FORBEARANCE AND FOURTH AMENDMENT AGREEMENT
Exhibit 10.1
FORBEARANCE AND FOURTH AMENDMENT AGREEMENT
This Forbearance and Fourth Amendment Agreement (this “Amendment Agreement”), effective as of July 2, 2018, by and among ▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (“USELL”), BST Distribution, Inc., a New York corporation (“BST”), We Sell Cellular LLC, a Delaware limited liability company (“WE SELL” together with uSell and BST, each a “Company” and collectively the “Companies”), the Purchaser party hereto (the “Purchaser”) and ______________________, a Delaware limited liability company, as agent for the Purchaser and the other Purchasers from time to time party to the Note Purchase Agreement (as hereafter defined) (the “Agent” and together with such Purchasers, the “Creditor Parties”).
WHEREAS, the Companies and Creditor Parties are parties to a Note Purchase Agreement dated as of January 13, 2017 (as amended from time to time, the “Purchase Agreement”).
WHEREAS, an Event of Default (as defined in the Note) occurred on April 1, 2018 and is now existing based on Companies’ failure to comply with the “Operating Margin” covenant set forth in Section 8.23(a) of the Purchase Agreement for the fiscal quarter period ending March 31, 2018 (the “Designated Default”).
WHEREAS, pursuant to the terms of a Forbearance and Third Amendment Agreement dated as of May 4, 2018 by and among Company and Creditor Parties, Creditor Parties agreed to forbear for a period of time from exercising rights and remedies based on the occurrence of the Designated Default and amend certain provisions of the Purchase Agreement (the “May 4th Forbearance and Amendment Agreement”).
WHEREAS, Companies have requested that Creditor Parties (a) extend the Forbearance Period provided for and as defined in the May 4th Forbearance and Amendment Agreement and (b) amend the Purchase Agreement and the Related Agreements on the terms and subject to the conditions set forth herein, and Creditor Parties are prepared to extend such Forbearance Period and amend the Purchase Agreement, in each case, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, and of other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. Capitalized terms not otherwise defined in this Amendment Agreement shall have the meaning ascribed to them in the Purchase Agreement.
2. Acknowledgment of Liabilities.
(a) Each Company hereby acknowledges that it is unconditionally liable to Creditor Parties under the Purchase Agreement and the Related Agreements to which it is a party for the payment of all Liabilities, and no Company has any defenses, counterclaims, deductions, credits, claims or rights of setoff or recoupment with respect to the Liabilities.
(b) Each Company hereby ratifies and confirms its obligations under the Purchase Agreement and the Related Agreements to which it is a party and hereby acknowledges and agrees that the Purchase Agreement and the Related Agreements to which it is a party remain in full force and effect.
3. Forbearance.
(a) Each Company hereby acknowledges that (a) the Designated Default occurred on April 1, 2018 and is continuing and (b) the Forbearance Period provided for and as defined in the May 4th Forbearance and Amendment Agreement terminated on June 30, 2018, the occurrence of which entitles the Creditor Parties to exercise their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law.
(b) No Creditor Party has waived, presently does not intend to waive and may never waive such Designated Default and nothing contained herein or the transactions contemplated hereby shall be deemed to constitute in any manner whatsoever any such waiver. Each Company hereby acknowledges that Creditor Parties have the presently exercisable right to declare the Liabilities to be immediately due and payable under the ▇▇▇▇▇▇ of the Purchase Agreement and the Related Agreements.
(c) Subject to satisfaction of the conditions of effectiveness set forth in Section 8 of this Amendment Agreement, during the period (the “Forbearance Period”) commencing on June 30, 2018 and ending on the earlier to occur of (a) September 30, 2018 and (b) the occurrence of any Forbearance Default (as defined in Section 3(e) of this Amendment Agreement), Creditor Parties will forbear from exercising their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law solely in respect of the Designated Default. Notwithstanding the foregoing, nothing contained herein shall impair in any manner whatsoever Creditor Parties’ rights to administer the credit facility and/or to collect, receive and/or apply proceeds of each Company’s accounts receivable and/or any other collateral to the Liabilities, in each case, in accordance with the terms of the Purchase Agreement and the Related Agreements. The Creditor Parties may consider extending the expiration date of the Forbearance Period, but any such extension will be determined by the Creditor Parties in their sole and absolute discretion and, if provided at all, shall only be made on terms and conditions satisfactory to the Creditor Parties in their sole and absolute discretion. Among other factors which the Creditor Parties may consider in determining whether to extend the expiration date of the Forbearance Period are the Companies’ financial performance, the Companies’ compliance with the June 30, 2018 and September 30, 2018 “Operating Margin” financial covenants under Section 8.23(a), the occurrence of no Events of Default (other than the Designated Default) and the Creditor Parties’ receipt of evidence satisfactory in all respects to the Creditor Parties demonstrating that satisfactory progress (as determined by the Creditor Parties in their sole and absolute discretion) has been made by the Companies in connection with their diligent and good faith efforts to refinance the Liabilities by September 30, 2018. No such extension, if provided at all, shall be effective unless in a writing executed by the Creditor Parties and the Companies, and acknowledged and agreed to by the Guarantors.
