REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT Revolving Credit, Term Loan and Security Agreement dated as of February 5, 2018 among CCA INDUSTRIES, INC., a corporation organized under the laws of the State of Delaware (“CCA” and together with...
EXHIBIT 10.1
REVOLVING CREDIT, TERM LOAN
AND
SECURITY AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
(AS LENDER AND AS AGENT)
WITH
CCA INDUSTRIES, INC.
(BORROWER)
February 5, 2018
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TABLE OF CONTENTS
Page
I. DEFINITIONS. ....................................................................................................................1
1.1. Accounting Terms ....................................................................................................1
1.2. General Terms ..........................................................................................................1
1.3. Uniform Commercial Code Terms ........................................................................31
1.4. Certain Matters of Construction.............................................................................31
II. ADVANCES, PAYMENTS. .............................................................................................32
2.1. Revolving Advances ..............................................................................................32
2.2. Procedures for Requesting Revolving Advances; Procedures for Selection
of Applicable Interest Rates for All Advances ......................................................33
2.3. Term Loans ............................................................................................................35
2.4. Swing Loans...........................................................................................................35
2.5. Disbursement of Advance Proceeds ......................................................................37
2.6. Making and Settlement of Advances .....................................................................37
2.7. Maximum Advances ..............................................................................................39
2.8. Manner and Repayment of Advances ....................................................................39
2.9. Repayment of Excess Advances ............................................................................40
2.10. Statement of Account .............................................................................................40
2.11. Letters of Credit .....................................................................................................41
2.12. Issuance of Letters of Credit ..................................................................................41
2.13. Requirements For Issuance of Letters of Credit ....................................................42
2.14. Disbursements, Reimbursement ............................................................................42
2.15. Repayment of Participation Advances ...................................................................44
2.16. Documentation .......................................................................................................44
2.17. Determination to Honor Drawing Request ............................................................45
2.18. Nature of Participation and Reimbursement Obligations ......................................45
2.19. Liability for Acts and Omissions ...........................................................................46
2.20. Mandatory Prepayments ........................................................................................47
2.21. Use of Proceeds......................................................................................................48
2.22. Defaulting Lender ..................................................................................................48
2.23. Payment of Obligations..........................................................................................51
III. INTEREST AND FEES. ....................................................................................................51
3.1. Interest....................................................................................................................51
3.2. Letter of Credit Fees ..............................................................................................52
3.3. Closing Fee and Facility Fee..................................................................................53
3.4. Collateral Monitoring Fee and Collateral Evaluation Fee .....................................53
3.5. Computation of Interest and Fees ..........................................................................54
3.6. Maximum Charges .................................................................................................54
3.7. Increased Costs ......................................................................................................54
3.8. Basis For Determining Interest Rate Inadequate or Unfair ...................................55
3.9. Capital Adequacy ...................................................................................................56
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3.10. Taxes ......................................................................................................................57
3.11. Replacement of Lenders ........................................................................................59
IV. COLLATERAL: GENERAL TERMS .............................................................................60
4.1. Security Interest in the Collateral ..........................................................................60
4.2. Perfection of Security Interest ...............................................................................60
4.3. Preservation of Collateral ......................................................................................61
4.4. Ownership and Location of Collateral ...................................................................61
4.5. Defense of Agent’s and Lenders’ Interests ............................................................62
4.6. Inspection of Premises ...........................................................................................62
4.7. Appraisals ..............................................................................................................62
4.8. Receivables; Deposit Accounts and Securities Accounts ......................................63
4.9. Inventory ................................................................................................................66
4.10. Maintenance of Equipment ....................................................................................66
4.11. Exculpation of Liability .........................................................................................66
4.12. Financing Statements .............................................................................................66
V. REPRESENTATIONS AND WARRANTIES..................................................................66
5.1. Authority ................................................................................................................66
5.2. Formation and Qualification ..................................................................................67
5.3. Survival of Representations and Warranties ..........................................................67
5.4. Tax Returns ............................................................................................................67
5.5. Financial Statements ..............................................................................................67
5.6. Entity Names ..........................................................................................................68
5.7. O.S.H.A. Environmental Compliance; Flood Insurance........................................68
5.8. Solvency; No Litigation, Violation, Indebtedness or Default; ERISA
Compliance ............................................................................................................69
5.9. Patents, Trademarks, Copyrights and Licenses .....................................................70
5.10. Licenses and Permits..............................................................................................70
5.11. Default of Indebtedness .........................................................................................70
5.12. No Default ..............................................................................................................71
5.13. No Burdensome Restrictions .................................................................................71
5.14. No Labor Disputes .................................................................................................71
5.15. Margin Regulations ................................................................................................71
5.16. Investment Company Act ......................................................................................71
5.17. Disclosure ..............................................................................................................71
5.18. Delivery of the ▇▇▇▇▇▇▇ Documents and the OHL Documents ............................71
5.19. Delivery of the Advantage Documents and CaseStack Documents ......................72
5.20. Swaps .....................................................................................................................72
5.21. Business and Property of Loan Parties ..................................................................72
5.22. Ineligible Securities ...............................................................................................72
5.23. Federal Securities Laws .........................................................................................72
5.24. Equity Interests ......................................................................................................72
5.25. Commercial Tort Claims........................................................................................73
5.26. Letter of Credit Rights ...........................................................................................73
5.27. Material Contracts ..................................................................................................73
5.28. Inactive Subsidiaries ..............................................................................................73
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VI. AFFIRMATIVE COVENANTS. ......................................................................................73
6.1. Compliance with Laws ..........................................................................................73
6.2. Conduct of Business and Maintenance of Existence and Assets ...........................73
6.3. Books and Records ................................................................................................73
6.4 Payment of Taxes ...................................................................................................74
6.5. Fixed Charge Coverage Ratio ................................................................................74
6.6. Insurance ................................................................................................................74
6.7. Payment of Indebtedness and Leasehold Obligations ...........................................76
6.8. Environmental Matters...........................................................................................76
6.9. Standards of Financial Statements .........................................................................77
6.10. Execution of Supplemental Instruments ................................................................77
6.11. Government Receivables .......................................................................................77
6.12. Membership/Partnership Interests .........................................................................77
6.13. Keepwell ................................................................................................................77
6.14. Post-Closing Obligations .......................................................................................78
VII. NEGATIVE COVENANTS. .............................................................................................78
7.1. Merger, Consolidation, Acquisition and Sale of Assets ........................................78
7.2. Creation of Liens....................................................................................................79
7.3. Guarantees..............................................................................................................79
7.4. Investments ............................................................................................................79
7.5. Loans ......................................................................................................................79
7.6. Capital Expenditures ..............................................................................................79
7.7. Dividends ...............................................................................................................79
7.8. Indebtedness ...........................................................................................................80
7.9. Nature of Business .................................................................................................80
7.10. Transactions with Affiliates ...................................................................................80
7.11. Leases .....................................................................................................................80
7.12. Subsidiaries ............................................................................................................80
7.13. Fiscal Year and Accounting Changes ....................................................................81
7.14. Pledge of Credit .....................................................................................................81
7.15. Amendment of Organizational Documents ...........................................................81
7.16. Compliance with ERISA........................................................................................81
7.17. Prepayment of Indebtedness ..................................................................................81
7.18. Other Agreements ..................................................................................................81
7.19. Membership/Partnership Interests .........................................................................82
7.20. Inactive Subsidiaries ..............................................................................................82
VIII. CONDITIONS PRECEDENT. ..........................................................................................82
8.1. Conditions to Initial Advances...............................................................................82
8.2. Conditions to Each Advance ..................................................................................85
IX. INFORMATION AS TO BORROWERS. ........................................................................85
9.1. Disclosure of Material Matters ..............................................................................85
9.2. Schedules ...............................................................................................................85
9.3. Environmental Reports ..........................................................................................86
9.4. Litigation ................................................................................................................87
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9.5. Material Occurrences .............................................................................................87
9.6. Government Receivables .......................................................................................87
9.7. Annual Financial Statements .................................................................................87
9.8. Quarterly Financial Statements ..............................................................................88
9.9. Monthly Financial Statements ...............................................................................88
9.10. Other Reports .........................................................................................................88
9.11. Additional Information ..........................................................................................88
9.12. Projected Operating Budget ...................................................................................88
9.13. Variances From Operating Budget ........................................................................89
9.14. Notice of Suits, Adverse Events ............................................................................89
9.15. ERISA Notices and Requests.................................................................................89
9.16. Additional Documents ...........................................................................................90
9.17. Updates to Certain Schedules ................................................................................90
X. EVENTS OF DEFAULT. ..................................................................................................90
10.1. Nonpayment ...........................................................................................................90
10.2. Breach of Representation .......................................................................................90
10.3. Financial Information.............................................................................................90
10.4. Judicial Actions ......................................................................................................90
10.5. Noncompliance ......................................................................................................90
10.6. Judgments ..............................................................................................................91
10.7. Bankruptcy .............................................................................................................91
10.8. Material Adverse Effect .........................................................................................91
10.9. Lien Priority ...........................................................................................................91
10.10. Cross Default .........................................................................................................91
10.11. Breach of Guaranty ................................................................................................91
10.12. Change of Control ..................................................................................................92
10.13. Invalidity ................................................................................................................92
10.14. Seizures ..................................................................................................................92
10.15. Operations ..............................................................................................................92
10.16. Pension Plans .........................................................................................................92
10.17. Anti-Money Laundering/International Trade Law Compliance ............................92
XI. LENDERS’ RIGHTS AND REMEDIES AFTER DEFAULT. ........................................92
11.1. Rights and Remedies..............................................................................................92
11.2. Agent’s Discretion .................................................................................................94
11.3. Setoff ......................................................................................................................94
11.4. Rights and Remedies not Exclusive .......................................................................94
11.5. Allocation of Payments After Event of Default .....................................................94
XII. WAIVERS AND JUDICIAL PROCEEDINGS. ...............................................................96
12.1. Waiver of Notice ....................................................................................................96
12.2. Delay ......................................................................................................................96
12.3. Jury Waiver ............................................................................................................96
XIII. EFFECTIVE DATE AND TERMINATION. ...................................................................97
13.1. Term .......................................................................................................................97
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13.2. Termination ............................................................................................................97
XIV. REGARDING AGENT. ....................................................................................................97
14.1. Appointment ..........................................................................................................97
14.2. Nature of Duties .....................................................................................................98
14.3. Lack of Reliance on Agent ....................................................................................98
14.4. Resignation of Agent; Successor Agent ................................................................98
14.5. Certain Rights of Agent .........................................................................................99
14.6. Reliance..................................................................................................................99
14.7. Notice of Default....................................................................................................99
14.8. Indemnification ....................................................................................................100
14.9. Agent in its Individual Capacity ..........................................................................100
14.10. Delivery of Documents ........................................................................................100
14.11. Loan Parties Undertaking to Agent......................................................................100
14.12. No Reliance on Agent’s Customer Identification Program .................................100
14.13. Other Agreements ................................................................................................101
XV. BORROWING AGENCY. ..............................................................................................101
15.1. Borrowing Agency Provisions .............................................................................101
15.2. Waiver of Subrogation .........................................................................................102
XVI. MISCELLANEOUS. .......................................................................................................102
16.1. Governing Law ....................................................................................................102
16.2. Entire Understanding ...........................................................................................102
16.3. Successors and Assigns; Participations; New Lenders ........................................106
16.4. Application of Payments ......................................................................................108
16.5. Indemnity .............................................................................................................108
16.6. Notice ...................................................................................................................110
16.7. Survival ................................................................................................................112
16.8. Severability ..........................................................................................................112
16.9. Expenses ..............................................................................................................112
16.10. Injunctive Relief...................................................................................................112
16.11. Consequential Damages .......................................................................................113
16.12. Captions ...............................................................................................................113
16.13. Counterparts; Facsimile Signatures .....................................................................113
16.14. Construction .........................................................................................................113
16.15. Confidentiality; Sharing Information ...................................................................113
16.16. Publicity ...............................................................................................................114
16.17. Certifications From Banks and Participants; USA PATRIOT Act ......................114
16.18. Anti-Terrorism Laws ...........................................................................................114
XVII. GUARANTY. ..................................................................................................................115
17.1. Guaranty ...............................................................................................................115
17.2. Waivers ................................................................................................................115
17.3. No Defense...........................................................................................................115
17.4. Guaranty of Payment ...........................................................................................115
17.5. Liabilities Absolute ..............................................................................................116
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17.6. Waiver of Notice ..................................................................................................117
17.7. Agent’s Discretion ...............................................................................................117
17.8. Reinstatement. ......................................................................................................117
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LIST OF EXHIBITS AND SCHEDULES
Exhibits
Exhibit 1.2 Borrowing Base Certificate
Exhibit 1.2(a) Compliance Certificate
Exhibit 2.1(a) Revolving Credit Note
Exhibit 2.3 Term Note
Exhibit 2.4(a) Swing Loan Note
Exhibit 5.5(a) Financial Projections
Exhibit 8.1(c) Financial Condition Certificate
Exhibit 16.3 Commitment Transfer Supplement
Schedules
Schedule 1.2 Permitted Encumbrances
Schedule 4.4(a) Equipment and Inventory Locations
Schedule 4.4(b)(i) Inventory Locations
Schedule 4.4(b)(ii) Warehouses
Schedule 4.4(b)(iii) Place of Business, Chief Executive Offices
Schedule 4.4(b)(iv) Real Property
Schedule 4.8(j) Deposit and Investment Accounts
Schedule 5.1 Consents
Schedule 5.2(a) States of Qualification and Good Standing
Schedule 5.2(b) Subsidiaries
Schedule 5.4 Federal Tax Identification Number
Schedule 5.6 Prior Names
Schedule 5.7 Environmental
Schedule 5.8(b)(i) Litigation
Schedule 5.8(b)(ii) Indebtedness
Schedule 5.8(d) Plans
Schedule 5.9 Intellectual Property
Schedule 5.10 Licenses and Permits
Schedule 5.14 Labor Disputes
Schedule 5.24 Equity Interests
Schedule 5.25 Commercial Tort Claims
Schedule 5.26 Letter of Credit Rights
Schedule 5.27 Material Contracts
Schedule 6.14(d) Lien Waiver Agreements
Schedule 7.1(a) Permitted Acquisitions, Mergers and Consolidations
Schedule 7.1(b) Permitted Dispositions
Schedule 7.3 Guarantees
Schedule 7.10 Affiliate Transactions
REVOLVING CREDIT, TERM LOAN
AND
SECURITY AGREEMENT
Revolving Credit, Term Loan and Security Agreement dated as of February 5, 2018 among
CCA INDUSTRIES, INC., a corporation organized under the laws of the State of Delaware
(“CCA” and together with each Person joined hereto as a borrower from time to time, collectively,
the “Borrowers”, and each a “Borrower”), the financial institutions which are now or which
hereafter become a party hereto (collectively, the “Lenders” and each individually a “Lender”) and
PNC BANK, NATIONAL ASSOCIATION (“PNC”), as agent for Lenders (PNC, in such capacity,
the “Agent”).
IN CONSIDERATION of the mutual covenants and undertakings herein contained, Loan
Parties, Lenders and Agent hereby agree as follows:
I. DEFINITIONS.
1.1. Accounting Terms. As used in this Agreement, the Other Documents or any
certificate, report or other document made or delivered pursuant to this Agreement, accounting
terms not defined in Section 1.2 or elsewhere in this Agreement and accounting terms partly
defined in Section 1.2 to the extent not defined shall have the respective meanings given to them
under GAAP; provided, however that, whenever such accounting terms are used for the purposes
of determining compliance with financial covenants in this Agreement, such accounting terms
shall be defined in accordance with GAAP as applied in preparation of the audited financial
statements of Loan Parties for the fiscal year ended November 30, 2017. If there occurs after the
Closing Date any change in GAAP that affects in any respect the calculation of any covenant
contained in this Agreement or the definition of any term defined under GAAP used in such
calculations, Agent, Lenders and Loan Parties shall negotiate in good faith to amend the provisions
of this Agreement that relate to the calculation of such covenants with the intent of having the
respective positions of Agent, Lenders and Loan Parties after such change in GAAP conform as
nearly as possible to their respective positions as of the Closing Date, provided, that, until any such
amendments have been agreed upon, the covenants in this Agreement shall be calculated as if no
such change in GAAP had occurred and Loan Parties shall provide additional financial statements
or supplements thereto, attachments to Compliance Certificates and/or calculations regarding
financial covenants as Agent may reasonably require in order to provide the appropriate financial
information required hereunder with respect to Loan Parties both reflecting any applicable changes
in GAAP and as necessary to demonstrate compliance with the financial covenants before giving
effect to the applicable changes in GAAP.
1.2. General Terms. For purposes of this Agreement the following terms shall have the
following meanings:
“Accountants” shall have the meaning set forth in Section 9.7 hereof.
“Advance Rates” shall have the meaning set forth in Section 2.1(a)(y)(ii) hereof.
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“Advances” shall mean and include the Revolving Advances, Letters of Credit, the Swing
Loans and the Term Loan.
“Advantage” shall mean Advantage Sales & Marketing LLC or any of its Affiliates.
“Advantage Documents” shall mean all documents and agreements entered into by CCA
or any of its Affiliates and Advantage pursuant to which Advantage provides customer service,
collections, electronic data interchange management, and/or order fulfillment services to CCA,
including all exhibits, schedules and disclosure letters related thereto, and all amendments and
modifications thereto.
“Affected Lender” shall have the meaning set forth in Section 3.11 hereof.
“Affiliate” of any Person shall mean (a) any Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with such Person, or (b) any Person who
is a director, manager, member, managing member, general partner or officer (i) of such Person,
(ii) of any Subsidiary of such Person or (iii) of any Person described in clause (a) above. For
purposes of this definition, control of a Person shall mean the power, direct or indirect, (x) to vote
25% or more of the Equity Interests having ordinary voting power for the election of directors of
such Person or other Persons performing similar functions for any such Person, or (y) to direct or
cause the direction of the management and policies of such Person whether by ownership of Equity
Interests, contract or otherwise.
“Agent” shall have the meaning set forth in the preamble to this Agreement and shall
include its successors and assigns.
“Agreement” shall mean this Revolving Credit, Term Loan and Security Agreement, as the
same may be amended, restated, supplemented or otherwise modified from time to time.
“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the highest of (a)
the Base Rate in effect on such day, (b) the sum of the Overnight Bank Funding Rate in effect on
such day plus one half of one percent (0.5%), and (c) the sum of the Daily LIBOR Rate in effect
on such day plus one percent (1.0%), so long as a Daily LIBOR Rate is offered, ascertainable and
not unlawful.
“Anti-Terrorism Laws” shall mean any Laws relating to terrorism, trade sanctions
programs and embargoes, import/export licensing, money laundering or bribery, and any
regulation, order, or directive promulgated, issued or enforced pursuant to such Laws, all as
amended, supplemented or replaced from time to time.
“Applicable Law” shall mean all laws, rules and regulations applicable to the Person,
conduct, transaction, covenant, Other Document or contract in question, including all applicable
common law and equitable principles, all provisions of all applicable state, federal and foreign
constitutions, statutes, rules, regulations, treaties, directives and orders of any Governmental Body,
and all orders, judgments and decrees of all courts and arbitrators.
“Applicable Margin” shall mean (a) an amount equal to one-quarter of one percent (0.25%)
for (i) Revolving Advances consisting of Domestic Rate Loans, and (ii) Swing Loans, and (b) an
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amount equal to two and three-quarters percent (2.75%) for Revolving Advances consisting of
LIBOR Rate Loans, and (c) an amount equal to one percent (1.00%) for Advances under the Term
Loan consisting of Domestic Rate Loans, and (d) an amount equal to three and one-half percent
(3.50%) for Advances under the Term Loan consisting of LIBOR Rate Loans.
“Application Date” shall have the meaning set forth in Section 2.8(b) hereof.
“Approvals” shall have the meaning set forth in Section 5.7(b) hereof.
“Approved Electronic Communication” shall mean each notice, demand, communication,
information, document and other material transmitted, posted or otherwise made or communicated
by e-mail, E-Fax, the Credit Management Module of PNC’s PINACLE® system, or any other
equivalent electronic service agreed to by Agent, whether owned, operated or hosted by Agent,
any Lender, any of their Affiliates or any other Person, that any party is obligated to, or otherwise
chooses to, provide to Agent pursuant to this Agreement or any Other Document, including any
financial statement, financial and other report, notice, request, certificate and other information
material; provided that Approved Electronic Communications shall not include any notice,
demand, communication, information, document or other material that Agent specifically instructs
a Person to deliver in physical form.
“Availability Block” shall mean an amount equal to $400,000, which amount shall be
reduced to zero upon receipt of evidence satisfactory to Agent in its Permitted Discretion that
▇▇▇▇▇▇▇ is no longer retaining any funds pursuant to the ▇▇▇▇▇▇▇ Documents.
“Base Rate” shall mean the base commercial lending rate of PNC as publicly announced
to be in effect from time to time, such rate to be adjusted automatically, without notice, on the
effective date of any change in such rate. This rate of interest is determined from time to time by
PNC as a means of pricing some loans to its customers and is neither tied to any external rate of
interest or index nor does it necessarily reflect the lowest rate of interest actually charged by PNC
to any particular class or category of customers of PNC.
“Benefited Lender” shall have the meaning set forth in Section 2.6(e) hereof.
“Blocked Account Bank” shall have the meaning set forth in Section 4.8(h) hereof.
“Blocked Accounts” shall have the meaning set forth in Section 4.8(h) hereof.
“Borrower” or “Borrowers” shall have the meaning set forth in the preamble to this
Agreement and shall extend to all permitted successors and assigns of such Persons.
“Borrowers’ Account” shall have the meaning set forth in Section 2.10 hereof.
“Borrowing Agent” shall mean CCA.
“Borrowing Base Certificate” shall mean a certificate in substantially the form of Exhibit
1.2 hereto duly executed by the President, Chief Financial Officer or Controller of Borrowing
Agent and delivered to Agent, appropriately completed, by which such officer shall certify to
Agent the Formula Amount and calculation thereof as of the date of such certificate.
