or in connection therewith that could reasonably be
expected to result in the termination of any such agreement or any other
interruption of the ongoing performance by the Issuers of their respective
obligations thereunder.
(j) Any
taxes, fees and other charges of Governmental Authorities applicable to it,
except for franchise fees or income taxes, including those in connection with
the execution, delivery and performance by it of this Agreement and the other
Transaction Documents to which it is a party or otherwise applicable to it
in
connection with the transactions contemplated hereby or thereby have been paid
or will be paid at or prior to the applicable Funding Date to the extent then
due.
(k) With
respect to each Co-Issuer, it is an Eligible Borrower.
(l) The
Issuer and each applicable Co-Issuer repeat and reaffirm to the Lender and
the
Agent the representations and warranties set forth in Sections 12.9(f), (i)
and
(l) in the Security Agreement, and represent that such representations and
warranties are true and correct in all material respects.
(m) Since
the
prior Funding Date, there has been no change, development or event involving
a
change in the condition (financial or otherwise), business properties or results
of operations of the Issuer or any Co-Issuer which is material and adverse
and
makes it impractical or inadvisable to proceed with the consummation of the
transactions contemplated by this Agreement or the Transaction
Documents.
SECTION
V. COVENANTS
Section
5.1. Covenants.
The
Issuer and each Co-Issuer which has signed a Joinder Supplement, each solely
as
to itself, covenants and agrees with the Agent and the Lender, through the
Facility Termination Date and thereafter so long as any Secured Obligations
shall remain outstanding or any monetary obligation arising hereunder or under
the Security Agreement or any other Transaction Document shall remain unpaid,
unless the Agent shall otherwise consent in writing, that:
(a) it
shall
perform in all material respects each of the respective agreements applicable
to
it hereunder and comply in all material respects with each of the respective
terms and provisions applicable to it under the Transaction Documents to which
it is party;
8
(b) it
shall
furnish to the Agent (i) a copy of each opinion, certificate, report, statement,
notice or other communication relating to the Notes which is furnished by or
on
behalf of it to the other; and (ii) such other information, documents records
or
reports respecting the Collateral, the Issuer or such Co-Issuers, as the Agent
may from time to time reasonably request;
(c) it
shall
furnish to the Agent, promptly, and in any event, within 3 Business Days, after
the occurrence of any event which is, or upon the giving of notice, the lapse
of
time or both would be, a Funding Termination Event, a certificate of an
appropriate officer of the Issuer or such Co-Issuers, as the case may be,
setting forth the circumstances of such event and any action taken or proposed
to be taken by the Issuer or such Co-Issuers with respect thereto;
(d) it
shall
timely make all payments, deposits or transfers of Collections and give all
instructions to transfer required by this Agreement and the Security
Agreement;
(e) to
the
extent it has not previously done so, the Issuers shall instruct all Obligors
under the Collateral to cause all Collections to be deposited directly to the
appropriate Co-Issuer Lockbox Account or the appropriate Co-Issuer Collection
Account. Each of the Co-Issuers shall hold in trust, and deposit, immediately,
but in any event not later than two Business Days of its receipt thereof, to
its
related Co-Issuer Collection Account all Collections received from time to
time
by it from the Obligors under the Collateral;
(f) except
as
otherwise provided herein, neither the Issuer nor any Co-Issuer will sell,
assign (by operation of law or otherwise) or otherwise dispose of, or create
or
suffer to exist any Adverse Claim upon (or the filing of any financing
statement) or with respect to, its Assets, or upon or with respect to any
account to which any Collections of
the
Assets are sent, or assign any right to receive income in respect thereof,
except pursuant to the Transaction Documents;
(g) the
Issuers will not make any change in their respective instructions to Obligors
under the Collateral regarding payments to be made to the applicable Co-Issuer
Collection Account or Co-Issuer Lockbox Account, unless such instructions are
to
deposit such payments to another account approved in writing by the
Agent;
(h) none
of
the Issuer or any Co-Issuer will change its name, identity or structure or
its
chief executive office, unless at least 30 days prior to the effective date
of
any such change such person delivers to the Agent UCC financing statements
to
continue the perfection of the Agent’s interest in the Assets and written
authority to file the same;
(i) the
Issuer and each Co-Issuer shall properly disclose and account for the
transactions contemplated by the Transaction Documents as on balance sheet