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(d) Upon the termination of the Forbearance Period, the agreement of Creditor Parties to forbear with respect to the Designated Default shall automatically and without further action terminate and be of no further force and effect, it being expressly agreed that the effect of such termination will be to permit Creditor Parties to (i) exercise such rights and remedies immediately without any further notice, passage of time or forbearance of any kind and (ii) charge the Default Interest Rate (as defined in Section 1.7 of the Note) retroactively to April 1, 2018, which such Default Interest Rate charges shall be due and payable on the next Interest Payment Date (as defined in the Note).
(e) The occurrence of any Event of Default (other than the Designated Default) shall constitute a Forbearance Default. As of the date hereof, neither the Companies nor the Creditor Parties have any actual knowledge of any Events of Default other than the Designated Default.
(f) Subject only to Section 3(c) of this Amendment Agreement, Creditor Parties reserve the right, in their sole discretion, to exercise any or all of their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law as a result of any Event of Default (other than the Designated Default), and no Creditor Party has waived any of such rights or remedies, and nothing in this Amendment Agreement, and no delay on their part in exercising any such rights or remedies, should be construed as a waiver of any such rights or remedies.
4. Amendments. Subject to satisfaction of the conditions of effectiveness set forth in Section 8 of this Amendment Agreement:
(a) Section 8.23(a) of the Agreement is hereby amended and restated in its entirety to provide as follows:
“(a) Operating Margin.
(i) Commencing with the fiscal quarter ending December 31, 2017 and for each fiscal quarter ending thereafter, Companies will not permit Gross Profit (as hereafter defined) as of the end of such fiscal quarter to be less than two percent (2%) of Companies’ revenue (determined in accordance with GAAP) for such fiscal quarter.
(ii) For the calendar months ending July 31, 2018, August 31, 2018 and September 30, 2018, Companies will not permit Gross Profit (as hereafter defined) as of the end of such calendar month to be less than zero percent (0%) of Companies’ revenue (determined in accordance with GAAP) for such calendar month.
For purposes hereof, the term “Gross Profit” shall mean an amount equal to (x) revenue received by Companies during the applicable period, minus (y) the cost of goods sold during the applicable period, including all direct sales and marketing expenses incurred by Companies during such period, all to be determined in accordance with GAAP and in a manner consistent with Companies’ past practices and otherwise supported by calculations acceptable to Agent.”
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(b) The definition of “Applicable Net Debt” set forth in Section 8.23(b) of the Purchase Agreement is hereby amended and restated in its entirety to provide as follows:
“Applicable Net Debt” means, at the date of determination, the outstanding principal amount of the Notes less (X) cash and cash equivalents on deposit in the Agent Controlled Account plus (Y) (i) during the period commencing on and including July 2, 2018 and ending on and including September 30, 2018, zero ($0) and (ii) on and after October 1, 2018, $230,000, minus (Z) during the period commencing on and including July 2, 2018 and ending on and including September 30, 2018, the sum of (1) $187,600 and (2) all PIK Amounts (as defined in the Note) which have been added to the Principal Amount of (and as defined in) the Note on or prior to such date of determination.”
(c) Notwithstanding anything contained in the Purchase Agreement or any Related Agreement to the contrary, so long as (a) no Event of Default (other than the Designated Default) shall occur and be continuing and (b) all Liabilities are paid in full in cash prior to the expiration of the Forbearance Period, the occurrence of the Designated Default shall not result in the imposition of the Default Interest Rate (as defined in the Note); provided that in the event all Liabilities are not paid in full prior to the expiration of the Forbearance Period and in the event (i) the Companies fail to be in compliance with the “Operating Margin” covenant under Section 8.23(a) of the Purchase Agreement for both the fiscal quarter ending June 30, 2018 and the fiscal quarter ending September 30, 2018 or (ii) fail to provide Creditor Parties evidence satisfactory in all respects to the Creditor Parties demonstrating that satisfactory progress (as determined by the Creditor Parties in their sole and absolute discretion) has been made by the Companies in connection with their diligent and good faith efforts to refinance the Liabilities by September 30, 2018, then all Liabilities shall automatically bear interest at the Default Interest Rate (as defined in the Note) on a retroactive basis from the date of the first occurrence of the Designated Default.
(d) The Note is hereby amended to reflect the terms of the Third Amended and Restated Secured Term Note in the form attached hereto as Exhibit A.
5. Forbearance and Amendment Fee; Companies’ Deferral of Certain Payments. (a) In consideration of Creditor Parties’ agreements contained herein, the Companies shall jointly and severally pay to Purchaser a forbearance and amendment fee in an aggregate amount equal to $187,600 (the “Amendment Fee”), which such Amendment Fee shall be payable simultaneously with Company’s execution and delivery of this Amendment Agreement by the addition of the amount of such Amendment Fee to the Principal Amount owing under and as defined in the Note such that immediately after giving effect to such payment (but prior to the addition of any PIK Amount) the outstanding Principal Amount of the Note shall equal Five Million Five Hundred Forty-Seven Thousand Six Hundred Dollars ($5,547,600).