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“Business Day” shall mean any day other than Saturday or Sunday or a legal holiday on
which commercial banks are authorized or required by law to be closed for business in East
Brunswick, New Jersey and, if the applicable Business Day relates to any LIBOR Rate Loans,
such day must also be a day on which dealings are carried on in the London interbank market.
“Capital Expenditures” shall mean expenditures made or liabilities incurred for the
acquisition of any fixed assets or improvements (or of any replacements or substitutions thereof or
additions thereto) which have a useful life of more than one year and which, in accordance with
GAAP, would be classified as capital expenditures. Capital Expenditures shall include the total
principal portion of Capitalized Lease Obligations.
“Capitalized Lease Obligation” shall mean any Indebtedness of any Loan Party represented
by obligations under a lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP.
“CaseStack” shall mean CaseStack, Inc. or any of its Affiliates.
“CaseStack Documents” shall mean all documents and agreements entered into by CCA or
any of its Affiliates and CaseStack pursuant to which CaseStack provides supply chain
management services including warehousing, transportation, and/or reporting to CCA, including
all exhibits, schedules and disclosure letters related thereto, and all amendments and modifications
thereto.
“Cash Management Products and Services” shall mean agreements or other arrangements
under which Agent or any Lender or any Affiliate of Agent or a Lender provides any of the
following products or services to any Loan Party: (a) credit cards; (b) credit card processing
services; (c) debit cards and stored value cards; (d) commercial cards; (e) automated clearing
house transactions; and (f) cash management and treasury management services and products,
including without limitation controlled disbursement accounts or services, lockboxes, automated
clearinghouse transactions, overdrafts, interstate depository network services. The indebtedness,
obligations and liabilities of any Loan Party to the provider of any Cash Management Products
and Services (including all obligations and liabilities owing to such provider in respect of any
returned items deposited with such provider) (the “Cash Management Liabilities”) shall be
“Obligations” hereunder, guaranteed obligations under the Guaranty and secured obligations under
any Guarantor Security Agreement, as applicable, and otherwise treated as Obligations for
purposes of each of the Other Documents. The Liens securing the Cash Management Products
and Services shall be pari passu with the Liens securing all other Obligations under this Agreement
and the Other Documents, subject to the express provisions of Section 11.5.
“Cash Management Liabilities” shall have the meaning provided in the definition of “Cash
Management Products and Services.”
“CCA” shall have the meaning set forth in the preamble to this Agreement.
“CEA” shall mean the Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended from
time to time, and any successor statute.
“CFTC” shall mean the Commodity Futures Trading Commission.
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“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. §§9601 et seq.
“Change in Law” shall mean the occurrence, after the Closing Date, of any of the
following: (a) the adoption or taking effect of any Applicable Law; (b) any change in any
Applicable Law or in the administration, implementation, interpretation or application thereof by
any Governmental Body; or (c) the making or issuance of any request, rule, guideline or directive
(whether or not having the force of law) by any Governmental Body; provided that
notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and
Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or
directives thereunder or issued in connection therewith (whether or not having the force of
Applicable Law) and (y) all requests, rules, regulations, guidelines, interpretations or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities (whether or not having the force of law), in each case pursuant to Basel III, shall in
each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued,
promulgated or implemented.
“Change of Control” shall mean: (a) any person or group of persons (within the meaning
of Section 13(d) or 14(a) of the Exchange Act) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of more than 50%
of the voting Equity Interests of CCA; (b) during any period of 12 consecutive months, a majority
of the members of the board of directors of CCA cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of that board, or (iii)
whose election or nomination to that board was approved by individuals referred to in clauses (i)
and (ii) above constituting at the time of such election or nomination at least a majority of that
board; (c) ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cease to hold office as or perform the day-to-day duties of the Chief
Executive Officer and Chairman of CCA; or (d) any merger, consolidation or sale of substantially
all of the property or assets of any Loan Party.
“Charges” shall mean all taxes, charges, fees, imposts, levies or other assessments,
including all net income, gross income, gross receipts, sales, use, ad valorem, value added, transfer,
franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social
security, unemployment, excise, severance, stamp, occupation and property taxes, custom duties,
fees, assessments, liens, claims and charges of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts, imposed by any taxing or other authority,
domestic or foreign (including the Pension Benefit Guaranty Corporation or any environmental
agency or superfund), upon the Collateral, any Loan Party or any of its Affiliates.
“CIP Regulations” shall have the meaning set forth in Section 14.12 hereof.
“Claims” shall have the meaning set forth in Section 16.5 hereof.
“Closing Date” shall mean February 5, 2018 or such other date as may be agreed to in
writing by the parties hereto.
6
“Code” shall mean the Internal Revenue Code of 1986, as the same may be amended or
supplemented from time to time, and any successor statute of similar import, and the rules and
regulations thereunder, as from time to time in effect.
“Collateral” shall mean and include all right, title and interest of each Loan Party in all of
the following property and assets of such Loan Party, in each case whether now existing or
hereafter arising or created and whether now owned or hereafter acquired and wherever located:
(a) all Receivables and all supporting obligations relating thereto;
(b) all equipment and fixtures;
(c) all general intangibles (including all payment intangibles and all software)
and all supporting obligations related thereto;
(d) all Inventory;
(e) all Subsidiary Stock, securities, investment property, and financial assets;
(f) all contract rights, rights of payment which have been earned under a
contract rights, chattel paper (including electronic chattel paper and tangible chattel paper),
commercial tort claims (whether now existing or hereafter arising); documents (including all
warehouse receipts and bills of lading), deposit accounts, goods, instruments (including
promissory notes), letters of credit (whether or not the respective letter of credit is evidenced by a
writing) and letter-of-credit rights, cash, certificates of deposit, insurance proceeds (including
hazard, flood and credit insurance), security agreements, eminent domain proceeds, condemnation
proceeds, tort claim proceeds and all supporting obligations;
(g) all ledger sheets, ledger cards, files, correspondence, records, books of
account, business papers, computers, computer software (owned by any Loan Party or in which it
has an interest), computer programs, tapes, disks and documents, including all of such property
relating to the property described in clauses (a) through (f) of this definition; and
(h) all proceeds and products of the property described in clauses (a) through
(g) of this definition, in whatever form. It is the intention of the parties that if Agent shall fail to
have a perfected Lien in any particular property or assets of any Loan Party for any reason
whatsoever, but the provisions of this Agreement and/or of the Other Documents, together with all
financing statements and other public filings relating to Liens filed or recorded by Agent against
Loan Parties, would be sufficient to create a perfected Lien in any property or assets that such
Loan Party may receive upon the sale, lease, license, exchange, transfer or disposition of such
particular property or assets, then all such “proceeds” of such particular property or assets shall be
included in the Collateral as original collateral that is the subject of a direct and original grant of a
security interest as provided for herein and in the Other Documents (and not merely as proceeds
(as defined in Article 9 of the Uniform Commercial Code) in which a security interest is created
or arises solely pursuant to Section 9-315 of the Uniform Commercial Code).
“Commitment Transfer Supplement” shall mean a document in the form of Exhibit 16.3
hereto, properly completed and otherwise in form and substance satisfactory to Agent by which
7
the Purchasing Lender purchases and assumes a portion of the obligation of Lenders to make
Advances under this Agreement.
“Compliance Certificate” shall mean a compliance certificate substantially in the form of
Exhibit 1.2(a) hereto to be signed by the Chief Financial Officer or Controller of Borrowing Agent.
“Consents” shall mean all filings and all licenses, permits, consents, approvals,
authorizations, qualifications and orders of Governmental Bodies and other third parties, domestic
or foreign, necessary to carry on any Loan Party’s business or necessary (including to avoid a
conflict or breach under any agreement, instrument, other document, license, permit or other
authorization) for the execution, delivery or performance of this Agreement or the Other
Documents, including any Consents required under all applicable federal, state or other Applicable
Law. For purposes of this Agreement and the Other Documents, “Consents” shall not include any
Lien Waiver Agreement or Licensor/Agent Agreement.
“Consigned Inventory” shall mean Inventory of any Loan Party that is in the possession of
another Person on a consignment, sale or return, or other basis that does not constitute a final sale
and acceptance of such Inventory.
“Contract Rate” shall have the meaning set forth in Section 3.1 hereof.
“Controlled Group” shall mean, at any time, each Loan Party and all members of a
controlled group of corporations and all trades or businesses (whether or not incorporated) under
common control and all other entities which, together with any Loan Party, are treated as a single
employer under Section 414 of the Code.
“Covered Entity” shall mean (a) each Loan Party, each of Loan Party’s Subsidiaries, all
Guarantors and all pledgors of Collateral and (b) each Person that, directly or indirectly, is in
control of a Person described in clause (a) above. For purposes of this definition, control of a
Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the
issued and outstanding equity interests having ordinary voting power for the election of directors
of such Person or other Persons performing similar functions for such Person, or (y) power to
direct or cause the direction of the management and policies of such Person whether by ownership
of equity interests, contract or otherwise.
“Customer” shall mean and include the account debtor with respect to any Receivable
and/or the prospective purchaser of goods, services or both with respect to any contract or contract
right, and/or any party who enters into or proposes to enter into any contract or other arrangement
with any Loan Party, pursuant to which such Loan Party is to deliver any personal property or
perform any services.
“Customs” shall have the meaning set forth in Section 2.13(b) hereof.
“Daily LIBOR Rate” shall mean, for any day, the rate per annum determined by the Agent
by dividing (x) the Published Rate by (y) a number equal to 1.00 minus the Reserve Percentage.
“Debt Payments” shall mean for any period, in each case, all cash actually expended by
any Loan Party to make: (a) interest payments on any Advances hereunder, plus (b) scheduled
8
principal payments on the Term Loan, plus (c) payments for all fees, commissions and charges set
forth herein, plus (d) payments on Capitalized Lease Obligations, plus (e) payments with respect
to any other Indebtedness for borrowed money.
“Default” shall mean an event, circumstance or condition which, with the giving of notice
or passage of time or both, would constitute an Event of Default.
“Default Rate” shall have the meaning set forth in Section 3.1 hereof.
“Defaulting Lender” shall mean any Lender that: (a) has failed, within two (2) Business
Days of the date required to be funded or paid, to (i) fund any portion of its Revolving Commitment
Percentage and/or Term Loan Commitment Percentage, as applicable, of Advances, (ii) if
applicable, fund any portion of its Participation Commitment in Letters of Credit or Swing Loans
or (iii) pay over to Agent, Issuer, Swing Loan Lender or any Lender any other amount required to
be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies Agent in
writing that such failure is the result of such Lender’s good faith determination that a condition
precedent to funding (specifically identified and including a particular Default or Event of Default,
if any) has not been satisfied; (b) has notified Loan Parties or Agent in writing, or has made a
public statement to the effect, that it does not intend or expect to comply with any of its funding
obligations under this Agreement (unless such writing or public statement indicates that such
position is based on such Lender’s good faith determination that a condition precedent (specifically
identified and including a particular Default or Event of Default, if any) to funding a loan under
this Agreement cannot be satisfied) or generally under other agreements in which it commits to
extend credit; (c) has failed, within two (2) Business Days after request by Agent, acting in good
faith, to provide a certification in writing from an authorized officer of such Lender that it will
comply with its obligations (and is financially able to meet such obligations) to fund prospective
Advances and, if applicable, participations in then outstanding Letters of Credit and Swing Loans
under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant
to this clause (c) upon Agent’s receipt of such certification in form and substance satisfactory to
the Agent; (d) has become the subject of an Insolvency Event; or (e) has failed at any time to
comply with the provisions of Section 2.6(e) with respect to purchasing participations from the
other Lenders, whereby such Lender’s share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and payable to all of the Lenders.
“Depository Accounts” shall have the meaning set forth in Section 4.8(h) hereof.
“Designated Lender” shall have the meaning set forth in Section 16.2(d) hereof.
“Document” shall have the meaning given to the term “document” in the Uniform
Commercial Code.
“Dollar” and the sign “$” shall mean lawful money of the United States of America.
“Domestic Rate Loan” shall mean any Advance that bears interest based upon the Alternate
Base Rate.
“Drawing Date” shall have the meaning set forth in Section 2.14(b) hereof.
9
“EBITDA” shall mean for any period with respect to Loan Parties on a Consolidated Basis,
the sum of (a) net income (or loss) for such period (excluding extraordinary gains), plus (b) all
interest expense for such period, plus (c) all charges against income for such period for federal,
state and local taxes, plus (d) depreciation expenses for such period, plus (e) amortization expenses
for such period.
“Effective Date” means the date indicated in a document or agreement to be the date on
which such document or agreement becomes effective, or, if there is no such indication, the date
of execution of such document or agreement.
“Eligible Contract Participant” shall mean an “eligible contract participant” as defined in
the CEA and regulations thereunder.
“Eligibility Date” shall mean, with respect to each Loan Party and each Swap, the date on
which this Agreement or any Other Document becomes effective with respect to such Swap (for
the avoidance of doubt, the Eligibility Date shall be the Effective Date of such Swap if this
Agreement or any Other Document is then in effect with respect to such Loan Party, and otherwise
it shall be the Effective Date of this Agreement and/or such Other Document(s) to which such
Loan Party is a party).
“Eligible Insured Foreign Receivable or Receivables” shall mean Receivables that meet
the requirements of Eligible Receivables, except clause (f) of such definition, provided that such
Receivable is credit insured (the insurance carrier, amount and terms of such insurance shall be
reasonably acceptable to Agent and shall name Agent as beneficiary or loss payee, as applicable).
“Eligible Inventory” shall mean and include Inventory of a Borrower, excluding work in
process, valued at the lower of cost or market value, determined on a first-in-first-out basis, which
is not, in Agent’s opinion, obsolete, slow moving or unmerchantable and which Agent, in its sole
discretion, shall not deem ineligible Inventory, based on such considerations as Agent may from
time to time deem appropriate including whether the Inventory is subject to a perfected, first
priority security interest in favor of Agent and no other Lien (other than a Permitted Encumbrance).
In addition, Inventory shall not be Eligible Inventory if it: (a) does not conform to all standards
imposed by any Governmental Body which has regulatory authority over such goods or the use or
sale thereof; (b) is in-transit within or without the United States; (c) is located outside the
continental United States or at a location that is not otherwise in compliance with this Agreement;
(d) constitutes Consigned Inventory; (e) is the subject of an Intellectual Property Claim; (f) is
subject to a License Agreement that limits, conditions or restricts the applicable Borrower’s or
Agent’s right to sell or otherwise dispose of such Inventory, unless Agent is a party to a
Licensor/Agent Agreement with the Licensor under such License Agreement (or Agent shall agree
otherwise in its sole discretion after establishing reserves against the Formula Amount with respect
thereto as Agent shall deem appropriate in its sole discretion); (g) is situated at a location not
owned by a Borrower unless the owner or occupier of such location has executed in favor of Agent
a Lien Waiver Agreement (or Agent shall agree otherwise in its sole discretion after establishing
reserves against the Formula Amount with respect thereto as Agent shall deem appropriate in its
sole discretion); or (h) or if the sale of such Inventory would result in an ineligible Receivable.
10
“Eligible Receivables” shall mean and include, each Receivable of a Borrower arising in
the Ordinary Course of Business and which Agent, in its sole credit judgment, shall deem to be an
Eligible Receivable, based on such considerations as Agent may from time to time deem
appropriate. A Receivable shall not be deemed eligible unless such Receivable is subject to
Agent’s first priority perfected security interest and no other Lien (other than Permitted
Encumbrances), and is evidenced by an invoice or other documentary evidence satisfactory to
Agent. In addition, no Receivable shall be an Eligible Receivable if:
(a) it arises out of a sale made by any Borrower to an Affiliate of any Borrower
or to a Person controlled by an Affiliate of any Borrower;
(b) it is due or unpaid more than ninety (90) days after the original invoice
(unless supported by a letter of credit in which case it shall not be due or unpaid more than one-
hundred-eighty (180) days from the date of the ▇▇▇▇ of lading) date or sixty (60) days after the
original due date;
(c) fifty percent (50%) or more of the Receivables from such Customer are not
deemed Eligible Receivables hereunder;
(d) any covenant, representation or warranty contained in this Agreement with
respect to such Receivable has been breached;
(e) an Insolvency Event shall have occurred with respect to such Customer;
(f) the sale is to a Customer outside the continental United States of America
or a province of Canada that has not adopted the Personal Property Security Act of Canada, unless
the sale is on letter of credit, guaranty or acceptance terms, in each case acceptable to Agent in its
sole discretion or such Receivable constitutes an Eligible Insured Foreign Receivable;
(g) the sale to the Customer is on a ▇▇▇▇-and-hold, guaranteed sale, sale-and-
return, sale on approval, consignment or any other repurchase or return basis or is evidenced by
chattel paper;
(h) Agent believes, in its sole judgment, that collection of such Receivable is
insecure or that such Receivable may not be paid by reason of the Customer’s financial inability
to pay;
(i) the Customer is the United States of America, any state or any department,
agency or instrumentality of any of them, unless the applicable Borrower assigns its right to
payment of such Receivable to Agent pursuant to the Assignment of Claims Act of 1940, as
amended (31 U.S.C. Sub-Section 3727 et seq. and 41 U.S.C. Sub-Section 15 et seq.) or has
otherwise complied with other applicable statutes or ordinances;
(j) the goods giving rise to such Receivable have not been delivered to and
accepted by the Customer or the services giving rise to such Receivable have not been performed
by the applicable Borrower and accepted by the Customer or the Receivable otherwise does not
represent a final sale;
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(k) the Receivables of the Customer exceed a credit limit determined by Agent,
in its sole discretion, to the extent such Receivable exceeds such limit;
(l) the Receivable is subject to any offset, deduction, defense, dispute, credits
or counterclaim (to the extent of such offset, deduction, defense or counterclaim, provided such
offset, deduction, defense or counterclaim is not known to be greater than 50% of the face amount
of the Receivable) or the Customer is also a creditor or supplier of a Borrower or the Receivable
is contingent in any respect or for any reason;
(m) the applicable Borrower has made any agreement with any Customer for
any deduction therefrom, except for discounts or allowances made in the Ordinary Course of
Business for prompt payment, all of which discounts or allowances are reflected in the calculation
of the face value of each respective invoice related thereto;
(n) any return, rejection or repossession of the merchandise has occurred or the
rendition of services has been disputed;
(o) such Receivable is not payable to a Borrower;
(p) if the aggregate amount of Receivables owing by any Customer exceeds
fifty percent (50%) of the aggregate amount of all otherwise Eligible Receivables, each Receivable
of such Customer in excess of such threshold; provided, however, that, upon prior written notice
to Agent, solely with respect to Receivables owing by Walmart, Borrowers may increase the fifty
percent (50%) threshold to sixty percent (60%) for a sixty (60) consecutive day period no more
than two (2) times in any fiscal year; or
(q) such Receivable is not otherwise satisfactory to Agent as determined in
good faith by Agent in the exercise of its discretion in a reasonable manner.
“▇▇▇▇▇▇▇” shall mean The ▇▇▇▇▇▇▇ Group or any of its Affiliates.
“▇▇▇▇▇▇▇ Documents” shall mean all documents and agreements entered into by CCA or
any of its Affiliates and ▇▇▇▇▇▇▇ pursuant to which ▇▇▇▇▇▇▇ provides customer service,
collections, electronic data interchange management, and/or order fulfillment services to CCA,
including all exhibits, schedules and disclosure letters related thereto, and all amendments and
modifications thereto.
“Environmental Complaint” shall have the meaning set forth in Section 9.3(b) hereof.
“Environmental Laws” shall mean all federal, state and local environmental, land use,
zoning, health, chemical use, safety and sanitation laws, statutes, ordinances and codes as well as
common laws, relating to the protection of the environment, human health and/or governing the
use, storage, treatment, generation, transportation, processing, handling, production or disposal of
Hazardous Materials and the rules, regulations, policies, guidelines, interpretations, decisions,
orders and directives of federal, state, international and local governmental agencies and
authorities with respect thereto.
12
“Equity Interests” shall mean, with respect to any Person, any and all shares, rights to
purchase, options, warrants, general, limited or limited liability partnership interests, member
interests, participation or other equivalents of or interest in (regardless of how designated) equity
of such Person, whether voting or nonvoting, including common stock, preferred stock, convertible
securities or any other “equity security” (as such term is defined in Rule 3a11-1 of the General
Rules and Regulations promulgated by the SEC under the Exchange Act), including in each case
all of the following rights relating to such Equity Interests, whether arising under the
Organizational Documents of the Person issuing such Equity Interests (the “issuer”) or under the
applicable laws of such issuer’s jurisdiction of organization relating to the formation, existence
and governance of corporations, limited liability companies or partnerships or business trusts or
other legal entities, as the case may be: (i) all economic rights (including all rights to receive
dividends and distributions) relating to such Equity Interests; (ii) all voting rights and rights to
consent to any particular action(s) by the applicable issuer; (iii) all management rights with respect
to such issuer; (iv) in the case of any Equity Interests consisting of a general partner interest in a
partnership, all powers and rights as a general partner with respect to the management, operations
and control of the business and affairs of the applicable issuer; (v) in the case of any Equity
Interests consisting of the membership/limited liability company interests of a managing member
in a limited liability company, all powers and rights as a managing member with respect to the
management, operations and control of the business and affairs of the applicable issuer; (vi) all
rights to designate or appoint or vote for or remove any officers, directors, manager(s), general
partner(s) or managing member(s) of such issuer and/or any members of any board of
members/managers/partners/directors that may at any time have any rights to manage and direct
the business and affairs of the applicable issuer under its Organizational Documents as in effect
from time to time or under Applicable Law; (vii) all rights to amend the Organizational Documents
of such issuer; (viii) in the case of any Equity Interests in a partnership or limited liability company,
the status of the holder of such Equity Interests as a “partner”, general or limited, or “member” (as
applicable) under the applicable Organizational Documents and/or Applicable Law; and (ix) all
certificates evidencing such Equity Interests.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same
may be amended or supplemented from time to time and the rules and regulations promulgated
thereunder.
