SWING LOAN NOTE
Exhibit 10.5
Execution Version
| $20,000,000 | August 20, 2021 |
This Swing Loan Note (this “Note”) is executed and delivered under and pursuant to the terms of that certain Revolving Credit and Security Agreement dated as of August 20, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) by and among NEWEGG COMMERCE, INC., a business company incorporated with limited liability under the laws of the British Virgin Islands (“Newegg Commerce”), NEWEGG INC., a Delaware corporation (“Newegg”), NEWEGG NORTH AMERICA INC., a Delaware corporation (“Newegg NorAm”), ▇▇▇▇▇▇.▇▇▇ AMERICAS INC., a Delaware corporation (“Newegg Americas”), NEWEGG CANADA INC., an Ontario corporation (“Newegg Canada”), ▇▇▇▇▇▇▇ ASSOCIATE, INC., a California corporation (“▇▇▇▇▇▇▇”), ROSEWILL INC., a Delaware corporation (“Rosewill”), NEWEGG BUSINESS INC., a Delaware corporation (“Newegg Biz”), OZZO INC., a Delaware corporation (“Ozzo”), NEWEGG STAFFING INC., a Delaware corporation (“Newegg Staffing”), INOPC, INC., an Indiana corporation (“INOPC”), CAOPC, INC., a California corporation (“CAOPC ”), NJOPC, INC., a New Jersey corporation (“NJOPC”), NEWEGG LOGISTICS SERVICES INC., a Delaware corporation (“Newegg Logistics “), NUTREND AUTOMOTIVE, INC., a Delaware corporation (“Nutrend”), NEWEGG TEXAS, INC., a Texas corporation (“Newegg Texas”) and NEWEGG FACILITY SOLUTIONS, INC., a Delaware corporation (“Newegg Facility”) (Newegg Commerce, Newegg, Newegg NorAm, Newegg Americas, Newegg Canada, ▇▇▇▇▇▇▇, Rosewill, Newegg Biz, Ozzo, Newegg Staffing, INOPC, CAOPC, NJOPC, Newegg Logistics, Nutrend, Newegg Texas, Newegg Facility and each Person joined thereto as a borrower from time to time, jointly and severally, collectively, “Borrowers,” and each, a “Borrower”) the financial institutions named therein or which hereafter become a party thereto, (the “Lenders”) and EAST WEST BANK, a California banking corporation, as Administrative Agent, Collateral Agent, Sole Arranger and Book Runner. Capitalized terms not otherwise defined herein shall have the meanings provided in the Credit Agreement.
FOR VALUE RECEIVED, the Borrowers hereby, jointly and severally, promise to pay to the order of Swing Loan Lender (“Holder”), at the Payment Office:
(i) the principal sum of TWENTY MILLION DOLLARS ($20,000,000) or, if different from such amount, the unpaid principal balance of Holder’s Swing Loans as may be due and owing under the Credit Agreement, payable in accordance with the provisions of the Credit Agreement, subject to acceleration upon the occurrence of an Event of Default under the Credit Agreement or earlier termination of the Credit Agreement pursuant to the terms thereof; and
(ii) interest on the principal amount of this Note from time to time outstanding until such principal amount is paid in full at the applicable Revolving Interest Rate in accordance with the provisions of the Credit Agreement. In no event, however, shall interest exceed the maximum interest rate permitted by Applicable Law. Upon and after the occurrence of an Event of Default, and during the continuation thereof, interest shall be payable at the Default Rate.
This Note is a Swing Loan Note referred to in the Credit Agreement and is secured, inter alia, by the Liens granted pursuant to the Credit Agreement and the Other Documents, is entitled to the benefits of the Credit Agreement and the Other Documents and is subject to all of the agreements, terms and conditions therein contained.
This Note is subject to mandatory prepayment and may be voluntarily prepaid, in whole or in part, on the terms and conditions set forth in the Credit Agreement.
If an Event of Default under Section 10.7 of the Credit Agreement shall occur, then this Note shall become immediately due and payable as more particularly set forth in the Credit Agreement, together with reasonable attorneys’ fees if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof. If any other Event of Default shall occur under the Credit Agreement or any of the Other Documents, which is not cured within any applicable grace period, then this Note may, as provided in the Credit Agreement, be declared to be immediately due and payable, without notice, together with reasonable attorneys’ fees, if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof.
This Note shall, in accordance with Section 5-1401 of the General Obligations Law of the State of New York, be construed and enforced in accordance with the laws of the State of New York.
Each Borrower expressly waives any presentment, demand, protest, notice of protest, or notice of any kind except as expressly provided in the Credit Agreement.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, this Note has been executed and delivered as of the date first written above.
| BORROWERS: | ||
| NEWEGG COMMERCE, INC., | ||
| a British Virgin Islands business company | ||
| incorporated with limited liability | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Title: | Chief Executive Officer | |
| NEWEGG INC., | ||
| a Delaware corporation | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Title: | Chief Executive Officer | |
| NEWEGG NORTH AMERICA INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| ▇▇▇▇▇▇.▇▇▇ AMERICAS INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| NEWEGG CANADA INC., | ||
| an Ontario corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
Signature Page to Swing Loan Note
| ▇▇▇▇▇▇▇ ASSOCIATE, INC., | ||
| a California corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title : | Chief Financial Officer | |
| ROSEWILL INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| NEWEGG BUSINESS INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title : | Chief Financial Officer | |
| OZZO INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| NEWEGG STAFFING INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
Signature Page to Swing Loan Note
| INOPC, INC., | ||
| an Indiana corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title : | Chief Financial Officer | |
| CAOPC, INC., | ||
| a California corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| NJOPC, INC., | ||
| a New Jersey corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title : | Chief Financial Officer | |
| NEWEGG LOGISTICS SERVICES INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title : | Chief Financial Officer | |
| NEWEGG FACILITY SOLUTIONS INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title : | Chief Financial Officer | |
Signature Page to Swing Loan Note
| NEWEGG TEXAS, INC., | ||
| a Texas corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| NUTREND AUTOMOTIVE INC., | ||
| a Delaware corporation | ||
| By: | /s/ Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Name: | Yueh-Pai “▇▇▇▇▇▇” ▇▇▇▇▇ | |
| Title : | Chief Financial Officer | |
Signature Page to Swing Loan Note