transactions under and in accordance with GAAP;
9
(j) the
Issuer shall, and each Co-Issuer shall, and shall cause the Manager on such
Co-Issuer's behalf to, unless the Agent shall otherwise consent in writing:
(i) conduct
its business solely in its own name through its duly authorized officers or
agents so as not to mislead others as to the identity of the entity with which
such persons are concerned, and shall avoid the appearance that it is conducting
business on behalf of any Affiliate thereof or that its assets are available
to
pay the creditors of any other Person (other than as expressly provided herein);
(ii) maintain
corporate records and books of account separate from those of any other
Person;
(iii) establish
and maintain an office through which its business shall be conducted separate
and apart from those of its Affiliates or, if it shares office space with any
Affiliate, it shall allocate fairly and reasonably any overhead and expense
for
such shared office space;
(iv) conduct
its business using letterhead separate from those of its
Affiliates;
(v) obtain
proper authorization for all action requiring such authorization;
(vi) pay
its
own operating expenses and liabilities from its own funds;
(vii) continuously
maintain its resolutions, agreements and other instruments underlying the
transactions described in this Agreement and the other Transaction Documents
as
part of its official records;
(viii) maintain
an arm’s-length relationship with its Affiliates, except, with the respect to
the Issuer, in connection with any agreements with its parent pursuant to which
the parent contributes assets to the capital account of the Issuer, and shall
not hold itself out as being liable for the debts of any other Person, except
as
permitted by this Agreement and the other Transaction Documents;
(ix) keep
its
assets and liabilities separate from those of all other entities other than
as
permitted herein, and as permitted by this Agreement and the other Transaction
Documents;
(x) not
maintain bank accounts or other depository accounts to which any Affiliate
is an
account party or from which any Affiliate has the power to make withdrawals,
except as permitted by this Agreement and the other Transaction
Documents;
(xi) not
amend, supplement or otherwise modify its organizational documents, except
in
accordance therewith and with the prior written consent of the
Agent;
10
(xii) not
create, incur, assume or suffer to exist any indebtedness or other liabilities
(other than any deferred income in accordance with GAAP) on which it is
obligated, except under this Agreement and the other Transaction Documents.
It
shall not assume, guarantee, endorse or otherwise be or become directly or
contingently liable for the obligations of any Person by, among other things,
agreeing to purchase any obligation of another Person (other than the Assets),
agreeing to advance funds to such Person or causing or assisting such Person
to
maintain any amount of capital, except as permitted by this Agreement and the
other Transaction Documents. It shall not be party to any agreement, mortgage,
deed of trust or other instrument other than this Agreement and the other
Transaction Documents other than, in the case of a Co-Issuer, Licenses and
preferred vendor agreements (so long as such preferred vendor agreements impose
no obligations whatsoever on the Issuer) in the ordinary course of business
and
as otherwise permitted under the Transaction Documents, and, in the case of
the
Issuer, other than any contribution agreements pursuant to which assets are
contributed to the capital account of the Issuer, so long as such agreement
does
not contain any obligations of the Issuer (and other than pursuant to the Asset
Purchase Agreement to the extent covered fully by the Contribution
Agreement);
(xiii) not
enter
into, or be a party to any transaction with any of its Affiliates, except as
set
forth in this Agreement and the other Transaction Documents;
(xiv) have
at
all times an Independent Director; provided
that the
same individual may act as Independent Director for any Co-Issuer;
(xv) observe
all procedures required by its organizational documents and preserve and
maintain its existence, rights, franchises and privileges in the jurisdiction
of
its formation and qualify and remain qualified in good standing in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualifications would materially adversely affect
the
interests hereunder of the Lender or its ability to perform its obligations
hereunder; and
(xvi) not
make
or suffer to exist any loans or advances to, or extend any credit to, or make
any investments (by way of transfer of property, contributions to capital,
purchase of stock or securities or evidences of indebtedness (other than the
Assets), acquisition of the business or assets (other than in connection with
the Transaction Documents), or otherwise) in, any Affiliate or any other Person,
all except as otherwise permitted in this Agreement and the other Transaction
Documents;
(k) comply
with each agreement or other instrument to which it is a party.