“Event of Default” shall have the meaning set forth in Article X hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Hedge Liability or Liabilities” shall mean, with respect to each Loan Party and
Guarantor, each of its Swap Obligations if, and only to the extent that, all or any portion of this
Agreement or any Other Document that relates to such Swap Obligation is or becomes illegal
under the CEA, or any rule, regulation or order of the CFTC, solely by virtue of such Loan Party’s
failure to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap.
Notwithstanding anything to the contrary contained in the foregoing or in any other provision of
this Agreement or any Other Document, the foregoing is subject to the following provisos: (a) if a
Swap Obligation arises under a master agreement governing more than one Swap, this definition
shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which
such guaranty or security interest is or becomes illegal under the CEA, or any rule, regulations or
13
order of the CFTC, solely as a result of the failure by such Loan Party for any reason to qualify as
an Eligible Contract Participant on the Eligibility Date for such Swap; (b) if a guarantee of a Swap
Obligation would cause such obligation to be an Excluded Hedge Liability but the grant of a
security interest would not cause such obligation to be an Excluded Hedge Liability, such Swap
Obligation shall constitute an Excluded Hedge Liability for purposes of the guaranty but not for
purposes of the grant of the security interest; and (c) if there is more than one Loan Party executing
this Agreement or the Other Documents and a Swap Obligation would be an Excluded Hedge
Liability with respect to one or more of such Persons, but not all of them, the definition of Excluded
Hedge Liability or Liabilities with respect to each such Person shall only be deemed applicable to
(i) the particular Swap Obligations that constitute Excluded Hedge Liabilities with respect to such
Person, and (ii) the particular Person with respect to which such Swap Obligations constitute
Excluded Hedge Liabilities.
“Excluded Taxes” shall mean, with respect to Agent, any Lender, Participant, Swing Loan
Lender Issuer or any other recipient of any payment to be made by or on account of any
Obligations, (a) taxes imposed on or measured by its overall net income (however denominated),
and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal
office or applicable lending office is located or, in the case of any Lender, Participant, Swing Loan
Lender or Issuer, in which its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other jurisdiction in
which any Loan Party is located, (c) in the case of a Foreign Lender, any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new lending office) or is attributable to such Foreign Lender’s failure
or inability (other than as a result of a Change in Law) to comply with Section 3.10(e), except to
the extent that such Foreign Lender or Participant (or its assignor or seller of a participation, if
any) was entitled, at the time of designation of a new lending office (or assignment or sale of a
participation), to receive additional amounts from Loan Parties with respect to such withholding
tax pursuant to Section 3.10(a), or (d) any Taxes imposed on any “withholding payment” payable
to such recipient as a result of the failure of such recipient to satisfy the requirements set forth in
the FATCA after December 31, 2012.
“Facility Fee” shall have the meaning set forth in Section 3.3(b) hereof.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with) and any current or future regulations thereunder or
official interpretations thereof.
“Federal Funds Effective Rate” shall mean for any day the rate per annum (based on a year
of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced
by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted
average of the rates on overnight federal funds transactions arranged by federal funds brokers on
the previous trading day, as computed and announced by such Federal Reserve Bank (or any
successor) in substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of
this Agreement; provided, if such Federal Reserve Bank (or its successor) does not announce such
14
rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds
Effective Rate for the last day on which such rate was announced.
“Fixed Charge Coverage Ratio” shall mean, with respect to any fiscal period, the ratio of
(a) EBITDA, minus Unfunded Capital Expenditures made during such period, minus distributions
(including tax distributions) and dividends made during such period, minus cash taxes paid during
such period to (b) all Debt Payments made during such period.
“Flood Laws” shall mean all Applicable Laws relating to policies and procedures that
address requirements placed on federally regulated lenders under the National Flood Insurance
Reform Act of 1994 and other Applicable Laws related thereto.
“Foreign Currency Hedge” shall mean any foreign exchange transaction, including spot
and forward foreign currency purchases and sales, listed or over-the-counter options on foreign
currencies, non-deliverable forwards and options, foreign currency swap agreements, currency
exchange rate price hedging arrangements, and any other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency entered into by any Loan
Party and/or any of their respective Subsidiaries.
“Foreign Currency Hedge Liabilities” shall have the meaning assigned in the definition of
Lender-Provided Foreign Currency Hedge.
“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that in which Loan Parties are resident for tax purposes. For purposes of this definition,
the United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“Foreign Subsidiary” shall mean any Subsidiary of any Person that is not organized or
incorporated in the United States, any State or territory thereof or the District of Columbia.
“Formula Amount” shall have the meaning set forth in Section 2.1(a) hereof.
“GAAP” shall mean generally accepted accounting principles in the United States of
America in effect from time to time.
“Governmental Acts” shall mean any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto Governmental Body.
“Governmental Body” shall mean any nation or government, any state or other political
subdivision thereof or any entity, authority, agency, division or department exercising the
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to a government (including any supra-national bodies such as the European Union or
the European Central Bank) and any group or body charged with setting financial accounting or
regulatory capital rules or standards (including, without limitation, the Financial Accounting
Standards Board, the Bank for International Settlements or the Basel Committee on Banking
Supervision or any successor or similar authority to any of the foregoing).
15
“Guarantor” or “Guarantors” shall mean each Person joined to this Agreement from time
to time as a guarantor and shall extend to all permitted successors and assigns of such Persons and
any other Person who may hereafter guarantee payment or performance of the whole or any part
of the Obligations.
“Guarantor Security Agreement” shall mean any security agreement executed by any
Guarantor in favor of Agent securing the Obligations or the Guaranty of such Guarantor, in form
and substance satisfactory to Agent.
“Guaranty” shall mean any guaranty of the Obligations executed by a Guarantor in favor
of Agent for its benefit and for the ratable benefit of Lenders, in form and substance satisfactory
to Agent, including Article XVII hereof.
“Hazardous Discharge” shall have the meaning set forth in Section 9.3(b) hereof.
“Hazardous Materials” shall mean, without limitation, any flammable explosives, radon,
radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum products, methane, hazardous materials, Hazardous Wastes, hazardous
or Toxic Substances or related materials as defined in or subject to regulation under Environmental
Laws.
“Hazardous Wastes” shall mean all waste materials subject to regulation under CERCLA,
RCRA or applicable state law, and any other applicable Federal and state laws now in force or
hereafter enacted relating to hazardous waste disposal.
“Hedge Liabilities” shall mean collectively, the Foreign Currency Hedge Liabilities and
the Interest Rate Hedge Liabilities.
“Indebtedness” shall mean, as to any Person at any time, any and all indebtedness,
obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or
indirect, absolute or contingent, or joint or several) of such Person for or in respect of:
(a) borrowed money; (b) amounts received under or liabilities in respect of any note purchase or
acceptance credit facility, and all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments; (c) all Capitalized Lease Obligations; (d) reimbursement obligations
(contingent or otherwise) under any letter of credit agreement, banker’s acceptance agreement or
similar arrangement; (e) obligations under any Interest Rate Hedge, Foreign Currency Hedge, or
other interest rate management device, foreign currency exchange agreement, currency swap
agreement, commodity price protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement; (f) any other advances of credit made to or on behalf of
such Person or other transaction (including forward sale or purchase agreements, capitalized leases
and conditional sales agreements) having the commercial effect of a borrowing of money entered
into by such Person to finance its operations or capital requirements including to finance the
purchase price of property or services and all obligations of such Person to pay the deferred
purchase price of property or services (but not including trade payables and accrued expenses
incurred in the Ordinary Course of Business which are not represented by a promissory note or
other evidence of indebtedness and which are not more than sixty (60) days past due); (g) all Equity
Interests of such Person subject to repurchase or redemption rights or obligations (excluding
16
repurchases or redemptions at the sole option of such Person); (h) all indebtedness, obligations or
liabilities secured by a Lien on any asset of such Person, whether or not such indebtedness,
obligations or liabilities are otherwise an obligation of such Person; (i) all obligations of such
Person for “earnouts”, purchase price adjustments, profit sharing arrangements, deferred purchase
money amounts and similar payment obligations or continuing obligations of any nature of such
Person arising out of purchase and sale contracts; (j) off-balance sheet liabilities and/or pension
plan liabilities of such Person; and (k) any guaranty of any indebtedness, obligations or liabilities
of a type described in the foregoing clauses (a) through (j).
“Indemnified Party” shall have the meaning set forth in Section 16.5 hereof.
“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.
“Ineligible Security” shall mean any security which may not be underwritten or dealt in by
member banks of the Federal Reserve System under Section 16 of the Banking Act of 1933 (12
U.S.C. Section 24, Seventh), as amended.
“Insolvency Event” shall mean, with respect to any Person, including without limitation
any Lender, such Person or such Person’s direct or indirect parent company (a) becomes the subject
of a bankruptcy or insolvency proceeding (including any proceeding under Title 11 of the United
States Code), or regulatory restrictions, (b) has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it or has called a meeting of its creditors, (c) admits in
writing its inability, or be generally unable, to pay its debts as they become due or cease operations
of its present business, (d) with respect to a Lender, such Lender is unable to perform hereunder
due to the application of Applicable Law, or (e) in the good faith determination of Agent, has taken
any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such
proceeding or appointment of a type described in clauses (a) or (b), provided that an Insolvency
Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership
interest, in such Person or such Person’s direct or indirect parent company by a Governmental
Body or instrumentality thereof if, and only if, such ownership interest does not result in or provide
such Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Body or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.
“Intellectual Property” shall mean property constituting a patent, copyright, trademark (or
any application in respect of the foregoing), service ▇▇▇▇, copyright, copyright application, trade
name, mask work, trade secrets, design right, assumed name or license or other right to use any of
the foregoing under Applicable Law.
“Intellectual Property Claim” shall mean the assertion, by any means, by any Person of a
claim that any Loan Party’s ownership, use, marketing, sale or distribution of any Inventory,
equipment, Intellectual Property or other property or asset is violative of any ownership of or right
to use any Intellectual Property of such Person.
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“Interest Period” shall mean the period provided for any LIBOR Rate Loan pursuant to
Section 2.2(b) hereof.
“Interest Rate Hedge” shall mean an interest rate exchange, collar, cap, swap, floor,
adjustable strike cap, adjustable strike corridor, cross-currency swap or similar agreements entered
into by any Loan Party and/or their respective Subsidiaries in order to provide protection to, or
minimize the impact upon, such Loan Party and/or their respective Subsidiaries of increasing
floating rates of interest applicable to Indebtedness.
“Interest Rate Hedge Liabilities” shall have the meaning assigned in the definition of
Lender-Provided Interest Rate Hedge.
“Inventory” shall mean and include as to each Loan Party all of such Loan Party’s
inventory (as defined in Article 9 of the Uniform Commercial Code) and all of such Loan Party’s
goods, merchandise and other personal property, wherever located, to be furnished under any
consignment arrangement, contract of service or held for sale or lease, all raw materials, work in
process, finished goods and materials and supplies of any kind, nature or description which are or
might be used or consumed in such Loan Party’s business or used in selling or furnishing such
goods, merchandise and other personal property, and all Documents.
“Inventory Advance Rate” shall have the meaning set forth in Section 2.1(a)(y)(ii) hereof.
“Inventory NOLV Advance Rate” shall have the meaning set forth in Section 2.1(a)(y)(ii)
hereof.
“Issuer” shall mean (i) Agent in its capacity as the issuer of Letters of Credit under this
Agreement and (ii) any other Lender which Agent in its discretion shall designate as the issuer of
and cause to issue any particular Letter of Credit under this Agreement in place of Agent as issuer.
“Law” shall mean any law(s) (including common law), constitution, statute, treaty,
regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any
settlement arrangement, by agreement, consent or otherwise, with any Governmental Body,
foreign or domestic.
“Leasehold Interests” shall mean all of each Loan Party’s right, title and interest in and to,
and as lessee of, the premises identified as leased Real Property on Schedule 4.4(b)(iv) hereto.
“Lender” and “Lenders” shall have the meaning ascribed to such term in the preamble to
this Agreement and shall include each Person which becomes a transferee, successor or assign of
any Lender. For the purpose of provision of this Agreement or any Other Document which
provides for the granting of a security interest or other Lien to the Agent for the benefit of Lenders
as security for the Obligations, “Lenders” shall include any Affiliate of a Lender to which such
Obligation (specifically including any Hedge Liabilities and any Cash Management Liabilities) is
owed.
“Lender-Provided Foreign Currency Hedge” shall mean a Foreign Currency Hedge which
is provided by any Lender and for which such Lender confirms to Agent in writing prior to the
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execution thereof that it: (a) is documented in a standard International Swap Dealers Association,
Inc. Master Agreement or another reasonable and customary manner; (b) provides for the method
of calculating the reimbursable amount of the provider’s credit exposure in a reasonable and
customary manner; and (c) is entered into for hedging (rather than speculative) purposes. The
liabilities owing to the provider of any Lender-Provided Foreign Currency Hedge (the “Foreign
Currency Hedge Liabilities”) by any Loan Party or any of their respective Subsidiaries that is party
to such Lender-Provided Foreign Currency Hedge shall, for purposes of this Agreement and all
Other Documents be “Obligations” of such Person and of each other Loan Party, be guaranteed
obligations under any Guaranty and secured obligations under any Guarantor Security Agreement,
as applicable, and otherwise treated as Obligations for purposes of the Other Documents, except
to the extent constituting Excluded Hedge Liabilities of such Person. The Liens securing the
Foreign Currency Hedge Liabilities shall be pari passu with the Liens securing all other
Obligations under this Agreement and the Other Documents, subject to the express provisions of
Section 11.5 hereof.
“Lender-Provided Interest Rate Hedge” shall mean an Interest Rate Hedge which is
provided by any Lender and with respect to which such Lender confirms to Agent in writing prior
to the execution thereof that it: (a) is documented in a standard International Swap Dealers
Association, Inc. Master Agreement or another reasonable and customary manner; (b) provides for
the method of calculating the reimbursable amount of the provider’s credit exposure in a
reasonable and customary manner; and (c) is entered into for hedging (rather than speculative)
purposes. The liabilities owing to the provider of any Lender-Provided Interest Rate Hedge (the
“Interest Rate Hedge Liabilities”) by any Loan Party or any of their respective Subsidiary that is
party to such Lender-Provided Interest Rate Hedge shall, for purposes of this Agreement and all
Other Documents be “Obligations” of such Person and of each other Loan Party and Guarantor,
be guaranteed obligations under any Guaranty and secured obligations under any Guarantor
Security Agreement, as applicable, and otherwise treated as Obligations for purposes of the Other
Documents, except to the extent constituting Excluded Hedge Liabilities of such Person. The Liens
securing the Hedge Liabilities shall be pari passu with the Liens securing all other Obligations
under this Agreement and the Other Documents, subject to the express provisions of Section 11.5
hereof.
“Letter of Credit Application” shall have the meaning set forth in Section 2.12(a) hereof.
“Letter of Credit Borrowing” shall have the meaning set forth in Section 2.14(d) hereof.
“Letter of Credit Fees” shall have the meaning set forth in Section 3.2 hereof
“Letter of Credit Sublimit” shall mean $1,500,000.
“Letters of Credit” shall have the meaning set forth in Section 2.11 hereof.
“LIBOR Alternate Source” shall have the meaning set forth in the definition of LIBOR
Rate.
“LIBOR Rate” shall mean for any LIBOR Rate Loan for the then current Interest Period
relating thereto, the interest rate per annum determined by Agent by dividing (the resulting quotient
rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (a) the rate which appears
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on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates
at which Dollar deposits are offered by leading banks in the London interbank deposit market), or
the rate which is quoted by another source selected by Agent as an authorized information vendor
for the purpose of displaying rates at which Dollar deposits are offered by leading banks in the
London interbank deposit market (a “LIBOR Alternate Source”), at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest Period as the
London interbank offered rate for Dollars for an amount comparable to such LIBOR Rate Loan
and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at
any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or
any LIBOR Alternate Source, a comparable replacement rate determined by Agent at such time
(which determination shall be conclusive absent manifest error)), by (b) a number equal to 1.00
minus the Reserve Percentage; provided, however, that if the LIBOR Rate determined as provided
above would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
The LIBOR Rate shall be adjusted with respect to any LIBOR Rate Loan that is outstanding
on the effective date of any change in the Reserve Percentage as of such effective date. Agent
shall give reasonably prompt notice to the Borrowing Agent of the LIBOR Rate as determined or
adjusted in accordance herewith, which determination shall be conclusive absent manifest error.
“LIBOR Rate Loan” shall mean any Advance that bears interest based on the LIBOR Rate.
“License Agreement” shall mean any agreement between any Loan Party and a Licensor
pursuant to which such Loan Party is authorized to use any Intellectual Property in connection
with the manufacturing, marketing, sale or other distribution of any Inventory of such Loan Party
or otherwise in connection with such Loan Party’s business operations.
“Licensor” shall mean any Person from whom any Loan Party obtains the right to use
(whether on an exclusive or non-exclusive basis) any Intellectual Property in connection with such
Loan Party’s manufacture, marketing, sale or other distribution of any Inventory or otherwise in
connection with such Loan Party’s business operations.
“Licensor/Agent Agreement” shall mean an agreement between Agent and a Licensor, in
form and substance satisfactory to Agent, by which Agent is given the unqualified right, vis-á-vis
such Licensor, to enforce Agent’s Liens with respect to and to dispose of any Loan Party’s
Inventory with the benefit of any Intellectual Property applicable thereto, irrespective of such Loan
Party’s default under any License Agreement with such Licensor.
“Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, security
interest, lien (whether statutory or otherwise), Charge, claim or encumbrance, or preference,
priority or other security agreement or preferential arrangement held or asserted in respect of any
asset of any kind or nature whatsoever including any conditional sale or other title retention
agreement, any lease having substantially the same economic effect as any of the foregoing, and
the filing of, or agreement to give, any financing statement under the Uniform Commercial Code
or comparable law of any jurisdiction.
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“Lien Waiver Agreement” shall mean an agreement which is executed in favor of Agent
by a Person who owns or occupies premises at which any Collateral may be located from time to
time in form and substance satisfactory to Agent.
“Loan Parties” shall mean collectively, Borrowers and Guarantors and “Loan Party” shall
mean individually each Borrower and each Guarantor. As of the Closing Date, the only Loan Party
is CCA.
“Loan Parties on a Consolidated Basis” shall mean the consolidation in accordance with
GAAP of the accounts or other items of Loan Parties and their respective Subsidiaries.
“Material Adverse Effect” shall mean a material adverse effect on (a) the condition
(financial or otherwise), results of operations, assets, business or properties of the Loan Parties and
the Guarantors, taken as a whole, (b) any Loan Party’s ability to duly and punctually pay or
perform the Obligations in accordance with the terms thereof, (c) the value of the Collateral, or
Agent’s Liens on the Collateral or the priority of any such Lien, provided, that notwithstanding
the foregoing, the lack of perfection or priority of a Lien on any of the Collateral in favor of the
Agent solely in respect of the Collateral with an aggregate value not in excess of $50,000 (valued
at the fair market value on Collateral other than cash) shall not be deemed a “Material Adverse
Effect,” or (d) the practical realization of the benefits of Agent’s and each Lender’s rights and
remedies under this Agreement and the Other Documents.
“Material Contract” shall mean any contract, agreement, instrument, permit, lease or
license, written or oral, of any Loan Party, which is material to any Loan Party’s business or which
the failure to comply with could reasonably be expected to result in a Material Adverse Effect.
“Maximum Swing Loan Advance Amount” shall mean $450,000.
“Maximum Revolving Advance Amount” shall mean $4,500,000.
“Maximum Undrawn Amount” shall mean, with respect to any outstanding Letter of Credit
as of any date, the amount of such Letter of Credit that is or may become available to be drawn,
including all automatic increases provided for in such Letter of Credit, whether or not any such
automatic increase has become effective.
“Modified Commitment Transfer Supplement” shall have the meaning set forth in Section
16.3(d) hereof.
“Multiemployer Plan” shall mean a “multiemployer plan” as defined in Sections 3(37) or
4001(a)(3) of ERISA to which contributions are required or, within the preceding five plan years,
were required by any Loan Party or any member of the Controlled Group.
“Multiple Employer Plan” shall mean a Plan which has two or more contributing sponsors
(including any Loan Party or any member of the Controlled Group) at least two of whom are not
under common control, as such a plan is described in Section 4064 of ERISA.
“Non-Defaulting Lender” shall mean, at any time, any Lender holding a Revolving
Commitment that is not a Defaulting Lender at such time.
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“Non-Qualifying Party” shall mean any Loan Party that on the Eligibility Date fails for any
reason to qualify as an Eligible Contract Participant.
“Note” shall mean collectively, the Term Note, the Revolving Credit Note and the Swing
Loan Note.
“Obligations” shall mean and include any and all loans (including without limitation, all
Advances and Swing Loans), advances, debts, liabilities, obligations (including without limitation
all reimbursement obligations and cash collateralization obligations with respect to Letters of
Credit issued hereunder), covenants and duties owing by any Loan Party or any Subsidiary of any
Loan Party to Issuer, Swing Loan Lender, Lenders or Agent (or to any other direct or indirect
subsidiary or affiliate of Issuer, Swing Loan Lender, any Lender or Agent) of any kind or nature,
present or future (including any interest or other amounts accruing thereon, any fees accruing under
or in connection therewith, any costs and expenses of any Person payable by any Loan Party and
any indemnification obligations payable by any Loan Party arising or payable after maturity, or
after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding relating to any Loan Party, whether or not a claim for post-filing
or post-petition interest, fees or other amounts is allowable or allowed in such proceeding),
whether direct or indirect (including those acquired by assignment or participation), absolute or
contingent, joint or several, due or to become due, now existing or hereafter arising, contractual or
tortious, liquidated or unliquidated, in connection with (i) this Agreement, the Other Documents
or under any other agreement between Issuer, Agent or Lenders and any Loan Party and any
amendments, extensions, renewals or increases and all costs and expenses of Issuer, Agent and
any Lender incurred in the documentation, negotiation, modification, enforcement, collection or
otherwise in connection with any of the foregoing, including but not limited to reasonable and
documented attorneys’ fees and expenses and all obligations of any Loan Party to Issuer, Agent or
Lenders to perform acts or refrain from taking any action, (ii) all Hedge Liabilities and (iii) all
Cash Management Liabilities. Notwithstanding anything to the contrary contained in the
foregoing, the Obligations shall not include any Excluded Hedge Liabilities.