(b) Each Company agrees that, during the period commencing on July 2, 2018 and ending on October 1, 2018, it will defer payment of any and all compensation or amounts due to Nik Raman, ▇▇▇▇▇ ▇▇▇▇▇▇ and the Companies’ financial consultants and legal retainer payments to the Companies’ lawyers (collectively, the “Deferral Parties”), which amounts instead will accrue through October 1, 2018, except that the Companies may make ordinary and customary commission payments to ▇▇▇▇▇ ▇▇▇▇▇▇ for sales made by ▇▇. ▇▇▇▇▇▇ of the Companies’ inventory in the ordinary course of business.
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6. Representations and Warranties. Each Company hereby represents and warrants
to Purchasers and Agent that:
(a) The execution, delivery and performance of this Amendment Agreement (i) have been duly authorized by each Company, (ii) are not in contravention of the certificate of incorporation, bylaws, certificate of formation or operating agreement of any Company or of any indenture, agreement or undertaking to which any Company is a party or by which any Company is bound and (iii) are within each Company’s powers.
(b) This Amendment Agreement is the legal, valid and binding obligation of each Company, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization or similar laws relating to creditors’ rights generally or by equitable principles.
(c) The representations and warranties of each Company contained in the Purchase Agreement and the Related Agreements are and will be true, correct and complete in all respects on and as of the date hereof to the same extent as though made on and as of such date, except to the extent that such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete as of such earlier date.
(d) Each of the Deferral Parties has agreed to the deferral of the payments referenced in Section 5(b).
7. General Release. Each Company and each Guarantor (by its acknowledgment set
forth below) hereby releases, waives and forever relinquishes all claims, demands, obligations, liabilities and causes of action of whatever kind or nature, whether known or unknown, which it has, may have, or might assert now or in the future against any Creditor Party and/or its, officers, directors, employees, agents, attorneys, accountants, consultants, successors and assigns, directly or indirectly, arising out of, based upon, or in any manner connected with any transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, which occurred, existed, or was taken or permitted prior to the date hereof The inclusion of this paragraph in this Amendment Agreement, and the execution of this Amendment Agreement by Creditor Parties, does not constitute an acknowledgment or admission by any Creditor Party of liability for any matter, or a precedent upon which any liability may be asserted.
8. Conditions of Effectiveness. This Amendment Agreement shall become effective
upon receipt by Agent (unless waived by Agent in writing) of the following, each in form and substance satisfactory to Agent in its sole discretion: (a) this Amendment Agreement executed by each Company and each Guarantor, (b) an original executed Third Amended and Restated Secured Term Note in the form attached hereto as Exhibit A, (c) corporate resolutions for each Company authorizing the transactions contemplated by this Amendment Agreement and (d) payment by Companies of all fees and expenses incurred by Agent (i) in connection with the transactions contemplated by this Amendment Agreement, including, without limitation, the fees of ________________, counsel to Agent and Purchasers and (ii) for matters described in Section 8.32 of the Purchase Agreement.
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9. Effect on Note Purchase Agreement.
(a) Upon the effectiveness of this Amendment Agreement, each reference in the Purchase Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Purchase Agreement as amended hereby.
(b) Except as specifically amended herein, the Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment Agreement shall not operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision of the Purchase Agreement, or any other documents, instruments or agreements executed and/or delivered under or in connection therewith.
10. Miscellaneous. Section 13 of the Purchase Agreement is incorporated by reference into this Amendment Agreement without the necessity of fully repeating it.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed and delivered by their duly authorized officers as of the date first set forth above.
| COMPANIES: | ||
| ▇▇▇▇▇.▇▇▇, INC. | ||
| By: | ||
| Name: Nikhil Raman | ||
| Title: Chief Executive Officer | ||
| BST DISTRIBUTION, INC. | ||
| By: | ||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Chief Executive Officer | ||
| WE SELL CELLULAR LLC | ||
| By: | ||
| Name: Nikhil Raman | ||
| Title: Manager | ||
| SIGNATURE
PAGE TO FORBEARANCE AND FOURTH AMENDMENT AGREEMENT |
| PURCHASER: | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| AGENT: | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| SIGNATURE
PAGE TO FORBEARANCE AND FOURTH AMENDMENT AGREEMENT |
| GUARANTOR ACKNOWLEDGEMENT AND AGREEMENT: | ||
| UPSTREAM PHONE COMPANY USA, INC., a Delaware corporation |
||
| By: | ||
| Name: Nikhil Raman | ||
| Title: President | ||
| UPSTREAM PHONE HOLDINGS, INC., a Delaware corporation |
||
| By: | ||
| Name: Nikhil Raman | ||
| Title: President | ||
| HD CAPITAL HOLDINGS LLC, a Delaware limited liability company |
||
| By: | ||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: Manager | ||
| SIGNATURE
PAGE TO FORBEARANCE AND FOURTH AMENDMENT AGREEMENT |