(l) any
written information, reports and other papers and data furnished to the Agent,
with respect to the Issuer or a Co-Issuer, shall be, at the time the same is
so
furnished, true and correct in all material respects.
SECTION
VI. MISCELLANEOUS
Section
6.1. Amendments
and Waivers.
This
Agreement may not be amended, supplemented or modified nor may any provision
hereof be waived except in accordance with the provisions of this Section 6.1.
With the written consent of the Agent, the Co-Issuers and the Issuer may, from
time to time, enter into written amendments, supplements, waivers or
modifications hereto for the purpose of adding any provisions to this Agreement
or changing in any manner the rights of any party hereto or waiving, on such
terms and conditions as may be specified in such instrument, any of the
requirements of this Agreement. Any waiver of any provision of this Agreement
shall be limited to the provisions specifically set forth therein for the period
of time set forth therein and shall not be construed to be a waiver of any
other
provision of this Agreement.
11
Section
6.2. Notices.
(a) All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when
delivered by hand, or, in the case of mail or telecopy notice, when received,
addressed as follows or to such other address as may be hereafter notified
by
the respective parties hereto:
|
The
Issuer:
|
NEXCEN
ACQUISITION CORP.
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
The
Lender:
|
VICTORY
RECEIVABLES CORPORATION
|
|
Victory
Receivables Corporation
|
|
|
▇/▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇., ▇▇▇ ▇▇▇▇ Branch
|
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
(with
a copy to the Agent)
|
|
|
A
Co-Issuer:
|
To
the address set forth in each Joinder Supplement
|
|
(with
a copy to the Agent)
|
|
|
The
Agent:
|
BTMU
CAPITAL CORPORATION
|
|
BTMU
Capital Corporation
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
(b) Unless
otherwise directed by the Agent, all payments to it required pursuant to this
Agreement shall be made by federal wire (ABA No.: 021-001-033); to account
number: ▇▇▇▇▇▇▇▇; bank name: Deutsche Bank Trust Company Americas; account
name:
Corporate Trust & Agency Services; with fax notice (including federal wire
number) to ▇▇▇▇▇▇ ▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇ and phone: (▇▇▇)
▇▇▇-▇▇▇▇.
Section
6.3. No
Waiver; Cumulative Remedies.
No
failure to exercise and no delay in exercising, on the part of the Agent, any
right, remedy, power or privilege under this Agreement or any of the Transaction
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under this Agreement or any
of
the Transaction Documents preclude any other or further exercise thereof or
the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges provided in this Agreement and the other Transaction
Documents are cumulative and not exclusive of any rights, remedies, powers
and
privileges provided by law.
12
Section
6.4. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the Issuer, each
Co-Issuer, the Agent and the Lender, and their respective successors and
assigns, except that neither the Issuer nor any Co-Issuer may assign or transfer
any of their respective rights or obligations under this Agreement except as
provided herein and in the Security Agreement without the prior written consent
of the Agent.
Section
6.5. Counterparts.
This
Agreement may be executed by one or more of the parties to this Agreement on
any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
Section
6.6. Severability.
Any
provisions of this Agreement which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in
any
other jurisdiction.