“Obsolete Inventory” shall mean obsolete, slow moving, unmerchantable or surplus
Inventory that is not material to the conduct of the Loan Parties’ business in the Ordinary Course
of Business, as shall be designated by the Loan Parties from time to time in connection with the
Inventory reports delivered to Agent pursuant to Section 9.2.
“OHL” shall mean ▇▇▇▇▇▇-▇▇▇▇▇▇ Logistics or any of its Affiliates.
“OHL Documents” shall mean all documents and agreements entered into by CCA or any
of its Affiliates and OHL pursuant to which OHL provides warehousing and/or shipping functions
to CCA, including all exhibits, schedules and disclosure letters related thereto, and all amendments
and modifications thereto.
“Ordinary Course of Business” shall mean, with respect to any Loan Party, the ordinary
course of such Loan Party’s business as conducted on the Closing Date and reasonable extensions
thereof.
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“Organizational Documents” shall mean, with respect to any Person, any charter, articles
or certificate of incorporation, certificate of organization, registration or formation, certificate of
partnership or limited partnership, bylaws, operating agreement, limited liability company
agreement, or partnership agreement of such Person and any and all other applicable documents
relating to such Person’s formation, organization or entity governance matters (including any
shareholders’ or equity holders’ agreement or voting trust agreement) and specifically includes,
without limitation, any certificates of designation for preferred stock or other forms of preferred
equity.
“Other Documents” shall mean any Note, the Perfection Certificate, any Guaranty, any
Guarantor Security Agreement, any Lender-Provided Interest Rate Hedge, any Lender-Provided
Foreign Currency Hedge, and any and all other agreements, instruments and documents, including
intercreditor agreements, guaranties, pledges, powers of attorney, consents, interest or currency
swap agreements or other similar agreements and all other writings heretofore, now or hereafter
executed by any Loan Party and/or delivered to Agent or any Lender in respect of the transactions
contemplated by this Agreement, in each case together with all extensions, renewals, amendments,
supplements, modifications, substitutions and replacements thereto and thereof.
“Other Taxes” shall mean all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any Other Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any Other Document.
“Out-of-Formula Loans” shall have the meaning set forth in Section 16.2(e) hereof.
“Overnight Bank Funding Rate” shall mean, for any day, the rate comprised of both
overnight federal funds and overnight eurocurrency borrowings by U.S.-managed banking offices
of depository institutions, as such composite rate shall be determined by the Federal Reserve Bank
of New York (or any successor) as set forth on its public website from time to time, and as
published on the next succeeding Business Day as the overnight bank funding rate by the Federal
Reserve Bank of New York (or any successor) (or by such other recognized electronic source (such
as Bloomberg) selected by the Agent for the purpose of displaying such rate); provided, that if
such day is not a Business Day, the Overnight Bank Funding Rate for such day shall be such rate
on the immediately preceding Business Day; provided, further, that if such rate shall at any time,
for any reason, no longer exist, a comparable replacement rate determined by the Agent at such
time (which determination shall be conclusive absent manifest error). The rate of interest charged
shall be adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate
without notice to the Borrowers.
“Parent” of any Person shall mean a corporation or other entity owning, directly or
indirectly, 50% or more of the Equity Interests issued by such Person having ordinary voting power
to elect a majority of the directors of such Person, or other Persons performing similar functions
for any such Person.
“Participant” shall mean each Person who shall be granted the right by any Lender to
participate in any of the Advances and who shall have entered into a participation agreement in
form and substance satisfactory to such Lender.
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“Participation Advance” shall have the meaning set forth in Section 2.14(d) hereof.
“Participation Commitment” shall mean the obligation hereunder of each Lender holding
a Revolving Commitment to buy a participation equal to its Revolving Commitment Percentage
(subject to any reallocation pursuant to Section 2.22(b)(iii) hereof) in the Swing Loans made by
Swing Loan Lender hereunder as provided for in Section 2.4(d) hereof and in the Letters of Credit
issued hereunder as provided for in Section 2.14(a) hereof.
“Payment Office” shall mean initially ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇; thereafter, such other office of Agent, if any, which it may designate by notice to
Borrowing Agent and to each Lender to be the Payment Office.
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA or any successor.
“Pension Benefit Plan” shall mean at any time any “employee pension benefit plan” as
defined in Section 3(2) of ERISA (including a Multiple Employer Plan, but not a Multiemployer
Plan) which is covered by Title IV of ERISA or is subject to the minimum funding standards under
Sections 412, 430 or 436 of the Code and either (i) is maintained or to which contributions are
required by Loan Party or any member of the Controlled Group or (ii) has at any time within the
preceding five years been maintained or to which contributions have been required by a Loan Party
or any entity which was at such time a member of the Controlled Group.
“Perfection Certificate” shall mean, collectively, the information questionnaires and the
responses thereto provided by each Loan Party and delivered to Agent.
“Permitted Assignees” shall mean: (a) Agent, any Lender or any of their direct or indirect
Affiliates; (b) a federal or state chartered bank, a United States branch of a foreign bank, an
insurance company, or any finance company generally engaged in the business of making
commercial loans; (c) any fund that is administered or managed by Agent or any Lender, an
Affiliate of Agent or any Lender or a related entity; and (d) any Person to whom Agent or any
Lender assigns its rights and obligations under this Agreement as part of an assignment and transfer
of such Agent’s or Lender’s rights in and to a material portion of such Agent’s or Lender’s
portfolio of asset-based credit facilities.
“Permitted Discretion” means a determination made in good faith and in the exercise (from
the perspective of a secured asset-based lender) of commercially reasonable business judgment.
“Permitted Dividends” shall mean Loan Parties shall be permitted to make quarterly
dividends consisting of (a) Dollars to the holders of Loan Parties’ Equity Interests; and (b) shares
of Equity Interests of the Loan Parties to the holders of Loan Parties’ Equity Interests; provided,
however, that (i) no Event of Default or Default shall have occurred or would occur after giving
pro forma effect to such dividend, (ii) Loan Parties’ are in compliance with the Fixed Charge
Coverage Ratio set forth in Section 6.5 of this Agreement before and after giving pro forma effect
to such dividend; (iii) Loan Parties’ shall have not less than $1,250,000 of Undrawn Availability
before and after giving pro forma effect to such dividend; (iv) dividends shall only be made within
sixty (60) days after receipt of the financial statements required to be delivered pursuant to Section
9.7 and 9.8, as applicable; (v) dividends shall not be made more than four (4) times in any fiscal
24
year; and (v) the aggregate amount of dividends made during the trailing twelve month period plus
the dividend to be made shall not exceed fifty percent (50%) of an amount equal to (x) EBITDA
for the most recently ended trailing twelve month period for which financial statements have been
delivered pursuant to Section 9.9 minus (y) the sum of (A) cash taxes paid during such period; (B)
Unfunded Capital Expenditures made during such period; (C) distributions (including tax
distributions) and dividends made during such period; and (D) all Debt Payments for such period.
“Permitted Encumbrances” shall mean: (a) Liens in favor of Agent for the benefit of Agent
and Lenders, including without limitation, Liens securing Hedge Liabilities and Cash Management
Products and Services; (b) Liens for taxes, assessments or other governmental charges not
delinquent or being Properly Contested; (c) deposits or pledges to secure obligations under
worker’s compensation, social security or similar laws, or under unemployment insurance; (d)
deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and appeal bonds and other obligations of like nature
arising in the Ordinary Course of Business; (e) Liens arising by virtue of the rendition, entry or
issuance against any Loan Party or any Subsidiary, or any property of any Loan Party or any
Subsidiary, of any judgment, writ, order, or decree to the extent the rendition, entry, issuance or
continued existence of such judgment, writ, order or decree (or any event or circumstance relating
thereto) has not resulted in the occurrence of an Event of Default under Section 10.6 hereof; (f)
carriers’, repairmens’, mechanics’, workers’, materialmen’s or other like Liens arising in the
Ordinary Course of Business with respect to obligations which are not due or which are being
Properly Contested; (g) Liens placed upon fixed assets hereafter acquired to secure a portion of
the purchase price thereof, provided that (I) any such lien shall not encumber any other property
of any Loan Party and (II) the aggregate amount of Indebtedness secured by such Liens incurred
as a result of such purchases during any fiscal year shall not exceed the amount permitted in
Section 7.6 hereof; (h) other Liens incidental to the conduct of any Loan Party’s business or the
ownership of its property and assets which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit, and which do not in the aggregate materially detract
from Agent’s or Lenders’ rights in and to the Collateral or the value of any Loan Party’s property
or assets or which do not materially impair the use thereof in the operation of any Loan Party’s
business; and (i) Liens disclosed on Schedule 1.2; provided that such Liens shall secure only those
obligations which they secure on the Closing Date (and extensions, renewals and refinancing of
such obligations permitted by Section 7.8 hereof) and shall not subsequently apply to any other
property or assets of any Loan Party other than the property and assets to which they apply as of
the Closing Date.
“Permitted Indebtedness” shall mean: (a) the Obligations; (b) Indebtedness incurred for
Capital Expenditures permitted in Section 7.6 hereof; (c) any guarantees of Indebtedness permitted
under Section 7.3 hereof; (d) any Indebtedness listed on Schedule 5.8(b)(ii) hereof; (e) Interest
Rate ▇▇▇▇▇▇ and Foreign Currency ▇▇▇▇▇▇ that are entered into by Loan Parties to hedge their
risks with respect to outstanding Indebtedness of Loan Parties and not for speculative or
investment purposes; (f) accounts payable to trade creditors and current operating expenses
incurred in the Ordinary Course of Business and paid on a timely basis; (g) leases permitted in
Section 7.11 hereof; (h) Capitalized Lease Obligations incurred after the Closing Date and secured
only by the equipment being leased pursuant to such Capitalized Lease Obligations; and (i)
obligations secured by Liens disclosed on Schedule 1.2.
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“Permitted Investments” shall mean investments in: (a) obligations issued or guaranteed
by the United States of America or any agency thereof; (b) commercial paper with maturities of
not more than 180 days and a published rating of not less than A-1 or P-1 (or the equivalent rating);
(c) certificates of time deposit and bankers’ acceptances having maturities of not more than 180
days and repurchase agreements backed by United States government securities of a commercial
bank if (i) such bank has a combined capital and surplus of at least $500,000,000, or (ii) its debt
obligations, or those of a holding company of which it is a Subsidiary, are rated not less than A (or
the equivalent rating) by a nationally recognized investment rating agency; (d) U.S. money market
funds that invest solely in obligations issued or guaranteed by the United States of America or an
agency thereof; and (e) Permitted Loans.
“Permitted Loans” shall mean: (a) the extension of trade credit by a Loan Party to its
Customer(s), in the Ordinary Course of Business in connection with a sale of Inventory or rendition
of services, in each case on open account terms; (b) loans to employees in the Ordinary Course of
Business not to exceed as to all such loans the aggregate amount of $100,000 at any time
outstanding; and (c) intercompany loans between and among Loan Parties, so long as, at the
request of Agent, each such intercompany loan is evidenced by a promissory note (including, if
applicable, any master intercompany note executed by Loan Parties) on terms and conditions
(including terms subordinating payment of the indebtedness evidenced by such note to the prior
payment in full of all Obligations) acceptable to Agent in its sole discretion that has been delivered
to Agent either endorsed in blank or together with an undated instrument of transfer executed in
blank by the applicable Loan Party(s) that are the payee(s) on such note.
“Person” shall mean any individual, sole proprietorship, partnership, corporation, business
trust, joint stock company, trust, unincorporated organization, association, limited liability
company, limited liability partnership, institution, public benefit corporation, joint venture, entity
or Governmental Body (whether federal, state, county, city, municipal or otherwise, including any
instrumentality, division, agency, body or department thereof).
“Plan” shall mean any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Benefit Plan and a Multiemployer Plan, as defined herein) maintained by any
Loan Party or any member of the Controlled Group or to which any Loan Party or any member of
the Controlled Group is required to contribute.
“PNC” shall have the meaning set forth in the preamble to this Agreement and shall extend
to all of its successors and assigns.
“Projections” shall have the meaning set forth in Section 5.5(a) hereof.
“Properly Contested” shall mean, in the case of any Indebtedness, Lien or Taxes, as
applicable, of any Person that are not paid as and when due or payable by reason of such Person’s
bona fide dispute concerning its liability to pay the same or concerning the amount thereof: (a)
such Indebtedness, Lien or Taxes, as applicable, are being properly contested in good faith by
appropriate proceedings promptly instituted and diligently conducted; (b) such Person has
established appropriate reserves as shall be required in conformity with GAAP; (c) the non-
payment of such Indebtedness or Taxes will not have a Material Adverse Effect or will not result
in the forfeiture of any assets of such Person in an amount not in excess of $50,000; (d) no Lien is
26
imposed upon any of such Person’s assets with respect to such Indebtedness or taxes unless such
Lien (x) does not attach to any Receivables or Inventory in an amount not to exceed $50,000, (y)
is at all times junior and subordinate in priority to the Liens in favor of the Agent (except only with
respect to property Taxes that have priority as a matter of applicable state law) and, (z) enforcement
of such Lien is stayed during the period prior to the final resolution or disposition of such dispute;
and (e) if such Indebtedness or Lien, as applicable, results from, or is determined by the entry,
rendition or issuance against a Person or any of its assets of a judgment, writ, order or decree,
enforcement of such judgment, writ, order or decree is stayed pending a timely appeal or other
judicial review.
“Protective Advances” shall have the meaning set forth in Section 16.2(f) hereof.
“Published Rate” shall mean the rate of interest published each Business Day in the Wall
Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a
one month period (or, if no such rate is published therein for any reason, then the Published Rate
shall be the LIBOR Rate for a one month period as published in another publication selected by
the Agent).
“Purchasing CLO” shall have the meaning set forth in Section 16.3(d) hereof.
“Purchasing Lender” shall have the meaning set forth in Section 16.3(c) hereof.
“Qualified ECP Loan Party” shall mean each Loan Party that on the Eligibility Date is (a)
a corporation, partnership, proprietorship, organization, trust, or other entity other than a
“commodity pool” as defined in Section 1a(10) of the CEA and CFTC regulations thereunder that
has total assets exceeding $10,000,000 or (b) an Eligible Contract Participant that can cause
another person to qualify as an Eligible Contract Participant on the Eligibility Date under Section
1a(18)(A)(v)(II) of the CEA by entering into or otherwise providing a “letter of credit or keepwell,
support, or other agreement” for purposes of Section 1a(18)(A)(v)(II) of the CEA.
“RCRA” shall mean the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et
seq., as same may be amended from time to time.
“Real Property” shall mean all of the owned and leased premises identified on Schedule
4.4(b)(iv) hereto or in and to any other premises or real property that are hereafter owned or leased
by any Loan Party.
“Receivables” shall mean and include, as to each Loan Party, all of such Loan Party’s
accounts (as defined in Article 9 of the Uniform Commercial Code) and all of such Loan Party’s
contract rights, instruments (including those evidencing indebtedness owed to such Loan Party by
its Affiliates), documents, chattel paper (including electronic chattel paper), general intangibles
relating to accounts, contract rights, instruments, documents and chattel paper, and drafts and
acceptances, credit card receivables and all other forms of obligations owing to such Loan Party
arising out of or in connection with the sale or lease of Inventory or the rendition of services, all
supporting obligations, guarantees and other security therefor, whether secured or unsecured, now
existing or hereafter created, and whether or not specifically sold or assigned to Agent hereunder.
“Receivables Advance Rate” shall have the meaning set forth in Section 2.1(a)(y)(i) hereof.
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“Register” shall have the meaning set forth in Section 16.3(e) hereof.
“Reimbursement Obligation” shall have the meaning set forth in Section 2.14(b) hereof.
“Release” shall have the meaning set forth in Section 5.7(c)(i) hereof.
“Replacement Lender” shall have the meaning set forth in Section 3.11 hereof.
“Reportable Compliance Event” shall mean that any Covered Entity becomes a Sanctioned
Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned,
or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any
Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably
likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism
Law.
“Reportable ERISA Event” shall mean a reportable event described in Section 4043(c) of
ERISA or the regulations promulgated thereunder.
“Required Lenders” shall mean Lenders (not including Swing Loan Lender (in its capacity
as such Swing Loan Lender) or any Defaulting Lender) holding more than fifty percent (50%) of
either (a) the aggregate of (x) the Revolving Commitment Amounts of all Lenders (excluding any
Defaulting Lender) and (y) the outstanding principal amount of the Term Loan, or (b) after the
termination of all commitments of Lenders hereunder, the sum of (x) the outstanding Revolving
Advances, Swing Loans and Term Loans, plus the Maximum Undrawn Amount of all outstanding
Letters of Credit; provided, however, if there are fewer than three (3) Lenders, Required Lenders
shall mean all Lenders (excluding any Defaulting Lender).
“Reserve Percentage” shall mean as of any day the maximum effective percentage in effect
on such day as prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently referred to as
“Eurocurrency Liabilities”.
“Revolving Advances” shall mean Advances other than Letters of Credit, the Term Loan
and the Swing Loans.
“Revolving Commitment” shall mean, as to any Lender, the obligation of such Lender (if
applicable), to make Revolving Advances and participate in Swing Loans and Letters of Credit, in
an aggregate principal and/or face amount not to exceed the Revolving Commitment Amount (if
any) of such Lender.
“Revolving Commitment Amount” shall mean, as to any Lender, the Revolving
Commitment amount (if any) set forth below such Lender’s name on the signature page hereto (or,
in the case of any Lender that became party to this Agreement after the Closing Date pursuant to
Section 16.3(c) or (d) hereof, the Revolving Commitment amount (if any) of such Lender as set
forth in the applicable Commitment Transfer Supplement).
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“Revolving Commitment Percentage” shall mean, as to any Lender, the Revolving
Commitment Percentage (if any) set forth below such Lender’s name on the signature page hereof
(or, in the case of any Lender that became party to this Agreement after the Closing Date pursuant
to Section 16.3(c) or (d) hereof, the Revolving Commitment Percentage (if any) of such Lender as
set forth in the applicable Commitment Transfer Supplement).
“Revolving Credit Note” shall mean the promissory note referred to in Section 2.1(a)
hereof.
“Revolving Interest Rate” shall mean (a) with respect to Revolving Advances that are
Domestic Rate Loans and Swing Loans, an interest rate per annum equal to the sum of the
Applicable Margin plus the Alternate Base Rate and (b) with respect to Revolving Advances that
are LIBOR Rate Loans, the sum of the Applicable Margin plus the LIBOR Rate.
“Sanctioned Country” shall mean a country subject to a sanctions program maintained
under any Anti-Terrorism Law.
“Sanctioned Person” shall mean any individual person, group, regime, entity or thing listed
or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person,
group, regime, entity or thing, or subject to any limitations or prohibitions (including but not
limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.
“SEC” shall mean the Securities and Exchange Commission or any successor thereto.
“Secured Parties” shall mean, collectively, Agent, Issuer, Swing Loan Lender and Lenders,
together with any Affiliates of Agent or any Lender to whom any Hedge Liabilities or Cash
Management Liabilities are owed and with each other holder of any of the Obligations, and the
respective successors and assigns of each of them.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Settlement” shall have the meaning set forth in Section 2.6(d) hereof.
“Settlement Date” shall have the meaning set forth in Section 2.6(d) hereof.
“Subsidiary” shall mean of any Person a corporation or other entity of whose Equity
Interests having ordinary voting power (other than Equity Interests having such power only by
reason of the happening of a contingency) to elect a majority of the directors of such corporation,
or other Persons performing similar functions for such entity, are owned, directly or indirectly, by
such Person.
“Subsidiary Stock” shall mean (a) with respect to the Equity Interests issued to a Loan
Party by any Subsidiary (other than a Foreign Subsidiary), 100% of such issued and outstanding
Equity Interests, and (b) with respect to any Equity Interests issued to a Loan Party by any Foreign
Subsidiary (i) 100% of such issued and outstanding Equity Interests not entitled to vote (within
the meaning of Treas. Reg. Section 1.956(c)(2)) and (ii) 66% (or such greater percentage that, due
to a change in an Applicable Law after the date hereof, (x) could not reasonably be expected to
cause the undistributed earnings of such Foreign Subsidiary as determined for United States
29
federal income tax purposes to be treated as a deemed dividend to such Loan Party and (y) could
not reasonably be expected to cause any material adverse tax consequences) of such issued and
outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)).
“Swap” shall mean any “swap” as defined in Section 1a(47) of the CEA and regulations
thereunder other than (a) a swap entered into on, or subject to the rules of, a board of trade
designated as a contract market under Section 5 of the CEA, or (b) a commodity option entered
into pursuant to CFTC Regulation 32.3(a).
“Swap Obligation” means any obligation to pay or perform under any agreement, contract
or transaction that constitutes a Swap which is also a Lender-Provided Interest Rate Hedge, or a
Lender-Provided Foreign Currency Hedge.
“Swing Loan Lender” shall mean PNC, in its capacity as lender of the Swing Loans.
“Swing Loan Note” shall mean the promissory note described in Section 2.4(b) hereof.
“Swing Loans” shall mean the Advances made pursuant to Section 2.4 hereof.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Body, including
any interest, additions to tax or penalties applicable thereto.
“Term” shall have the meaning set forth in Section 13.1 hereof.
“Term Loan” shall have the meaning set forth in Section 2.3 hereof.
“Term Loan Commitment” shall mean, as to any Lender, the obligation of such Lender (if
applicable), to fund a portion of the Term Loan in an aggregate principal equal to the Term Loan
Commitment Amount (if any) of such Lender.
“Term Loan Commitment Percentage” shall mean, as to any Lender, the Term Loan
Commitment Percentage (if any) set forth below such Lender’s name on the signature page hereof
(or, in the case of any Lender that became party to this Agreement after the Closing Date pursuant
to Section 16.3(c) or (d) hereof, the Term Loan Commitment Percentage (if any) of such Lender
as set forth in the applicable Commitment Transfer Supplement), as the same may be adjusted
upon any assignment by or to such Lender pursuant to Section 16.3(c) or (d) hereof.
“Term Loan Commitment Amount” shall mean, as to any Lender, the term loan
commitment amount (if any) set forth below such Lender’s name on the signature page hereof (or,
in the case of any Lender that became party to this Agreement after the Closing Date pursuant to
Section 16.3(c) or (d) hereof, the term loan commitment amount (if any) of such Lender as set
forth in the applicable Commitment Transfer Supplement), as the same may be adjusted upon any
assignment by or to such Lender pursuant to Section 16.3(c) or (d) hereof.
“Term Loan Rate” shall mean (a) with respect to Term Loans that are Domestic Rate
Loans, an interest rate per annum equal to the sum of the Applicable Margin plus the Alternate
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Base Rate and (b) with respect to Term Loans that are LIBOR Rate Loans, the sum of the
Applicable Margin plus the LIBOR Rate.
“Term Note” shall mean the promissory note described in Section 2.3 hereof.
“Termination Event” shall mean: (a) a Reportable ERISA Event with respect to any Plan;
(b) the withdrawal of any Loan Party or any member of the Controlled Group from a Plan during
a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) the providing of notice of intent to terminate a Plan in a distress termination described
in Section 4041(c) of ERISA; (d) the commencement of proceedings by the PBGC to terminate a
Plan; (e) any event or condition (a) which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Plan, or (b) that may result
in termination of a Multiemployer Plan pursuant to Section 4041A of ERISA; (f) the partial or
complete withdrawal within the meaning of Section 4203 or 4205 of ERISA, of any Loan Party or
any member of the Controlled Group from a Multiemployer Plan; (g) notice that a Multiemployer
Plan is subject to Section 4245 of ERISA; or (h) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent, upon any Loan Party or any
member of the Controlled Group.
“Toxic Substance” shall mean and include any material present on the Real Property
(including the Leasehold Interests) which has been shown to have significant adverse effect on
human health or which is subject to regulation under the Toxic Substances Control Act (TSCA),
15 U.S.C. §§ 2601 et seq., applicable state law, or any other applicable Federal or state laws now
in force or hereafter enacted relating to toxic substances. “Toxic Substance” includes but is not
limited to asbestos, polychlorinated biphenyls (PCBs) and lead-based paints.
“Transactions” shall mean the transactions contemplated under this Agreement.
“Transferee” shall have the meaning set forth in Section 16.3(d) hereof.
“Undrawn Availability” at a particular date shall mean an amount equal to (a) the lesser of
(i) the Formula Amount or (ii) the Maximum Revolving Advance Amount plus (b) an amount not
to exceed $250,000 of unrestricted cash of Loan Parties’ deposited in Blocked Accounts or
Depository Accounts subject to the security interest of Agent in accordance with Section 4.8(h)
and otherwise evidenced by documentation satisfactory to Agent, minus (c) the sum of (i) the
outstanding amount of Advances (including the Maximum Undrawn Amount of all outstanding
Letters of Credit but not including the Term Loan) plus (ii) all amounts due and owing to any Loan
Party’s trade creditors which are outstanding sixty (60) days or more past their due date, plus (iii)
reasonable fees and expenses incurred in connection with the Transactions for which Loan Parties
are liable but which have not been paid or charged to Borrowers’ Account.
“Unfunded Capital Expenditures” shall mean, as to any Loan Party, without duplication, a
Capital Expenditure funded (a) from such Loan Party’s internally generated cash flow or (b) with
the proceeds of a Revolving Advance or Swing Loan.
“Uniform Commercial Code” shall have the meaning set forth in Section 1.3 hereof.
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“USA PATRIOT Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56,
as the same has been, or shall hereafter be, renewed, extended, amended or replaced.
“Walmart” shall mean Wal-Mart Stores, Inc. or any of its Affiliates.
1.3. Uniform Commercial Code Terms. All terms used herein and defined in the
Uniform Commercial Code as adopted in the State of New York from time to time (the “Uniform
Commercial Code”) shall have the meaning given therein unless otherwise defined herein.
Without limiting the foregoing, the terms “accounts”, “chattel paper” (and “electronic chattel
paper” and “tangible chattel paper”), “commercial tort claims”, “deposit accounts”, “documents”,
“equipment”, “financial asset”, “fixtures”, “general intangibles”, “goods”, “instruments”,
“inventory”, “investment property”, “letter-of-credit rights”, “payment intangibles”, “proceeds”,
“promissory note” “securities”, “software” and “supporting obligations” as and when used in the
description of Collateral shall have the meanings given to such terms in Articles 8 or 9 of the
Uniform Commercial Code. To the extent the definition of any category or type of collateral is
expanded by any amendment, modification or revision to the Uniform Commercial Code, such
expanded definition will apply automatically as of the date of such amendment, modification or
revision.
1.4. Certain Matters of Construction. The terms “herein”, “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision. All references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement. Any pronoun used shall be deemed to cover all genders. Wherever appropriate
in the context, terms used herein in the singular also include the plural and vice versa. All
references to statutes and related regulations shall include any amendments of same and any
successor statutes and regulations. Unless otherwise provided, all references to any instruments
or agreements to which Agent is a party, including references to any of the Other Documents, shall
include any and all modifications, supplements or amendments thereto, any and all restatements
or replacements thereof and any and all extensions or renewals thereof. Except as otherwise
expressly provided for herein, all references herein to the time of day shall mean the time in New
York, New York. Unless otherwise provided, all financial calculations shall be performed with
Inventory valued on a first in, first out basis. Whenever the words “including” or “include” shall
be used, such words shall be understood to mean “including, without limitation” or “include,
without limitation”. A Default or an Event of Default shall be deemed to exist at all times during
the period commencing on the date that such Default or Event of Default occurs to the date on
which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the
case of a Default, is cured within any period of cure expressly provided for in this Agreement; and
an Event of Default shall “continue” or be “continuing” until such Event of Default has been
waived in writing by Required Lenders. Any Lien referred to in this Agreement or any of the
Other Documents as having been created in favor of Agent, any agreement entered into by Agent
pursuant to this Agreement or any of the Other Documents, any payment made by or to or funds
received by Agent pursuant to or as contemplated by this Agreement or any of the Other
Documents, or any act taken or omitted to be taken by Agent, shall, unless otherwise expressly
provided, be created, entered into, made or received, or taken or omitted, for the benefit or account
of Agent and Lenders. Wherever the phrase “to the best of Borrower’ knowledge” or “to the best
32
of Loan Parties’ knowledge” or words of similar import relating to the knowledge or the awareness
of any Borrower or any Loan Party are used in this Agreement or Other Documents, such phrase
shall mean and refer to (i) the actual knowledge of a senior officer of any Loan Party or (ii) the
knowledge that a senior officer would have obtained if he/she had engaged in a good faith and
diligent performance of his/her duties, including the making of such reasonably specific inquiries
as may be necessary of the employees or agents of such Borrower or Loan Party and a good faith
attempt to ascertain the existence or accuracy of the matter to which such phrase relates. All
covenants hereunder shall be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that it would be permitted by an exception to, or
otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if
such action is taken or condition exists. In addition, all representations and warranties hereunder
shall be given independent effect so that if a particular representation or warranty proves to be
incorrect or is breached, the fact that another representation or warranty concerning the same or
similar subject matter is correct or is not breached will not affect the incorrectness of a breach of
a representation or warranty hereunder.
II. ADVANCES, PAYMENTS.
2.1. Revolving Advances.
(a) Amount of Revolving Advances. Subject to the terms and conditions set
forth in this Agreement and specifically including Section 2.1(b), each Lender, severally and not
jointly, will make Revolving Advances to Borrowers in aggregate amounts outstanding at any time
equal to such Lender’s Revolving Commitment Percentage of the lesser of (x) the Maximum
Revolving Advance Amount, less the outstanding amount of Swing Loans, less the aggregate
Maximum Undrawn Amount of all outstanding Letters of Credit, and (y) an amount equal to the
sum of:
(i) up to 85% (the “Receivables Advance Rate”) of Eligible
Receivables, plus
(ii) the least of (A) up to 65% of the value of the Eligible Inventory (the
“Inventory Advance Rate”), (B) up to 85% of the appraised net orderly liquidation value of Eligible
Inventory (as evidenced by an Inventory appraisal satisfactory to Agent in its sole discretion
exercised in good faith) (the “Inventory NOLV Advance Rate”, together with the Inventory
Advance Rate and the Receivables Advance Rate, collectively, the “Advance Rates”), and (C)
$2,500,000 in the aggregate at any one time, minus
(iii) the aggregate Maximum Undrawn Amount of all outstanding
Letters of Credit, minus
(iv) subject to the provisions of Section 2.4(a), the outstanding amount
of Swing Loans, if any, minus
(v) the Availability Block, minus
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(vi) amounts payable by Loan Parties to CaseStack which are past-due
and not in dispute (provided Agent is provided with satisfactory documentation of any amounts
that are in dispute), minus
(vii) such reserves as Agent may reasonably deem proper and necessary
from time to time.
The amount derived from the sum of (x) Sections 2.1(a)(y)(i) and (ii) minus (y) Sections
2.1 (a)(y)(iv), (v), (vi) and (vii) at any time and from time to time shall be referred to as the
“Formula Amount”. The Revolving Advances shall be evidenced by one or more secured
promissory notes (collectively, the “Revolving Credit Note”) substantially in the form attached
hereto as Exhibit 2.1(a). Notwithstanding anything to the contrary contained in the foregoing or
otherwise in this Agreement, the outstanding aggregate principal amount of Swing Loans and the
Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of
(i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all
outstanding Letters of Credit or (ii) the Formula Amount less the Maximum Undrawn Amount of
all outstanding Letters of Credit.
(b) Discretionary Rights. The Advance Rates may be increased or decreased
by Agent at any time and from time to time in the exercise of its Permitted Discretion. Each
Borrower consents to any such increases or decreases and acknowledges that decreasing the
Advance Rates or increasing or imposing reserves may limit or restrict Advances requested by
Borrowing Agent. The rights of Agent under this subsection are subject to the provisions of Section
16.2(b).
2.2. Procedures for Requesting Revolving Advances; Procedures for Selection of
Applicable Interest Rates for All Advances.
(a) Borrowing Agent on behalf of any Borrower may notify Agent prior to
10:00 a.m. on a Business Day of a Borrower’s request to incur, on that day, a Revolving Advance
hereunder. Should any amount required to be paid as interest hereunder, or as fees or other charges
under this Agreement or any other agreement with Agent or Lenders, or with respect to any other
Obligation under this Agreement, become due, same shall be deemed a request for a Revolving
Advance maintained as a Domestic Rate Loan as of the date such payment is due, in the amount
required to pay in full such interest, fee, charge or Obligation, and such request shall be irrevocable.
(b) Notwithstanding the provisions of subsection (a) above, in the event any
Borrower desires to obtain a LIBOR Rate Loan for any Advance (other than a Swing Loan),
Borrowing Agent shall give Agent written notice by no later than 10:00 a.m. on the day which is
three (3) Business Days prior to the date such LIBOR Rate Loan is to be borrowed, specifying (i)
the date of the proposed borrowing (which shall be a Business Day), (ii) the type of borrowing and
the amount of such Advance to be borrowed, which amount shall be in a minimum amount of
$250,000 and in integral multiples of $100,000 thereafter, and (iii) the duration of the first Interest
Period therefor. Interest Periods for LIBOR Rate Loans shall be for one, two or three months;
provided that, if an Interest Period would end on a day that is not a Business Day, it shall end on
the next succeeding Business Day unless such day falls in the next succeeding calendar month in
which case the Interest Period shall end on the next preceding Business Day. No LIBOR Rate
34
Loan shall be made available to any Borrower during the continuance of a Default or an Event of
Default. After giving effect to each requested LIBOR Rate Loan, including those which are
converted from a Domestic Rate Loan under Section 2.2(e), there shall not be outstanding more
than four (4) LIBOR Rate Loans, in the aggregate.
(c) Each Interest Period of a LIBOR Rate Loan shall commence on the date
such LIBOR Rate Loan is made and shall end on such date as Borrowing Agent may elect as set
forth in subsection (b)(iii) above, provided that the exact length of each Interest Period shall be
determined in accordance with the practice of the interbank market for offshore Dollar deposits
and no Interest Period shall end after the last day of the Term.
(d) Borrowing Agent shall elect the initial Interest Period applicable to a
LIBOR Rate Loan by its notice of borrowing given to Agent pursuant to Section 2.2(b) or by its
notice of conversion given to Agent pursuant to Section 2.2(e), as the case may be. Borrowing
Agent shall elect the duration of each succeeding Interest Period by giving irrevocable written
notice to Agent of such duration not later than 10:00 a.m. on the day which is three (3) Business
Days prior to the last day of the then current Interest Period applicable to such LIBOR Rate Loan.
If Agent does not receive timely notice of the Interest Period elected by Borrowing Agent,
Borrowing Agent shall be deemed to have elected to convert such LIBOR Rate Loan to a Domestic
Rate Loan subject to Section 2.2(e) below.
(e) Provided that no Default or Event of Default shall have occurred and be
continuing, Borrowing Agent may, on the last Business Day of the then current Interest Period
applicable to any outstanding LIBOR Rate Loan, or on any Business Day with respect to Domestic
Rate Loans, convert any such loan into a loan of another type in the same aggregate principal
amount provided that any conversion of a LIBOR Rate Loan shall be made only on the last
Business Day of the then current Interest Period applicable to such LIBOR Rate Loan. If
Borrowing Agent desires to convert a loan, Borrowing Agent shall give Agent written notice by
no later than 10:00 a.m. (i) on the day which is three (3) Business Days prior to the date on which
such conversion is to occur with respect to a conversion from a Domestic Rate Loan to a LIBOR
Rate Loan, or (ii) on the day which is one (1) Business Day prior to the date on which such
conversion is to occur (which date shall be the last Business Day of the Interest Period for the
applicable LIBOR Rate Loan) with respect to a conversion from a LIBOR Rate Loan to a Domestic
Rate Loan, specifying, in each case, the date of such conversion, the loans to be converted and if
the conversion is to a LIBOR Rate Loan, the duration of the first Interest Period therefor.
(f) At its option and upon written notice given prior to 10:00 a.m. at least three
(3) Business Days prior to the date of such prepayment, any Borrower may, subject to Section
2.2(g) hereof, prepay the LIBOR Rate Loans in whole at any time or in part from time to time with
accrued interest on the principal being prepaid to the date of such repayment. Such Borrower shall
specify the date of prepayment of Advances which are LIBOR Rate Loans and the amount of such
prepayment. In the event that any prepayment of a LIBOR Rate Loan is required or permitted on
a date other than the last Business Day of the then current Interest Period with respect thereto, such
Borrower shall indemnify Agent and Lenders therefor in accordance with Section 2.2(g) hereof.
(g) Each Loan Party shall indemnify Agent and Lenders and hold Agent and
Lenders harmless from and against any and all documented losses or expenses that Agent and
35
Lenders may sustain or incur as a consequence of any prepayment, conversion of or any default
by any Borrower in the payment of the principal of or interest on any LIBOR Rate Loan or failure
by any Borrower to complete a borrowing of, a prepayment of or conversion of or to a LIBOR
Rate Loan after notice thereof has been given, including, but not limited to, any interest payable
by Agent or Lenders to lenders of funds obtained by it in order to make or maintain its LIBOR
Rate Loans hereunder. A certificate as to any additional amounts payable pursuant to the foregoing
sentence submitted by Agent or any Lender to Borrowing Agent shall be conclusive absent
manifest error.
(h) Notwithstanding any other provision hereof, if any Applicable Law, treaty,
regulation or directive, or any change therein or in the interpretation or application thereof,
including without limitation any Change in Law, shall make it unlawful for Lenders or any Lender
(for purposes of this subsection (h), the term “Lender” shall include any Lender and the office or
branch where any Lender or any Person controlling such Lender makes or maintains any LIBOR
Rate Loans) to make or maintain its LIBOR Rate Loans, the obligation of Lenders (or such affected
Lender) to make LIBOR Rate Loans hereunder shall forthwith be cancelled and Borrowers shall,
if any affected LIBOR Rate Loans are then outstanding, promptly upon request from Agent, either
pay all such affected LIBOR Rate Loans or convert such affected LIBOR Rate Loans into loans
of another type. If any such payment or conversion of any LIBOR Rate Loan is made on a day
that is not the last day of the Interest Period applicable to such LIBOR Rate Loan, Borrowers shall
pay Agent, upon Agent’s request, such amount or amounts set forth in clause (g) above. A
certificate as to any additional amounts payable pursuant to the foregoing sentence submitted by
Lenders to Borrowing Agent shall be conclusive absent manifest error.
2.3. Term Loans. Subject to the terms and conditions of this Agreement, each Lender,
severally and not jointly, will make a term loan to Borrowers in the amount equal to such Lender’s
Term Loan Commitment Percentage of $1,500,000 (the “Term Loan”). The Term Loan shall be
advanced on the Closing Date and shall be, with respect to principal, payable as follows, subject
to acceleration upon the occurrence of an Event of Default under this Agreement or termination of
this Agreement: consecutive monthly installments each in the amount of $31,250 commencing
March 1, 2018, and continuing on the first day of each month thereafter followed by a payment of
all unpaid principal, accrued and unpaid interest and all unpaid fees and expenses on the last day
of the Term. The Term Loan shall be evidenced by one or more secured promissory notes
(collectively, the “Term Note”) in substantially the form attached hereto as Exhibit 2.3. The Term
Loan may consist of Domestic Rate Loans or LIBOR Rate Loans, or a combination thereof, as
Borrowing Agent may request; and in the event that Borrowers desire to obtain or extend any
portion of the Term Loan as a LIBOR Rate Loan or to convert any portion of the Term Loan from
a Domestic Rate Loan to a LIBOR Rate Loan, Borrowing Agent shall comply with the notification
requirements set forth in Sections 2.2(b) and/or (e) and the provisions of Sections 2.2(b) through
(h) shall apply.
2.4. Swing Loans.
(a) Notwithstanding this Section 2.4 or anything to the contrary in this
Agreement, unless otherwise agreed to in writing by the Loan Parties and the Lenders, (i) there
shall be no Swing Loans and no fees or interest payable in connection therewith and (ii) all
references in this Agreement to Swing Loans and all defined terms relating to Swing Loans,
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including but not limited to Swing Loan, Swing Loan Lender, Swing Loan Note and Maximum
Swing Loan Advance Amount, shall be disregarded and have no effect.
(b) Subject to the terms and conditions set forth in this Agreement, and in order
to minimize the transfer of funds between Lenders and Agent for administrative convenience,
Agent, Lenders holding Revolving Commitments and Swing Loan Lender agree that in order to
facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option
made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan
advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time
or from time to time after the date hereof to, but not including, the expiration of the Term, in an
aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount,
provided that the outstanding aggregate principal amount of Swing Loans and the Revolving
Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the
Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding
Letters of Credit or (ii) the Formula Amount less the Maximum Undrawn Amount of all
outstanding Letters of Credit. All Swing Loans shall be Domestic Rate Loans only. Borrowers
may borrow (at the option and election of Swing Loan Lender), repay and reborrow (at the option
and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans
as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall
be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form
attached hereto as Exhibit 2.4(a). Swing Loan Lender’s agreement to make Swing Loans under
this Agreement is cancelable at any time for any reason whatsoever and the making of Swing
Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish
any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make
Swing Loans in the future
(c) Upon either (i) any request by Borrowing Agent for a Revolving Advance
made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers
for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof,
Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated
as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan;
provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender
may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by
Required Lenders that one or more of the applicable conditions set forth in Section 8.2 of this
Agreement have not been satisfied or the Revolving Commitments have been terminated for any
reason.
(d) Upon the making of a Swing Loan (whether before or after the occurrence
of a Default or an Event of Default and regardless of whether a Settlement has been requested with
respect to such Swing Loan), each Lender holding a Revolving Commitment shall be deemed,
without further action by any party hereto, to have unconditionally and irrevocably purchased from
Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such
Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent
may, at any time, require the Lenders holding Revolving Commitments to fund such participations
by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any,
on which any Lender holding a Revolving Commitment is required to fund, and funds, its
participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such
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Lender its Revolving Commitment Percentage of all payments of principal and interest and all
proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender
holding a Revolving Commitment shall be obligated in any event to make Revolving Advances in
an amount in excess of its Revolving Commitment Amount minus its Participation Commitment
(taking into account any reallocations under Section 2.22) of the Maximum Undrawn Amount of
all outstanding Letters of Credit.
2.5. Disbursement of Advance Proceeds. All Advances shall be disbursed from
whichever office or other place Agent may designate from time to time and, together with any and
all other Obligations of Loan Parties to Agent or Lenders, shall be charged to Borrowers’ Account
on Agent’s books. The proceeds of each Revolving Advance or Swing Loan requested by
Borrowing Agent on behalf of any Borrower or deemed to have been requested by any Borrower
under Sections 2.2(a), 2.6(b) or 2.14 hereof shall, (i) with respect to requested Revolving
Advances, to the extent Lenders make such Revolving Advances in accordance with Section
2.2(a), 2.6(b) or 2.14 hereof, and with respect to Swing Loans made upon any request by
Borrowing Agent for a Revolving Advance to the extent Swing Loan Lender makes such Swing
Loan in accordance with Section 2.4(c) hereof, be made available to the applicable Borrower on
the day so requested by way of credit to such Borrower’s operating account at PNC, or such other
bank as Borrowing Agent may designate following notification to Agent, in immediately available
federal funds or other immediately available funds or, (ii) with respect to Revolving Advances
deemed to have been requested by any Borrower or Swing Loans made upon any deemed request
for a Revolving Advance by any Borrower, be disbursed to Agent to be applied to the outstanding
Obligations giving rise to such deemed request. During the Term, Borrowers may use the
Revolving Advances and Swing Loans by borrowing, prepaying and reborrowing, all in
accordance with the terms and conditions hereof.