Section
6.7. Integration.
This
Agreement represents the agreement of the Issuer, each Co-Issuer, the Lender
and
the Agent with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by such parties relative to subject
matter hereof not expressly set forth or referred to herein or
therein.
Section
6.8. Governing
Law.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAW
OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK.
Section
6.9. Termination.
This
Agreement shall remain in full force and effect until the payment in full of
the
principal of and interest on the Notes and all other Secured
Obligations.
Section
6.10. No
Proceedings.
(a) The
Issuer and each Co-Issuer agrees that it shall not institute or join any other
Person in instituting against the Lender, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or similar proceeding under
any federal or state bankruptcy law, for one year and a day after the
termination of the Security Agreement.
(a) Notwithstanding
any provisions contained in this Agreement to the contrary, the Lender shall
not
be obligated to pay any amount pursuant to this Agreement unless (i) the Lender
has received funds which may be used to make such payment and which funds are
not required to repay its commercial paper when due and (ii) after giving effect
to such payment, either (A) the Lender could issue commercial paper to refinance
all of its outstanding commercial paper (assuming such outstanding commercial
paper matured at such time) in accordance with the program documents governing
the Lender's securitization program or (B) all of its commercial paper is paid
in full. Any amount the Lender does not pay pursuant to the operation of the
preceding sentence shall not constitute a claim (as defined in § 101 of the
Bankruptcy Code) against or corporate obligation of the Lender for any such
insufficiency unless and until the Lender satisfies the provisions of
clauses
(i)
and
(ii)
above.
13
Section
6.11. Survival
of Representations and Warranties.
All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement, the purchase of the Notes
hereunder and the termination of this Agreement.
Section
6.12. Submission
to Jurisdiction; Waivers.
EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY:
(1) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN MANHATTAN AND THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(2) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND WAIVES
ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION
OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT
IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE
SAME;
(3) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH
IN SECTION 6.2 OR AT SUCH OTHER ADDRESS OF WHICH THE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO; AND
(4) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO ▇▇▇ IN ANY OTHER
JURISDICTION.
Section
6.13. WAIVERS
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY
LEGAL
ACTION OR PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY
OTHER DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM
THEREIN.
14
Section
6.14. Hedging
Requirements.
Upon
prior written notice from the Agent to the Issuer and the Co-Issuers, the Issuer
and such Co-Issuers shall enter into a Hedge Agreement with a Qualified Hedge
Counterparty and upon execution thereof shall pledge all of the Issuer’s and
such Co-Issuers' right, title and interest under such Hedge Agreement to the
Agent for the benefit of the Lender pursuant to this Agreement and the Security
Agreement. Each Hedge Agreement shall be in form and substance satisfactory
to
the Agent, including, without limitation, having a notional amount based on
the
Initial Note Principal Balance related to the applicable Borrowing on such
Funding Date.