2.6. Making and Settlement of Advances.
(a) Each borrowing of Revolving Advances shall be advanced according to the
applicable Revolving Commitment Percentages of Lenders holding the Revolving Commitments
(subject to any contrary terms of Section 2.22). The Term Loan shall be advanced according to
the applicable Term Loan Commitment Percentages of Lenders holding the Term Loan
Commitments. Each borrowing of Swing Loans shall be advanced by Swing Loan Lender alone.
(b) Promptly after receipt by Agent of a request or a deemed request for a
Revolving Advance pursuant to Section 2.2(a), to the extent Agent elects not to provide a Swing
Loan or the making of a Swing Loan would result in the aggregate amount of all outstanding Swing
Loans exceeding the maximum amount permitted in Section 2.4(b), Agent shall notify Lenders
holding the Revolving Commitments of its receipt of such request specifying the information
provided by Borrowing Agent and the apportionment among Lenders of the requested Revolving
Advance as determined by Agent in accordance with the terms hereof. Each Lender shall remit
the principal amount of each Revolving Advance to Agent such that Agent is able to, and Agent
shall, to the extent the applicable Lenders have made funds available to it for such purpose and
subject to Section 8.2 fund such Revolving Advance to Borrowers in Dollars and immediately
available funds at the Payment Office prior to the close of business, on the applicable borrowing
date; provided that if any applicable Lender fails to remit such funds to Agent in a timely manner,
Agent may elect in its sole discretion to fund with its own funds the Revolving Advance of such
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Lender on such borrowing date, and such Lender shall be subject to the repayment obligation in
Section 2.6(c) hereof.
(c) Unless Agent shall have been notified by telephone, confirmed in writing,
by any Lender holding a Revolving Commitment that such Lender will not make the amount which
would constitute its applicable Revolving Commitment Percentage of the requested Revolving
Advance available to Agent, Agent may (but shall not be obligated to) assume that such Lender
has made such amount available to Agent on such date in accordance with Section 2.6(b) and may,
in reliance upon such assumption, make available to Borrowers a corresponding amount. In such
event, if a Lender has not in fact made its applicable Revolving Commitment Percentage of the
requested Revolving Advance available to Agent, then the applicable Lender and Borrowers
severally agree to pay to Agent on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to Borrowers through but
excluding the date of payment to Agent, at (i) in the case of a payment to be made by such Lender,
the greater of (A) (x) the daily average Federal Funds Effective Rate (computed on the basis of a
year of 360 days) during such period as quoted by Agent, times (y) such amount or (B) a rate
determined by Agent in accordance with banking industry rules on interbank compensation, and
(ii) in the case of a payment to be made by Borrowers, the Revolving Interest Rate for Revolving
Advances that are Domestic Rate Loans. If such Lender pays its share of the applicable Revolving
Advance to Agent, then the amount so paid shall constitute such Lender’s Revolving Advance.
Any payment by Borrowers shall be without prejudice to any claim Borrowers may have against
a Lender holding a Revolving Commitment that shall have failed to make such payment to Agent.
A certificate of Agent submitted to any Lender or Borrowers with respect to any amounts owing
under this paragraph (c) shall be conclusive, in the absence of manifest error.
(d) Agent, on behalf of Swing Loan Lender, shall demand settlement (a
“Settlement”) of all or any Swing Loans with Lenders holding the Revolving Commitments on at
least a weekly basis, or on any more frequent date that Agent elects or that Swing Loan Lender at
its option exercisable for any reason whatsoever may request, by notifying Lenders holding the
Revolving Commitments of such requested Settlement by facsimile, telephonic or electronic
transmission no later than 3:00 p.m. on the date of such requested Settlement (the “Settlement
Date”). Subject to any contrary provisions of Section 2.22, each Lender holding a Revolving
Commitment shall transfer the amount of such Lender’s Revolving Commitment Percentage of
the outstanding principal amount (plus interest accrued thereon to the extent requested by Agent)
of the applicable Swing Loan with respect to which Settlement is requested by Agent, to such
account of Agent as Agent may designate not later than 5:00 p.m. on such Settlement Date if
requested by Agent by 3:00 p.m., otherwise not later than 5:00 p.m. on the next Business Day.
Settlements may occur at any time notwithstanding that the conditions precedent to making
Revolving Advances set forth in Section 8.2 have not been satisfied or the Revolving
Commitments shall have otherwise been terminated at such time. All amounts so transferred to
Agent shall be applied against the amount of outstanding Swing Loans and, when so applied shall
constitute Revolving Advances of such Lenders accruing interest as Domestic Rate Loans. If any
such amount is not transferred to Agent by any Lender holding a Revolving Commitment on such
Settlement Date, Agent shall be entitled to recover such amount on demand from such Lender
together with interest thereon as specified in Section 2.6(c).
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(e) If any Lender or Participant (a “Benefited Lender”) shall at any time receive
any payment of all or part of its Advances, or interest thereon, or receive any Collateral in respect
thereof (whether voluntarily or involuntarily or by set-off) in a greater proportion than any such
payment to and Collateral received by any other Lender, if any, in respect of such other Lender’s
Advances, or interest thereon, and such greater proportionate payment or receipt of Collateral is
not expressly permitted hereunder, such Benefited Lender shall purchase for cash from the other
Lenders a participation in such portion of each such other Lender’s Advances, or shall provide
such other Lender with the benefits of any such Collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits of such
Collateral or proceeds ratably with each of the other Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest. Each Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under Applicable Law, that each Lender so purchasing a portion of
another Lender’s Advances may exercise all rights of payment (including rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of such portion, and the
obligations owing to each such purchasing Lender in respect of such participation and such
purchased portion of any other Lender’s Advances shall be part of the Obligations secured by the
Collateral, and the obligations owing to each such purchasing Lender in respect of such
participation and such purchased portion of any other Lender’s Advances shall be part of the
Obligations secured by the Collateral.
2.7. Maximum Advances. The aggregate balance of Revolving Advances plus Swing
Loans outstanding at any time shall not exceed the lesser of (a) the Maximum Revolving Advance
Amount less the aggregate Maximum Undrawn Amount of all issued and outstanding Letters of
Credit or (b) the Formula Amount less the aggregate Maximum Undrawn Amount of all issued
and outstanding Letters of Credit.
2.8. Manner and Repayment of Advances.
(a) The Revolving Advances and Swing Loans shall be due and payable in full
on the last day of the Term subject to earlier prepayment as herein provided. The Term Loan shall
be due and payable as provided in Section 2.3 hereof and shall be due and payable in full on the
last day of the Term, subject to mandatory prepayments as herein provided. Notwithstanding the
foregoing, all Advances shall be subject to earlier repayment upon (x) acceleration upon the
occurrence of an Event of Default under this Agreement or (y) termination of this Agreement.
Each payment (including each prepayment) by any Borrower on account of the principal of and
interest on the Advances (other than the Term Loan) shall be applied, first to the outstanding Swing
Loans and next, pro rata according to the applicable Revolving Commitment Percentages of
Lenders, to the outstanding Revolving Advances (subject to any contrary provisions of Section
2.22). Each payment (including each prepayment) by any Borrower on account of the principal of
and interest on the Term Loan shall be applied to the Term Loan pro rata according to the Term
Loan Commitment Percentages of Lenders in the inverse order of maturities thereof.
(b) Each Borrower recognizes that the amounts evidenced by checks, notes,
drafts or any other items of payment relating to and/or proceeds of Collateral may not be collectible
by Agent on the date received by Agent. Agent shall conditionally credit Borrowers’ Account for
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each item of payment on the next Business Day after the Business Day on which such item of
payment is received by Agent (and the Business Day on which each such item of payment is so
credited shall be referred to, with respect to such item, as the “Application Date”) Agent is not,
however, required to credit Borrowers’ Account for the amount of any item of payment which is
unsatisfactory to Agent and Agent may charge Borrowers’ Account for the amount of any item of
payment which is returned, for any reason whatsoever, to Agent unpaid. Subject to the foregoing,
Borrowers agree that for purposes of computing the interest charges under this Agreement, each
item of payment received by Agent shall be deemed applied by Agent on account of the
Obligations on its respective Application Date. Loan Parties further agree that there is a monthly
float charge payable to Agent for Agent’s sole benefit, in an amount equal to (y) the face amount
of all items of payment received during the prior month (including items of payment received by
Agent as a wire transfer or electronic depository check) multiplied by (z) the Revolving Interest
Rate with respect to Domestic Rate Loans for one (1) Business Day. All proceeds received by
Agent shall be applied to the Obligations in accordance with Section 4.8(h).
(c) All payments of principal, interest and other amounts payable hereunder, or
under any of the Other Documents shall be made to Agent at the Payment Office not later than
1:00 p.m. on the due date therefor in Dollars in federal funds or other funds immediately available
to Agent. Agent shall have the right to effectuate payment of any and all Obligations due and
owing hereunder by charging Borrowers’ Account or by making Advances as provided in Section
2.2 hereof.
(d) Except as expressly provided herein, all payments (including prepayments)
to be made by any Borrower on account of principal, interest, fees and other amounts payable
hereunder shall be made without deduction, setoff or counterclaim and shall be made to Agent on
behalf of Lenders to the Payment Office, in each case on or prior to 1:00 p.m., in Dollars and in
immediately available funds.
2.9. Repayment of Excess Advances. If at any time the aggregate balance of
outstanding Revolving Advances, Swing Loans, Term Loans and/or Advances taken as a whole
exceeds the maximum amount of such type of Advances and/or Advances taken as a whole (as
applicable) permitted hereunder, such excess Advances shall be due and payable at the Payment
Office within one (1) Business Day of demand, whether or not a Default or an Event of Default
has occurred.
2.10. Statement of Account. Agent shall maintain, in accordance with its customary
procedures, a loan account (“Borrowers’ Account”) in the name of Borrowers in which shall be
recorded the date and amount of each Advance made by Agent or Lenders and the date and amount
of each payment in respect thereof; provided, however, the failure by Agent to record the date and
amount of any Advance shall not adversely affect Agent or any Lender. Each month, Agent shall
send to Borrowing Agent a statement showing the accounting for the Advances made, payments
made or credited in respect thereof, and other transactions between Agent, Lenders and Borrowers
during such month. The monthly statements shall be deemed correct and binding upon Borrowers
in the absence of manifest error and shall constitute an account stated between Lenders and
Borrowers unless Agent receives a written statement of Borrowers’ specific exceptions thereto
within thirty (30) days after such statement is received by Borrowing Agent. The records of Agent
41
with respect to Borrowers’ Account shall be conclusive evidence absent manifest error of the
amounts of Advances and other charges thereto and of payments applicable thereto.
2.11. Letters of Credit.
(a) Subject to the terms and conditions hereof, Issuer shall issue or cause the
issuance of standby and/or trade letters of credit denominated in Dollars (“Letters of Credit”) for
the account of any Borrower except to the extent that the issuance thereof would then cause the
sum of (i) the outstanding Revolving Advances plus (ii) the outstanding Swing Loans, plus (iii)
the Maximum Undrawn Amount of all outstanding Letters of Credit, plus (iv) the Maximum
Undrawn Amount of the Letter of Credit to be issued to exceed the lesser of (x) the Maximum
Revolving Advance Amount or (y) the Formula Amount. The Maximum Undrawn Amount of all
outstanding Letters of Credit shall not exceed in the aggregate at any time the Letter of Credit
Sublimit. All disbursements or payments related to Letters of Credit shall be deemed to be
Domestic Rate Loans consisting of Revolving Advances and shall bear interest at the Revolving
Interest Rate for Domestic Rate Loans. Letters of Credit that have not been drawn upon shall not
bear interest (but fees shall accrue in respect of outstanding Letters of Credit as provided in Section
3.2 hereof).
(b) Notwithstanding any provision of this Agreement, Issuer shall not be under
any obligation to issue any Letter of Credit if (i) any order, judgment or decree of any
Governmental Body or arbitrator shall by its terms purport to enjoin or restrain Issuer from issuing
any Letter of Credit, or any Law applicable to Issuer or any request or directive (whether or not
having the force of law) from any Governmental Body with jurisdiction over Issuer shall prohibit,
or request that Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit
in particular or shall impose upon Issuer with respect to the Letter of Credit any restriction, reserve
or capital requirement (for which Issuer is not otherwise compensated hereunder) not in effect on
the date of this Agreement, or shall impose upon Issuer any unreimbursed loss, cost or expense
which was not applicable on the date of this Agreement, and which Issuer in good ▇▇▇▇▇ ▇▇▇▇▇
material to it, or (ii) the issuance of the Letter of Credit would violate one or more policies of
Issuer applicable to letters of credit generally.
2.12. Issuance of Letters of Credit.
(a) Borrowing Agent, on behalf of any Borrower, may request Issuer to issue
or cause the issuance of a Letter of Credit by delivering to Issuer, with a copy to Agent at the
Payment Office, prior to 10:00 a.m., at least five (5) Business Days prior to the proposed date of
issuance, such Issuer’s form of Letter of Credit Application (the “Letter of Credit Application”)
completed to the satisfaction of Agent and Issuer; and, such other certificates, documents and other
papers and information as Agent or Issuer may reasonably request. Issuer shall not issue any
requested Letter of Credit if such Issuer has received notice from Agent or any Lender that one or
more of the applicable conditions set forth in Section 8.2 of this Agreement have not been satisfied
or the commitments of Lenders to make Revolving Advances hereunder have been terminated for
any reason.
(b) Each Letter of Credit shall, among other things, (i) provide for the payment
of sight drafts, or other written demands for payment, or acceptances of usance drafts when
42
presented for honor thereunder in accordance with the terms thereof and when accompanied by
the documents described therein and (ii) have an expiry date not later than twelve (12) months
after such Letter of Credit’s date of issuance and in no event later than the last day of the Term.
Each standby Letter of Credit shall be subject either to the Uniform Customs and Practice for
Documentary Credits as most recently published by the International Chamber of Commerce at
the time a Letter of Credit is issued (the “UCP”) or the International Standby Practices
(International Chamber of Commerce Publication Number 590) (the “ISP98 Rules”), or any
subsequent revision thereof at the time a standby Letter of Credit is issued, as determined by Issuer,
and each trade Letter of Credit shall be subject to the UCP. In addition, no trade Letter of Credit
may permit the presentation of an ocean ▇▇▇▇ of lading that includes a condition that the original
▇▇▇▇ of lading is not required to claim the goods shipped thereunder.
(c) Agent shall use its reasonable efforts to notify Lenders of the request by
Borrowing Agent for a Letter of Credit hereunder.
2.13. Requirements For Issuance of Letters of Credit.
(a) Borrowing Agent shall authorize and direct any Issuer to name the
applicable Borrower as the “Applicant” or “Account Party” of each Letter of Credit. If Agent is
not the Issuer of any Letter of Credit, Borrowing Agent shall authorize and direct Issuer to deliver
to Agent all instruments, documents, and other writings and property received by Issuer pursuant
to the Letter of Credit and to accept and rely upon Agent’s instructions and agreements with respect
to all matters arising in connection with the Letter of Credit, the application therefor.
(b) In connection with all trade Letters of Credit issued or caused to be issued
by Issuer under this Agreement, each Borrower hereby appoints Issuer, or its designee, as its
attorney, with full power and authority if an Event of Default shall have occurred: (i) to sign and/or
endorse such Borrower’s name upon any warehouse or other receipts, and acceptances; (ii) to sign
such Borrower’s name on bills of lading; (iii) to clear Inventory through the United States of
America Customs Department (“Customs”) in the name of such Borrower or Issuer or Issuer’s
designee, and to sign and deliver to Customs officials powers of attorney in the name of such
Borrower for such purpose; and (iv) to complete in such Borrower’s name or Issuer’s, or in the
name of Issuer’s designee, any order, sale or transaction, obtain the necessary documents in
connection therewith, and collect the proceeds thereof. Neither Agent, Issuer nor their attorneys
will be liable for any acts or omissions nor for any error of judgment or mistakes of fact or law,
except for Agent’s, Issuer’s or their respective attorney’s willful misconduct. This power, being
coupled with an interest, is irrevocable as long as any Letters of Credit remain outstanding.
2.14. Disbursements, Reimbursement.
(a) Immediately upon the issuance of each Letter of Credit, each Lender
holding a Revolving Commitment shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from Issuer a participation in each Letter of Credit and each drawing thereunder
in an amount equal to such Lender’s Revolving Commitment Percentage of the Maximum
Undrawn Amount of such Letter of Credit (as in effect from time to time) and the amount of such
drawing, respectively.
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(b) In the event of any request for a drawing under a Letter of Credit by the
beneficiary or transferee thereof, Issuer will promptly notify Agent and Borrowing Agent.
Regardless of whether Borrowing Agent shall have received such notice, Borrowers shall
reimburse (such obligation to reimburse Issuer shall sometimes be referred to as a “Reimbursement
Obligation”) Issuer prior to 12:00 Noon, on each date that an amount is paid by Issuer under any
Letter of Credit (each such date, a “Drawing Date”) in an amount equal to the amount so paid by
Issuer. In the event Borrowers fail to reimburse Issuer for the full amount of any drawing under
any Letter of Credit by 12:00 Noon, on the Drawing Date, Issuer will promptly notify Agent and
each Lender holding a Revolving Commitment thereof, and Borrowers shall be automatically
deemed to have requested that a Revolving Advance maintained as a Domestic Rate Loan be made
by Lenders to be disbursed on the Drawing Date under such Letter of Credit, and Lenders holding
the Revolving Commitments shall be unconditionally obligated to fund such Revolving Advance
(all whether or not the conditions specified in Section 8.2 are then satisfied or the commitments of
Lenders to make Revolving Advances hereunder have been terminated for any reason) as provided
for in Section 2.14(c) immediately below. Any notice given by Issuer pursuant to this Section
2.14(b) may be oral if promptly confirmed in writing; provided that the lack of such a confirmation
shall not affect the conclusiveness or binding effect of such notice.
(c) Each Lender holding a Revolving Commitment shall upon any notice
pursuant to Section 2.14(b) make available to Issuer through Agent at the Payment Office an
amount in immediately available funds equal to its Revolving Commitment Percentage (subject to
any contrary provisions of Section 2.22) of the amount of the drawing, whereupon the participating
Lenders shall (subject to Section 2.14(d)) each be deemed to have made a Revolving Advance
maintained as a Domestic Rate Loan to Borrowers in that amount. If any Lender holding a
Revolving Commitment so notified fails to make available to Agent, for the benefit of Issuer, the
amount of such Lender’s Revolving Commitment Percentage of such amount by 2:00 p.m. on the
Drawing Date, then interest shall accrue on such Lender’s obligation to make such payment, from
the Drawing Date to the date on which such Lender makes such payment (i) at a rate per annum
equal to the Federal Funds Effective Rate during the first three (3) days following the Drawing
Date and (ii) at a rate per annum equal to the rate applicable to Revolving Advances maintained
as a Domestic Rate Loan on and after the fourth day following the Drawing Date. Agent and Issuer
will promptly give notice of the occurrence of the Drawing Date, but failure of Agent or Issuer to
give any such notice on the Drawing Date or in sufficient time to enable any Lender holding a
Revolving Commitment to effect such payment on such date shall not relieve such Lender from
its obligations under this Section 2.14(c), provided that such Lender shall not be obligated to pay
interest as provided in Section 2.14(c)(i) and (ii) until and commencing from the date of receipt of
notice from Agent or Issuer of a drawing.
(d) With respect to any unreimbursed drawing that is not converted into a
Revolving Advance maintained as a Domestic Rate Loan to Borrowers in whole or in part as
contemplated by Section 2.14(b), because of Borrowers’ failure to satisfy the conditions set forth
in Section 8.2 hereof (other than any notice requirements) or for any other reason, Borrowers shall
be deemed to have incurred from Agent a borrowing (each a “Letter of Credit Borrowing”) in the
amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the rate per annum applicable to a Revolving
Advance maintained as a Domestic Rate Loan. Each applicable Lender’s payment to Agent
pursuant to Section 2.14(c) shall be deemed to be a payment in respect of its participation in such
44
Letter of Credit Borrowing and shall constitute a “Participation Advance” from such Lender in
satisfaction of its Participation Commitment in respect of the applicable Letter of Credit under this
Section 2.14.
(e) Each applicable Lender’s Participation Commitment in respect of the
Letters of Credit shall continue until the last to occur of any of the following events: (x) Issuer
ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (y) no Letter of
Credit issued or created hereunder remains outstanding and uncancelled; and (z) all Persons (other
than Borrowers) have been fully reimbursed for all payments made under or relating to Letters of
Credit.
2.15. Repayment of Participation Advances.
(a) Upon (and only upon) receipt by Agent for the account of Issuer of
immediately available funds from Borrowers (i) in reimbursement of any payment made by Issuer
or Agent under the Letter of Credit with respect to which any Lender has made a Participation
Advance to Agent, or (ii) in payment of interest on such a payment made by Issuer or Agent under
such a Letter of Credit, Agent will pay to each Lender holding a Revolving Commitment, in the
same funds as those received by Agent, the amount of such Lender’s Revolving Commitment
Percentage of such funds, except Agent shall retain the amount of the Revolving Commitment
Percentage of such funds of any Lender holding a Revolving Commitment that did not make a
Participation Advance in respect of such payment by Agent (and, to the extent that any of the other
Lender(s) holding the Revolving Commitment have funded any portion such Defaulting Lender’s
Participation Advance in accordance with the provisions of Section 2.22, Agent will pay over to
such Non-Defaulting Lenders a pro rata portion of the funds so withheld from such Defaulting
Lender).
(b) If Issuer or Agent is required at any time to return to any Borrower, or to a
trustee, receiver, liquidator, custodian, or any official in any insolvency proceeding, any portion
of the payments made by Borrowers to Issuer or Agent pursuant to Section 2.15(a) in
reimbursement of a payment made under the Letter of Credit or interest or fee thereon, each
applicable Lender shall, on demand of Agent, forthwith return to Issuer or Agent the amount of its
Revolving Commitment Percentage of any amounts so returned by Issuer or Agent plus interest at
the Federal Funds Effective Rate.
2.16. Documentation. Each Borrower agrees to be bound by the terms of the Letter of
Credit Application and by Issuer’s interpretations of any Letter of Credit issued on behalf of such
Borrower and by Issuer’s written regulations and customary practices relating to letters of credit,
though Issuer’s interpretations may be different from such Borrower’s own. In the event of a
conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern.
It is understood and agreed that, except in the case of gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final non-appealable judgment), Issuer shall
not be liable for any error, negligence and/or mistakes, whether of omission or commission, in
following Borrowing Agent’s or any Borrower’s instructions or those contained in the Letters of
Credit or any modifications, amendments or supplements thereto.
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2.17. Determination to Honor Drawing Request. In determining whether to honor any
request for drawing under any Letter of Credit by the beneficiary thereof, Issuer shall be
responsible only to determine that the documents and certificates required to be delivered under
such Letter of Credit have been delivered and that they comply on their face with the requirements
of such Letter of Credit and that any other drawing condition appearing on the face of such Letter
of Credit has been satisfied in the manner so set forth.
2.18. Nature of Participation and Reimbursement Obligations. The obligation of each
Lender holding a Revolving Commitment in accordance with this Agreement to make the
Revolving Advances or Participation Advances as a result of a drawing under a Letter of Credit,
and the obligations of Borrowers to reimburse Issuer upon a draw under a Letter of Credit, shall
be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Section 2.18 under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other right which
such Lender or any Borrower, as the case may be, may have against Issuer, Agent, any Borrower
or Lender, as the case may be, or any other Person for any reason whatsoever;
(ii) the failure of any Borrower or any other Person to comply, in
connection with a Letter of Credit Borrowing, with the conditions set forth in this Agreement for
the making of a Revolving Advance, it being acknowledged that such conditions are not required
for the making of a Letter of Credit Borrowing and the obligation of Lenders to make Participation
Advances under Section 2.14;
(iii) any lack of validity or enforceability of any Letter of Credit;
(iv) any claim of breach of warranty that might be made by any
Borrower, Agent, Issuer or any Lender against the beneficiary of a Letter of Credit, or the existence
of any claim, set-off, recoupment, counterclaim, cross-claim, defense or other right which any
Borrower, Agent, Issuer or any Lender may have at any time against a beneficiary, any successor
beneficiary or any transferee of any Letter of Credit or assignee of the proceeds thereof (or any
Persons for whom any such transferee or assignee may be acting), Issuer, Agent or any Lender or
any other Person, whether in connection with this Agreement, the transactions contemplated herein
or any unrelated transaction (including any underlying transaction between any Borrower or any
Subsidiaries of such Borrower and the beneficiary for which any Letter of Credit was procured);
(v) the lack of power or authority of any signer of (or any defect in or
forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency,
accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other
document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud
in connection with any Letter of Credit, or the transport of any property or provision of services
relating to a Letter of Credit, in each case even if Issuer or any of Issuer’s Affiliates has been
notified thereof;
(vi) payment by Issuer under any Letter of Credit against presentation of
a demand, draft or certificate or other document which is forged or does not fully comply with the
terms of such Letter of Credit (provided that the foregoing shall not excuse Issuer from any
46
obligation under the terms of any applicable Letter of Credit to require the presentation of
documents that on their face appear to satisfy any applicable requirements for drawing under such
Letter of Credit prior to honoring or paying any such draw);
(vii) the solvency of, or any acts or omissions by, any beneficiary of any
Letter of Credit, or any other Person having a role in any transaction or obligation relating to a
Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic
of any property or services relating to a Letter of Credit;
(viii) any failure by Issuer or any of Issuer’s Affiliates to issue any Letter
of Credit in the form requested by Borrowing Agent, unless Agent and Issuer have each received
written notice from Borrowing Agent of such failure within three (3) Business Days after Issuer
shall have furnished Agent and Borrowing Agent a copy of such Letter of Credit and such error is
material and no drawing has been made thereon prior to receipt of such notice;
(ix) the occurrence of any Material Adverse Effect;
(x) any breach of this Agreement or any Other Document by any party
thereto;
(xi) the occurrence or continuance of an insolvency proceeding with
respect to any Loan Party;
(xii) the fact that a Default or an Event of Default shall have occurred and
be continuing;
(xiii) the fact that the Term shall have expired or this Agreement or the
obligations of Lenders to make Advances have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
2.19. Liability for Acts and Omissions.
(a) As between Borrowers and Issuer, Swing Loan Lender, Agent and Lenders,
each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, Issuer shall not be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection with the
application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if Issuer or any of its
Affiliates shall have been notified thereof); (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any
other party to which such Letter of Credit may be transferred, to comply fully with any conditions
required in order to draw upon such Letter of Credit or any other claim of any Borrower against
any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among
47
any Borrower and any beneficiary of any Letter of Credit or any such transferee; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable,
facsimile, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any document required
in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the control of Issuer,
including any Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any of Issuer’s rights or powers hereunder. Nothing in the preceding sentence shall
relieve Issuer from liability for Issuer’s gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final non-appealable judgment) in connection with actions
or omissions described in such clauses (i) through (viii) of such sentence. In no event shall Issuer
or Issuer’s Affiliates be liable to any Borrower for any indirect, consequential, incidental, punitive,
exemplary or special damages or expenses (including without limitation attorneys’ fees), or for
any damages resulting from any change in the value of any property relating to a Letter of Credit.
(b) Without limiting the generality of the foregoing, Issuer and each of its
Affiliates: (i) may rely on any oral or other communication believed in good faith by Issuer or
such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of
Credit; (ii) may honor any presentation if the documents presented appear on their face
substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may
honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was
pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise,
and shall be entitled to reimbursement to the same extent as if such presentation had initially been
honored, together with any interest paid by Issuer or its Affiliates; (iv) may honor any drawing
that is payable upon presentation of a statement advising negotiation or payment, upon receipt of
such statement (even if such statement indicates that a draft or other document is being delivered
separately), and shall not be liable for any failure of any such draft or other document to arrive, or
to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating
bank claiming that it rightfully honored under the laws or practices of the place where such bank
is located; and (vi) may settle or adjust any claim or demand made on Issuer or its Affiliate in any
way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or
of indemnity issued to a steamship agent or carrier or any document or instrument of like import
(each an “Order”) and honor any drawing in connection with any Letter of Credit that is the subject
of such Order, notwithstanding that any drafts or other documents presented in connection with
such Letter of Credit fail to conform in any way with such Letter of Credit.
(c) In furtherance and extension and not in limitation of the specific provisions
set forth above, any action taken or omitted by Issuer under or in connection with the Letters of
Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in
good faith and without gross negligence (as determined by a court of competent jurisdiction in a
final non-appealable judgment), shall not put Issuer under any resulting liability to any Borrower,
Agent or any Lender.
2.20. Mandatory Prepayments.
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(a) Subject to Section 7.1 hereof, when any Loan Party sells or otherwise
disposes of any Collateral other than Inventory in the Ordinary Course of Business or Obsolete
Inventory, Loan Parties shall repay the Advances in an amount equal to the net proceeds of such
sale (i.e., gross proceeds less the reasonable direct costs of such sales or other dispositions), such
repayments to be made promptly but in no event more than one (1) Business Day following receipt
of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent.
The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by
the terms and conditions hereof. Such repayments shall be applied (x) first, to the outstanding
principal installments of the Term Loan in the inverse order of the maturities thereof and (y)
second, to the remaining Advances (including cash collateralization of all Obligations relating to
any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b), provided
however that if no Default or Event of Default has occurred and is continuing, such repayments
shall be applied to cash collateralize any Obligations related to outstanding Letters of Credit last)
in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving
Advances in accordance with the terms hereof.
(b) All proceeds received by Borrowers or Agent (i) under any insurance policy
on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result
of any taking or condemnation of any assets or property, shall be applied in accordance with
Section 6.6 hereof.
2.21. Use of Proceeds.
(a) Borrowers shall apply the proceeds of Advances to (i) repay existing
indebtedness owed to SCM Specialty Finance Opportunities Funds, L.P., (ii) pay fees and
reasonable and documented expenses relating to this transaction, and (iii) provide for its working
capital needs and reimburse drawings under Letters of Credit. Borrowers shall not use the proceeds
of any Revolving Advance to prepay the Term Loan.
(b) Without limiting the generality of Section 2.21(a) above, neither the Loan
Parties nor any other Person which may in the future become party to this Agreement or the Other
Documents as a Loan Party, intends to use nor shall they use any portion of the proceeds of the
Advances, directly or indirectly, for any purpose in violation of Applicable Law.
2.22. Defaulting Lender.
(a) Notwithstanding anything to the contrary contained herein, in the event any
Lender is a Defaulting Lender, all rights and obligations hereunder of such Defaulting Lender and
of the other parties hereto shall be modified to the extent of the express provisions of this Section
2.22 so long as such Lender is a Defaulting Lender.
(b) (i) except as otherwise expressly provided for in this Section 2.22,
Revolving Advances shall be made pro rata from Lenders holding Revolving Commitments which
are not Defaulting Lenders based on their respective Revolving Commitment Percentages, and no
Revolving Commitment Percentage of any Lender or any pro rata share of any Revolving
Advances required to be advanced by any Lender shall be increased as a result of any Lender being
a Defaulting Lender. Amounts received in respect of principal of any type of Revolving Advances
49
shall be applied to reduce such type of Revolving Advances of each Lender (other than any
Defaulting Lender) holding a Revolving Commitment in accordance with their Revolving
Commitment Percentages; provided, that, Agent shall not be obligated to transfer to a Defaulting
Lender any payments received by Agent for Defaulting Lender’s benefit, nor shall a Defaulting
Lender be entitled to the sharing of any payments hereunder (including any principal, interest or
fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent.
Agent may hold and, in its discretion, re-lend to a Borrower the amount of such payments received
or retained by it for the account of such Defaulting Lender.
(ii) fees pursuant to Section 3.3(b) hereof shall cease to accrue in favor
of such Defaulting Lender.
(iii) if any Swing Loans are outstanding or any Letter of Credit
Obligations (or drawings under any Letter of Credit for which Issuer has not been reimbursed) are
outstanding or exist at the time any such Lender holding a Revolving Commitment becomes a
Defaulting Lender, then:
(A) Defaulting Lender’s Participation Commitment in the
outstanding Swing Loans and of the Maximum Undrawn Amount of all outstanding Letters of
Credit shall be reallocated among Non-Defaulting Lenders holding Revolving Commitments in
proportion to the respective Revolving Commitment Percentages of such Non-Defaulting Lenders
to the extent (but only to the extent) that (x) such reallocation does not cause the aggregate sum of
outstanding Revolving Advances made by any such Non-Defaulting Lender holding a Revolving
Commitment plus such Lender’s reallocated Participation Commitment in the outstanding Swing
Loans plus such Lender’s reallocated Participation Commitment in the aggregate Maximum
Undrawn Amount of all outstanding Letters of Credit to exceed the Revolving Commitment
Amount of any such Non-Defaulting Lender, and (y) no Default or Event of Default has occurred
and is continuing at such time;
(B) if the reallocation described in clause (A) above cannot, or
can only partially, be effected, Borrowers shall within one Business Day following notice by Agent
(x) first, prepay any outstanding Swing Loans that cannot be reallocated, and (y) second, cash
collateralize for the benefit of Issuer, Borrowers’ obligations corresponding to such Defaulting
Lender’s Participation Commitment in the Maximum Undrawn Amount of all Letters of Credit
(after giving effect to any partial reallocation pursuant to clause (A) above) in accordance with
Section 3.2(b) for so long as such Obligations are outstanding;
(C) if Borrowers cash collateralize any portion of such
Defaulting Lender’s Participation Commitment in the Maximum Undrawn Amount of all Letters
of Credit pursuant to clause (B) above, Borrowers shall not be required to pay any fees to such
Defaulting Lender pursuant to Section 3.2(a) with respect to such Defaulting Lender’s Revolving
Commitment Percentage of Maximum Undrawn Amount of all Letters of Credit during the period
such Defaulting Lender’s Participation Commitment in the Maximum Undrawn Amount of all
Letters of Credit are cash collateralized;
(D) if Defaulting Lender’s Participation Commitment in the
Maximum Undrawn Amount of all Letters of Credit is reallocated pursuant to clause (A) above,
50
then the fees payable to Lenders holding Revolving Commitments pursuant to Section 3.2(a) shall
be adjusted and reallocated to Non-Defaulting Lenders holding Revolving Commitments in
accordance with such reallocation; and
(E) if all or any portion of such Defaulting Lender’s
Participation Commitment in the Maximum Undrawn Amount of all Letters of Credit is neither
reallocated nor cash collateralized pursuant to clauses (A) or (B) above, then, without prejudice to
any rights or remedies of Issuer or any other Lender hereunder, all Letter of Credit Fees payable
under Section 3.2(a) with respect to such Defaulting Lender’s Revolving Commitment Percentage
of the Maximum Undrawn Amount of all Letters of Credit shall be payable to the Issuer (and not
to such Defaulting Lender) until (and then only to the extent that) such Participation Commitment
in the Maximum Undrawn Amount of all Letters of Credit is reallocated and/or cash collateralized;
and
(iv) so long as any Lender holding a Revolving Commitment is a
Defaulting Lender, Swing Loan Lender shall not be required to fund any Swing Loans and Issuer
shall not be required to issue, amend or increase any Letter of Credit, unless such Issuer is satisfied
that the related exposure and Defaulting Lender’s Participation Commitment in the Maximum
Undrawn Amount of all Letters of Credit and all Swing Loans (after giving effect to any such
issuance, amendment, increase or funding) will be fully allocated to Non-Defaulting Lenders
holding Revolving Commitments and/or cash collateral for such Letters of Credit will be provided
by Borrowers in accordance with clause (A) and (B) above, and participating interests in any newly
made Swing Loan or any newly issued or increased Letter of Credit shall be allocated among Non-
Defaulting Lenders in a manner consistent with Section 2.22(b)(iii)(A) above (and such Defaulting
Lender shall not participate therein).
(c) A Defaulting Lender shall not be entitled to give instructions to Agent or to
approve, disapprove, consent to or vote on any matters relating to this Agreement and the Other
Documents, and all amendments, waivers and other modifications of this Agreement and the Other
Documents may be made without regard to a Defaulting Lender and, for purposes of the definition
of “Required Lenders”, a Defaulting Lender shall not be deemed to be a Lender, to have any
outstanding Advances or a Revolving Commitment Percentage, Term Loan Commitment
Percentage, provided that this clause (c) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification described in clauses (i) or (ii) of Section
16.2(b).
(d) Other than as expressly set forth in this Section 2.22, the rights and
obligations of a Defaulting Lender (including the obligation to indemnify Agent) and the other
parties hereto shall remain unchanged. Nothing in this Section 2.22 shall be deemed to release
any Defaulting Lender from its obligations under this Agreement and the Other Documents, shall
alter such obligations, shall operate as a waiver of any default by such Defaulting Lender
hereunder, or shall prejudice any rights which any Borrower, Agent or any Lender may have
against any Defaulting Lender as a result of any default by such Defaulting Lender hereunder.
(e) In the event that Agent, Borrowers, Swing Loan Lender and Issuer agree in
writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to
be a Defaulting Lender, then Agent will so notify the parties hereto, and, if such cured Defaulting
51
Lender is a Lender holding a Revolving Commitment, then Participation Commitments of Lenders
holding Revolving Commitments (including such cured Defaulting Lender) of the Swing Loans
and Maximum Undrawn Amount of all outstanding Letters of Credit shall be reallocated to reflect
the inclusion of such Lender’s Revolving Commitment, and on such date such Lender shall
purchase at par such of the Revolving Advances of the other Lenders as Agent shall determine
may be necessary in order for such Lender to hold such Revolving Advances in accordance with
its Revolving Commitment Percentage.
(f) If Swing Loan Lender or Issuer has a good faith belief that any Lender
holding a Revolving Commitment has defaulted in fulfilling its obligations under one or more
other agreements in which such Lender commits to extend credit, Swing Loan Lender shall not be
required to fund any Swing Loans and Issuer shall not be required to issue, amend or increase any
Letter of Credit, unless Swing Loan Lender or Issuer, as the case may be, shall have entered into
arrangements with Borrowers or such Lender, satisfactory to Swing Loan Lender or Issuer, as the
case may be, to defease any risk to it in respect of such Lender hereunder.
2.23. Payment of Obligations. Agent may charge to Borrowers’ Account as a Revolving
Advance or, at the discretion of Swing Loan Lender, as a Swing Loan (i) all payments with respect
to any of the Obligations required hereunder (including without limitation principal payments,
payments of interest, payments of Letter of Credit Fees and all other fees provided for hereunder
and payments under Sections 16.5 and 16.9) as and when each such payment shall become due
and payable (whether as regularly scheduled, upon or after acceleration, upon maturity or
otherwise), (ii) without limiting the generality of the foregoing clause (i), (a) all amounts expended
by Agent or any Lender pursuant to Sections 4.2 or 4.3 hereof and (b) all reasonable expenses
which Agent incurs in connection with the forwarding of Advance proceeds and the establishment
and maintenance of any Blocked Accounts or Depository Accounts as provided for in Section
4.8(h), and (iii) any sums expended by Agent or any Lender due to any Borrower’s failure to
perform or comply with its obligations under this Agreement or any Other Document including
any Borrower’s obligations under Sections 3.3, 3.4, 4.4, 4.7, 6.4, 6.6, 6.7 and 6.8 hereof, and all
amounts so charged shall be added to the Obligations and shall be secured by the Collateral. To
the extent Revolving Advances are not actually funded by the other Lenders in respect of any such
amounts so charged, all such amounts so charged shall be deemed to be Swing Loans made by and
owing to Agent and Agent shall be entitled to all rights (including accrual of interest) and remedies
of a Lender under this Agreement and the Other Documents with respect to such Revolving
Advances.
III. INTEREST AND FEES.
3.1. Interest. Interest on Advances shall be payable in arrears on the first day of each
month with respect to Domestic Rate Loans and, with respect to LIBOR Rate Loans, at the end of
each Interest Period, provided that all accrued and unpaid interest shall be due and payable at the
end of the Term. Interest charges shall be computed on the actual principal amount of Advances
outstanding during the month at a rate per annum equal to (i) with respect to Revolving Advances,
the applicable Revolving Interest Rate, (ii) with respect to Swing Loans, the Revolving Interest
Rate for Domestic Rate Loans and (iii) with respect to the Term Loan, the applicable Term Loan
Rate (as applicable, the “Contract Rate”). Except as expressly provided otherwise in this
Agreement, any Obligations other than the Advances that are not paid when due shall accrue
52
interest at the Revolving Interest Rate for Domestic Rate Loans, subject to the provision of the
final sentence of this Section 3.1 regarding the Default Rate. Whenever, subsequent to the date of
this Agreement, the Alternate Base Rate is increased or decreased, the applicable Contract Rate
shall be similarly changed without notice or demand of any kind by an amount equal to the amount
of such change in the Alternate Base Rate during the time such change or changes remain in effect.
The LIBOR Rate shall be adjusted with respect to LIBOR Rate Loans without notice or demand
of any kind on the effective date of any change in the Reserve Percentage as of such effective date.
Upon and after the occurrence of an Event of Default, and during the continuation thereof, at the
option of Agent or at the direction of Required Lenders (or, in the case of any Event of Default
under Section 10.7, immediately and automatically upon the occurrence of any such Event of
Default without the requirement of any affirmative action by any party), the Obligations shall bear
interest at the applicable Contract Rate plus two percent (2%) per annum (the “Default Rate”).
3.2. Letter of Credit Fees.
(a) Borrowers shall pay (x) to Agent, for the ratable benefit of Lenders holding
Revolving Commitments, fees for each Letter of Credit for the period from and excluding the date
of issuance of same to and including the date of expiration or termination, equal to the average
daily face amount of each outstanding Letter of Credit multiplied by the Applicable Margin for
Revolving Advances consisting of LIBOR Rate Loans, such fees to be calculated on the basis of a
360-day year for the actual number of days elapsed and to be payable quarterly in arrears on the
first day of each calendar quarter and on the last day of the Term, and (y) to Issuer, a fronting fee
of one quarter of one percent (0.25%) per annum times the average daily face amount of each
outstanding Letter of Credit for the period from and excluding the date of issuance of same to and
including the date of expiration or termination, to be payable quarterly in arrears on the first day
of each calendar quarter and on the last day of the Term. (all of the foregoing fees, the “Letter of
Credit Fees”). In addition, Borrowers shall pay to Agent, for the benefit of Issuer, any and all
administrative, issuance, amendment, payment and negotiation charges with respect to Letters of
Credit and all fees and expenses as agreed upon by Issuer and the Borrowing Agent in connection
with any Letter of Credit, including in connection with the opening, amendment or renewal of any
such Letter of Credit and any acceptances created thereunder, all such charges, fees and expenses,
if any, to be payable on demand. All such charges shall be deemed earned in full on the date when
the same are due and payable hereunder and shall not be subject to rebate or pro-ration upon the
termination of this Agreement for any reason. Any such charge in effect at the time of a particular
transaction shall be the charge for that transaction, notwithstanding any subsequent change in
Issuer’s prevailing charges for that type of transaction. Upon and after the occurrence of an Event
of Default, and during the continuation thereof, at the option of Agent or at the direction of
Required Lenders (or, in the case of any Event of Default under Section 10.7, immediately and
automatically upon the occurrence of any such Event of Default without the requirement of any
affirmative action by any party), the Letter of Credit Fees described in clause (x) of this Section
3.2(a) shall be increased by an additional two percent (2.0%) per annum.