Section
6.15. Confidentiality.
(a) Each
party hereto acknowledges that they regard the structure of the transactions
contemplated by the Transaction Documents to be proprietary, and each such
party
severally agrees that:
(i) it
will
not disclose without the prior consent of any other party hereto (other than
to
the directors, officers, employees, auditors, counsel or affiliates
(collectively, “representatives”) of each other party, each of whom shall be
informed by the related party of the confidential nature of the Program
Information (as defined below) and of the terms of this Section 6.15), (1)
any
information regarding the pricing in, or copies of, this Agreement, any other
Transaction Document or any transaction contemplated hereby or thereby, (2)
any
information regarding the organization, business or operations of any party
hereto generally or the services performed by any party hereto, or (3) any
information which is furnished by any party hereto to any other party hereto
and
which is designated to such other party in writing or otherwise as confidential
or not otherwise available to the general public (the information referred
to in
clauses (1), (2) and (3) is collectively referred to as the “Program
Information”),
provided that such party may disclose any such Program Information (v) to any
other party to this Agreement (and any independent attorneys, consultants and
auditors of any such party so long as they are informed that such information
is
confidential and are under an obligation or duty to keep such information
confidential) for the purposes contemplated hereby, (w) as may be required
by
any Governmental Authority having or claiming to have jurisdiction over such
party, (x) in order to comply with any Law applicable to such party, (y) subject
to subsection (c), in the event such party is legally compelled (by
interrogatories, requests for information or copies, subpoena, civil
investigative demand or similar process) to disclose any such Program
Information or (z) to any permitted assignee of such party’s rights and
obligations hereunder to the extent they agree to be bound by this
Section;
(ii) it,
and
any Person to which it discloses such information, will use the Program
Information solely for the purposes of evaluating, administering, performing
and
enforcing the transactions contemplated by the Transaction Documents and making
any necessary business judgments with respect thereto; and
15
(iii) it,
and
any Person to which it discloses such information, will, upon demand, return
(and cause each of its representatives to return) to any other party or destroy,
all documents or other written material received from such other party, pursuant
to clauses (2) or (3) of subsection (i) above and all copies thereof made by
such party which contain all Program Information.
(b) Availability
of Confidential Information.
This
Section 6.15 shall be inoperative as to such portions of the Program Information
which are or become generally available to the public or such party on a
nonconfidential basis from a source other than the Issuer, any Co-Issuer, the
Agent, any Indemnified Party, the Lender, any Noteholder, any counterparty
to a
Hedge Agreement approved by the Agent, any Manager, NexCen Brands or were known
to such party on a nonconfidential basis prior to its disclosure by any other
party hereto.
(c) Legal
Compulsion to Disclose.
In the
event that any party hereto or anyone to whom such party or its representatives
transmits the Program Information is requested or becomes legally compelled
(by
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any of the Program
Information, such party shall:
(i) to
the
extent permitted by law, provide each other affected party hereto with prompt
written notice so that such other party may seek a protective order or other
appropriate remedy and/or if it so chooses, agree that such party may disclose
such Program Information pursuant to such request or legal compulsion;
and
(ii) unless
each other party hereto waives compliance by such party with the provisions
of
this Section 6.15, make a timely objection to the request or compulsion to
provide such Program Information on the basis that such Program Information
is
confidential and subject to the agreements contained in this Section 6.15 as
long as the making of any such objection is not prohibited by Law.
In
the
event that such protective order or other remedy is not obtained, or each other
party hereto waives compliance with the provisions of this Section 6.15, such
party will furnish only that portion of the Program Information which (in such
party’s good faith judgment) is legally required to be furnished and will
exercise all reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Program Information.
16
IN
WITNESS WHEREOF, the parties hereto have caused this Note Funding Agreement
to
be duly executed by their respective officers as of the day and year first
above
written.
|
NEXCEN
ACQUISITION CORP.,
as
Issuer
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
VICTORY
RECEIVABLES CORPORATION,
as
Lender
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
BTMU
CAPITAL CORPORATION,
as
Agent
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
17
ANNEX
A
STANDARD
DEFINITIONS
EXHIBIT
A
FORM
OF
JOINDER SUPPLEMENT
JOINDER
SUPPLEMENT, dated as of [·],
by and
between [SUBSIDIARY BORROWERS], a [·]
(the
“Additional
Borrowers”),
BTMU
CAPITAL CORPORATION, a Delaware corporation (the “Agent”)
and
VICTORY RECEIVABLES CORPORATION, a Delaware corporation (the “Lender”).
WITNESSETH
WHEREAS,
this Supplement is being executed and delivered in accordance with
subsection 2.4 of the Note Funding Agreement, dated as of March 12, 2007,
among NEXCEN ACQUISITION CORP., as Issuer, the Subsidiary Borrowers from time
to
time parties thereto, collectively, as Co-Issuers, the Agent, and the Lender
(as
from time to time amended, supplemented or otherwise modified in accordance
with
the terms thereof, the “Note
Funding Agreement”;
unless
otherwise defined herein, terms defined in the Note Funding Agreement are used
herein as therein defined); and
WHEREAS,
each Additional Borrower wishes to become a Co-Issuer party to the Note Funding
Agreement and to make a Borrowing thereunder in the amount, and on the terms,
set forth in Schedule I hereto;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
Upon
receipt by the Issuer and the Co-Issuers of counterparts of this Supplement,
to
each of which is attached a fully completed Schedule I, and each of which has
been executed by the Additional Borrowers and the Agent,
the
Additional Borrowers shall be Co-Issuer parties to the Note Funding Agreement
for all purposes thereof.
Concurrently
with the execution and delivery hereof, the Additional Borrowers will deliver
to
the Issuer, the Co-Issuers and the Agent an executed Security Agreement
Supplement in the form of Exhibit D to the Security Agreement.
Each
of
the parties to this Supplement agrees and acknowledges that at any time and
from
time to time upon the written request of any other party, it will execute and
deliver such further documents and do such further acts and things as such
other
party may reasonably request in order to effect the purposes of this
Supplement.
By
executing and delivering this Supplement, the Additional Borrowers confirm
to
and agree with the Issuer, the Co-Issuers and the Agent as follows: (i) the
Additional Borrowers make the representations and warranties set forth in
Section 4.1 of the Note Funding Agreement and (ii) hereby agree to be bound
by,
and to comply with, all of the terms and provisions of the Note Funding
Agreement applicable to a Co-Issuer.
Schedule I
hereto sets forth certain terms related to the Borrowing as well as
administrative information with respect to the Additional
Borrowers.
THIS
SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK.
1
IN
WITNESS WHEREOF, the parties hereto have caused this Supplement to be executed
by their respective duly authorized officers as of the date set forth
above.
|
[SUBSIDIARY
BORROWER],
as
Additional Borrower
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
[SUBSIDIARY
BORROWER],
as
Additional Borrower
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
BTMU
CAPITAL CORPORATION,
as
Agent
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
VICTORY
RECEIVABLES CORPORATION,
as
Lender
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
2
SCHEDULE
I TO
JOINDER
SUPPLEMENT
BORROWING
TERMS AND ADDRESS FOR NOTICES
|
[Additional
Borrowers]
|
||
|
Borrowing
Amount
|
$__________
|
|
|
Interest
Rate
|
_________%
|
|
|
Term
of Borrowing
|
60
months from [·],
2007
|
|
|
Address
for Notices:
|
||
1
EXHIBIT
B
FORM
OF
BORROWING NOTICE
NOTE
FUNDING AGREEMENT (the “Agreement”),
dated
as of March 12, 2007, among NEXCEN ACQUISITION CORP., as Issuer, the Subsidiary
Borrowers from time to time parties thereto, collectively, as Co-Issuers, BTMU
CAPITAL CORPORATION, as Agent and VICTORY RECEIVABLES CORPORATION, as
Lender.
Requested
Funding Date: _______________________________________________
|
Assets
to be Pledged:
|
See
Schedules to the related Security Agreement
Supplement
|
|
Value
of Assets to be pledged
|
$________________
|
|
Value
of Collateral subject to Lien of Security Agreement
excluding
item 2 above:
|
$________________
|
|
Sum
of item 2 and item 3:
|
$________________
|
|
Borrowing
Base Prior to Funding:
|
$________________
|
|
Borrowing
Base After Funding:
|
$________________
|
|
Available
Borrowing Amount Prior to Funding:
|
$________________
|
|
Available
Borrowing Amount After Funding:
|
$________________
|
|
Requested
Wire Amount
|
$________________
|
|
Wire
Instructions:
|
Requested
by:
[SUBSIDIARY
BORROWERS]
By:
____________________________________
Name:
Title:
1