(b) At any time following the occurrence and during the continuance of an
Event of Default that has not been cured within five (5) days of receipt by any Loan Party of notice
from Agent of such Event of Default, at the option of Agent or at the direction of Required Lenders
(or, in the case of any Event of Default under Section 10.7, immediately and automatically upon
the occurrence of such Event of Default, without the requirement of any affirmative action by any
53
party), or upon the expiration of the Term or any other termination of this Agreement (and also, if
applicable, in connection with any mandatory prepayment under Section 2.20), Borrowers will
cause cash to be deposited and maintained in an account with Agent, as cash collateral, in an
amount equal to one hundred and five percent (105%) of the Maximum Undrawn Amount of all
outstanding Letters of Credit, and each Borrower hereby irrevocably authorizes Agent, in its
discretion, on such Borrower’s behalf and in such Borrower’s name, to open such an account and
to make and maintain deposits therein, or in an account opened by such Borrower, in the amounts
required to be made by such Borrower, out of the proceeds of Receivables or other Collateral or
out of any other funds of such Borrower coming into any Lender’s possession at any time. Agent
may, in its discretion, invest such cash collateral (less applicable reserves) in such short-term
money-market items as to which Agent and such Borrower mutually agree (or, in the absence of
such agreement, as Agent may reasonably select) and the net return on such investments shall be
credited to such account and constitute additional cash collateral, or Agent may (notwithstanding
the foregoing) establish the account provided for under this Section 3.2(b) as a non-interest bearing
account and in such case Agent shall have no obligation (and Borrowers hereby waive any claim)
under Article 9 of the Uniform Commercial Code or under any other Applicable Law to pay
interest on such cash collateral being held by Agent. No Borrower may withdraw amounts credited
to any such account except upon the occurrence of all of the following: (x) payment and
performance in full of all Obligations; (y) expiration of all Letters of Credit; and (z) termination
of this Agreement. Borrowers hereby assign, pledge and grant to Agent, for its benefit and the
ratable benefit of Issuer, Lenders and each other Secured Party, a continuing security interest in
and to and Lien on any such cash collateral and any right, title and interest of Borrowers in any
deposit account, securities account or investment account into which such cash collateral may be
deposited from time to time to secure the Obligations, specifically including all Obligations with
respect to any Letters of Credit. Borrowers agree that upon the coming due of any Reimbursement
Obligations (or any other Obligations, including Obligations for Letter of Credit Fees) with respect
to the Letters of Credit, Agent may use such cash collateral to pay and satisfy such Obligations.
3.3. Closing Fee and Facility Fee.
(a) Upon the execution of this Agreement, Borrowers shall pay to Agent a
closing fee of $30,000. The balance, if any, of (i) the good faith deposit of $50,000 and (ii) the
legal deposit of $40,000, in each case, heretofore paid by Borrowers to Agent remaining after
application of such fees to the reasonable and documented out-of-pocket costs and expenses shall
be credited to the Borrowers’ Account.
(b) If for any calendar quarter during the Term the average daily unpaid balance
of the sum of Revolving Advances plus Swing Loans plus the Maximum Undrawn Amount of all
outstanding Letters of Credit for each day of such calendar quarter does not equal the Maximum
Revolving Advance Amount, then Borrowers shall pay to Agent, for the ratable benefit of Lenders
holding the Revolving Commitments based on their Revolving Commitment Percentages, a fee at
a rate equal to one-quarter of one percent (0.25%) per annum on the amount by which the
Maximum Revolving Advance Amount exceeds such average daily unpaid balance (the “Facility
Fee”). Such Facility Fee shall be payable to Agent in arrears on the first day of each calendar
quarter with respect to the previous calendar quarter.
3.4. Collateral Monitoring Fee and Collateral Evaluation Fee.
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(a) Borrowers shall pay Agent a collateral monitoring fee equal to $2,000 per
month commencing on the first day of the month following the Closing Date and on the first day
of each month thereafter during the Term. The collateral monitoring fee shall be deemed earned
in full on the date when same is due and payable hereunder and shall not be subject to rebate or
proration upon termination of this Agreement for any reason.
(b) Borrowers shall pay to Agent promptly at the conclusion of any collateral
evaluation performed by or for the benefit of Agent (whether such examination is performed by
Agent’s employees or by a third party retained by Agent), including, without limitation, any field
examination, collateral analysis or other business analysis, the need for which is to be determined
by Agent and which evaluation is undertaken by Agent or for Agent’s benefit, a collateral
evaluation fee in an amount equal to $1,000 (or such other amount customarily charged by Agent
to its customers) per day for each person employed to perform such evaluation (based on an eight
(8) hour day, and subject to an hourly increase if additional hours are worked), plus a per
examination field exam management fee in the amount of $2,500 for new facilities, and $1,500 for
recurring examinations (or, in each case, such other amount customarily charged by Agent to its
customers), plus all costs and disbursements incurred by Agent in the performance of such
examination or analysis, and further provided that if third parties are retained to perform such
collateral evaluations, either at the request of another Lender or for extenuating reasons determined
by Agent in its sole discretion, then such fees charged by such third parties plus all costs and
disbursements incurred by such third party, shall be the responsibility of Borrower and shall not
be subject to the foregoing limits.
(c) All of the fees and reasonable and documented out-of-pocket costs and
expenses of any appraisals conducted pursuant to Section 4.7 hereof shall be paid for when due,
in full and without deduction, off-set or counterclaim by Borrowers.
3.5. Computation of Interest and Fees. Interest and fees hereunder shall be computed
on the basis of a year of 360 days and for the actual number of days elapsed. If any payment to be
made hereunder becomes due and payable on a day other than a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and interest thereon shall be payable at the
applicable Contract Rate during such extension.
3.6. Maximum Charges. In no event whatsoever shall interest and other charges
charged hereunder exceed the highest rate permissible under Applicable Law. In the event interest
and other charges as computed hereunder would otherwise exceed the highest rate permitted under
Applicable Law: (i) the interest rates hereunder will be reduced to the maximum rate permitted
under Applicable Law; (ii) such excess amount shall be first applied to any unpaid principal
balance owed by Borrowers; and (iii) if the then remaining excess amount is greater than the
previously unpaid principal balance, Lenders shall promptly refund such excess amount to
Borrowers and the provisions hereof shall be deemed amended to provide for such permissible
rate.
3.7. Increased Costs. In the event that any Applicable Law or any Change in Law or
compliance by any Lender (for purposes of this Section 3.7, the term “Lender” shall include Agent,
Swing Loan Lender, any Issuer or Lender and any corporation or bank controlling Agent, Swing
Loan Lender, any Lender or Issuer and the office or branch where Agent, Swing Loan Lender, any
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Lender or Issuer (as so defined) makes or maintains any LIBOR Rate Loans) with any request or
directive (whether or not having the force of law) from any central bank or other financial,
monetary or other authority, shall:
(a) subject Agent, Swing Loan Lender, any Lender or Issuer to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter
of Credit or any LIBOR Rate Loan, or change the basis of taxation of payments to Agent, Swing
Loan Lender, such Lender or Issuer in respect thereof (except for Indemnified Taxes or Other
Taxes covered by Section 3.10 and the imposition of, or any change in the rate of, any Excluded
Tax payable by Agent, Swing Loan Lender, such Lender or the Issuer);
(b) impose, modify or deem applicable any reserve, special deposit,
assessment, special deposit, compulsory loan, insurance charge or similar requirement against
assets held by, or deposits in or for the account of, advances or loans by, or other credit extended
by, any office of Agent, Swing Loan Lender, Issuer or any Lender, including pursuant to
Regulation D of the Board of Governors of the Federal Reserve System; or
(c) impose on Agent, Swing Loan Lender, any Lender or Issuer or the London
interbank LIBOR market any other condition, loss or expense (other than Taxes) affecting this
Agreement or any Other Document or any Advance made by any Lender, or any Letter of Credit
or participation therein;
and the result of any of the foregoing is to increase the cost to Agent, Swing Loan Lender, any
Lender or Issuer of making, converting to, continuing, renewing or maintaining its Advances
hereunder by an amount that Agent, Swing Loan Lender, such Lender or Issuer deems to be
material or to reduce the amount of any payment (whether of principal, interest or otherwise) in
respect of any of the Advances by an amount that Agent, Swing Loan Lender or such Lender or
Issuer deems to be material, then, in any case Borrowers shall promptly pay Agent, Swing Loan
Lender, such Lender or Issuer, upon its demand, such additional amount as will compensate Agent,
Swing Loan Lender or such Lender or Issuer for such additional cost or such reduction, as the case
may be, provided that the foregoing shall not apply to increased costs which are reflected in the
LIBOR Rate, as the case may be. Agent, Swing Loan Lender, such Lender or Issuer shall certify
the amount of such additional cost or reduced amount to Borrowing Agent, and such certification
shall be conclusive absent manifest error.
3.8. Basis For Determining Interest Rate Inadequate or Unfair. In the event that Agent
or any Lender shall have determined that:
(a) reasonable means do not exist for ascertaining the LIBOR Rate applicable
pursuant to Section 2.2 hereof for any Interest Period; or
(b) Dollar deposits in the relevant amount and for the relevant maturity are not
available in the London interbank LIBOR market, with respect to an outstanding LIBOR Rate
Loan, a proposed LIBOR Rate Loan, or a proposed conversion of a Domestic Rate Loan into a
LIBOR Rate Loan; or
(c) the making, maintenance or funding of any LIBOR Rate Loan has been
made impracticable or unlawful by compliance by Agent or such Lender in good faith with any
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Applicable Law or any interpretation or application thereof by any Governmental Body or with
any request or directive of any such Governmental Body (whether or not having the force of law);
or
(d) the LIBOR Rate will not adequately and fairly reflect the cost to such
Lender of the establishment or maintenance of any LIBOR Rate Loan,
then Agent shall give Borrowing Agent prompt written or telephonic notice of such determination.
If such notice is given, (i) any such requested LIBOR Rate Loan shall be made as a Domestic Rate
Loan, unless Borrowing Agent shall notify Agent no later than 10:00 a.m. two (2) Business Days
prior to the date of such proposed borrowing, that its request for such borrowing shall be cancelled
or made as an unaffected type of LIBOR Rate Loan, (ii) any Domestic Rate Loan or LIBOR Rate
Loan which was to have been converted to an affected type of LIBOR Rate Loan shall be continued
as or converted into a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later
than 10:00 a.m. two (2) Business Days prior to the proposed conversion, shall be maintained as an
unaffected type of LIBOR Rate Loan, and (iii) any outstanding affected LIBOR Rate Loans shall
be converted into a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later than
10:00 a.m. two (2) Business Days prior to the last Business Day of the then current Interest Period
applicable to such affected LIBOR Rate Loan, shall be converted into an unaffected type of LIBOR
Rate Loan, on the last Business Day of the then current Interest Period for such affected LIBOR
Rate Loans (or sooner, if any Lender cannot continue to lawfully maintain such affected LIBOR
Rate Loan). Until such notice has been withdrawn, Lenders shall have no obligation to make an
affected type of LIBOR Rate Loan or maintain outstanding affected LIBOR Rate Loans and no
Borrower shall have the right to convert a Domestic Rate Loan or an unaffected type of LIBOR
Rate Loan into an affected type of LIBOR Rate Loan.
3.9. Capital Adequacy.
(a) In the event that Agent, Swing Loan Lender or any Lender shall have
determined that any Applicable Law or guideline regarding capital adequacy, or any Change in
Law or any change in the interpretation or administration thereof by any Governmental Body,
central bank or comparable agency charged with the interpretation or administration thereof, or
compliance by Agent, Swing Loan Lender, Issuer or any Lender (for purposes of this Section 3.9,
the term “Lender” shall include Agent, Swing Loan Lender, Issuer or any Lender and any
corporation or bank controlling Agent , Swing Loan Lender or any Lender and the office or branch
where Agent , Swing Loan Lender or any Lender (as so defined) makes or maintains any LIBOR
Rate Loans) with any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on Agent, Swing Loan Lender or any Lender’s capital as a
consequence of its obligations hereunder (including the making of any Swing Loans) to a level
below that which Agent , Swing Loan Lender or such Lender could have achieved but for such
adoption, change or compliance (taking into consideration Agent’s, Swing Loan Lender’s and each
Lender’s policies with respect to capital adequacy) by an amount deemed by Agent, Swing Loan
Lender or any Lender to be material, then, from time to time, Borrowers shall pay upon demand
to Agent , Swing Loan Lender or such Lender such additional amount or amounts as will
compensate Agent , Swing Loan Lender or such Lender for such reduction. In determining such
amount or amounts, Agent, Swing Loan Lender or such Lender may use any reasonable averaging
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or attribution methods. The protection of this Section 3.9 shall be available to Agent, Swing Loan
Lender and each Lender regardless of any possible contention of invalidity or inapplicability with
respect to the Applicable Law, rule, regulation, guideline or condition.
(b) A certificate of Agent, Swing Loan Lender or such Lender setting forth such
amount or amounts as shall be necessary to compensate Agent , Swing Loan Lender or such Lender
with respect to Section 3.9(a) hereof when delivered to Borrowing Agent shall be conclusive
absent manifest error.
3.10. Taxes.
(a) Any and all payments by or on account of any Obligations hereunder or
under any Other Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes; provided that if Borrowers shall be required by
Applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from such
payments, then (i) the sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section 3.10)
Agent, Swing Loan Lender, Lender, Issuer or Participant, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii) Borrowers shall
make such deductions and (iii) Borrowers shall timely pay the full amount deducted to the relevant
Governmental Body in accordance with Applicable Law.
(b) Without limiting the provisions of Section 3.10(a) above, Borrowers shall
timely pay any Other Taxes to the relevant Governmental Body in accordance with Applicable
Law.
(c) Each Borrower shall indemnify Agent, Swing Loan Lender, each Lender,
Issuer and any Participant, within ten (10) days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 3.10) paid by Agent, Swing Loan
Lender, such Lender, Issuer, or such Participant, as the case may be, and any penalties, interest
and reasonable and documented expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Body. A certificate as to the amount of such payment or liability delivered
to Borrowers by any Lender, Swing Loan Lender, Participant, or Issuer (with a copy to Agent), or
by Agent on its own behalf or on behalf of Swing Loan Lender, a Lender or Issuer, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by any Borrower to a Governmental Body, Borrowers shall deliver to Agent the original or
a certified copy of a receipt issued by such Governmental Body evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment reasonably satisfactory to
Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which any Borrower is resident for tax
purposes, or under any treaty to which such jurisdiction is a party, with respect to payments
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hereunder or under any Other Document shall deliver to Borrowers (with a copy to Agent), at the
time or times prescribed by Applicable Law or reasonably requested by Borrowers or Agent, such
properly completed and executed documentation prescribed by Applicable Law as will permit such
payments to be made without withholding or at a reduced rate of withholding. Notwithstanding
the submission of such documentation claiming a reduced rate of or exemption from U.S.
withholding tax, Agent shall be entitled to withhold United States federal income taxes at the full
30% withholding rate if in its reasonable judgment it is required to do so under the due diligence
requirements imposed upon a withholding agent under § 1.1441-7(b) of the United States Income
Tax Regulations or other Applicable Law. Further, Agent is indemnified under § 1.1461-1(e) of
the United States Income Tax Regulations against any claims and demands of any Lender, Issuer
or assignee or participant of a Lender or Issuer for the amount of any tax it deducts and withholds
in accordance with regulations under § 1441 of the Code. In addition, any Lender, if requested by
Borrowers or Agent, shall deliver such other documentation prescribed by Applicable Law or
reasonably requested by the Borrowers or Agent as will enable Borrowers or Agent to determine
whether or not such Lender is subject to backup withholding or information reporting
requirements. Without limiting the generality of the foregoing, in the event that any Borrower is
resident for tax purposes in the United States of America, any Foreign Lender (or other Lender)
shall deliver to Borrowers and Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender (or other Lender) becomes a Lender
under this Agreement (and from time to time thereafter upon the request of Borrowers or Agent,
but only if such Foreign Lender (or other Lender) is legally entitled to do so), whichever of the
following is applicable: two (2) duly completed valid originals of IRS Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States of America is a party,
(i) two (2) duly completed valid originals of IRS Form W-8ECI,
(ii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code,
(B) a “10 percent shareholder” of Borrowers within the meaning of section 881(c)(3)(B) of the
Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and
(y) two duly completed valid originals of IRS Form W-8BEN,
(iii) any other form prescribed by Applicable Law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by Applicable Law to permit the
Borrowers to determine the withholding or deduction required to be made, or
(iv) To the extent that any Lender is not a Foreign Lender, such Lender
shall submit to Agent two (2) originals of an IRS Form W-9 or any other form prescribed by
Applicable Law demonstrating that such Lender is not a Foreign Lender.
(f) If a payment made to a Lender, Swing Loan Lender, Participant, Issuer, or
Agent under this Agreement or any Other Document would be subject to U.S. Federal withholding
Tax imposed by FATCA if such Person fails to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable),
such Lender, Swing Loan Lender, Participant, Issuer, or Agent shall deliver to the Agent (in the
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case of Swing Loan Lender, a Lender, Participant or Issuer) and Borrowers (A) a certification
signed by the chief financial officer, principal accounting officer, treasurer or controller of such
Person, and (B) other documentation reasonably requested by Agent or any Borrower sufficient
for Agent and Borrowers to comply with their obligations under FATCA and to determine that
Swing Loan Lender, such Lender, Participant, Issuer, or Agent has complied with such applicable
reporting requirements.
(g) If Agent, Swing Loan Lender, a Lender, a Participant or Issuer determines,
in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by Borrowers or with respect to which Borrowers have paid
additional amounts pursuant to this Section 3.10, it shall pay to Borrowers an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by
Borrowers under this Section 3.10 with respect to the Indemnified Taxes or Other Taxes giving
rise to such refund); net of all reasonable and documented out-of-pocket expenses of the Agent,
Swing Loan Lender, such Lender, Participant, or the Issuer, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Body with respect to such
refund), provided that Borrowers, upon the request of Agent, Swing Loan Lender, such Lender,
Participant, or Issuer, agrees to repay the amount paid over to Borrowers (plus any penalties,
interest or other charges imposed by the relevant Governmental Body) to Agent, Swing Loan
Lender, such Lender, Participant or the Issuer in the event Agent, Swing Loan Lender, such
Lender, Participant or the Issuer is required to repay such refund to such Governmental Body. This
Section 3.10 shall not be construed to require Agent, Swing Loan Lender, any Lender, Participant,
or Issuer to make available its tax returns (or any other information relating to its taxes that it
deems confidential) to Borrowers or any other Person.
3.11. Replacement of Lenders. If any Lender (an “Affected Lender”) (a) makes demand
upon Borrowers for (or if Borrowers are otherwise required to pay) amounts pursuant to Section
3.7 or 3.9 hereof, (b) is unable to make or maintain LIBOR Rate Loans as a result of a condition
described in Section 2.2(h) hereof, (c) is a Defaulting Lender, or (d) denies any consent requested
by the Agent pursuant to Section 16.2(b) hereof, Borrowers may, within ninety (90) days of receipt
of such demand, notice (or the occurrence of such other event causing Borrowers to be required to
pay such compensation or causing Section 2.2(h) hereof to be applicable), or such Lender
becoming a Defaulting Lender or denial of a request by Agent pursuant to Section 16.2(b) hereof,
as the case may be, by notice in writing to the Agent and such Affected Lender (i) request the
Affected Lender to cooperate with Borrowers in obtaining a replacement Lender satisfactory to
Agent and Borrowers (the “Replacement Lender”); (ii) request the non-Affected Lenders to
acquire and assume all of the Affected Lender’s Advances and its Revolving Commitment
Percentage, and/or Term Loan Commitment Percentages, as applicable, as provided herein, but
none of such Lenders shall be under any obligation to do so; or (iii) propose a Replacement Lender
subject to approval by Agent in its good faith business judgment. If any satisfactory Replacement
Lender shall be obtained, and/or if any one or more of the non-Affected Lenders shall agree to
acquire and assume all of the Affected Lender’s Advances and its Revolving Commitment
Percentage and/or Term Loan Commitment Percentages, as applicable, then such Affected Lender
shall assign, in accordance with Section 16.3 hereof, all of its Advances and its Revolving
Commitment Percentage and/or Term Loan Commitment Percentages, as applicable, and other
rights and obligations under this Loan Agreement and the Other Documents to such Replacement
Lender or non-Affected Lenders, as the case may be, in exchange for payment of the principal
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amount so assigned and all interest and fees accrued on the amount so assigned, plus all other
Obligations then due and payable to the Affected Lender.
IV. COLLATERAL: GENERAL TERMS
4.1. Security Interest in the Collateral. To secure the prompt payment and performance
to Agent, Issuer and each Lender (and each other holder of any Obligations) of the Obligations,
each Loan Party hereby assigns, pledges and grants to Agent for its benefit and for the ratable
benefit of each Lender, Issuer and each other Secured Party, a continuing security interest in and
to and Lien on all of its Collateral, whether now owned or existing or hereafter created, acquired
or arising and wheresoever located. Each Loan Party shall ▇▇▇▇ its books and records as may be
necessary or appropriate to evidence, protect and perfect Agent’s security interest and shall cause
its financial statements to reflect such security interest. Each Loan Party shall provide Agent with
written notice of all commercial tort claims in favor of such Loan Party and with a potential value
in excess of $50,000 promptly upon the occurrence of any events giving rise to any such claim(s)
(regardless of whether legal proceedings have yet been commenced), such notice to contain a brief
description of the claim(s), the events out of which such claim(s) arose and the parties against
which such claims may be asserted and, if applicable in any case where legal proceedings regarding
such claim(s) have been commenced, the case title together with the applicable court and docket
number. Upon delivery of each such notice, such Loan Party shall be deemed to thereby grant to
Agent a security interest and lien in and to such commercial tort claims described therein and all
proceeds thereof. Each Loan Party shall provide Agent with written notice promptly upon
becoming the beneficiary under any letter of credit or otherwise obtaining any right, title or interest
in any letter of credit rights with a potential value in excess of $50,000, and at Agent’s request
shall take such actions as Agent may reasonably request for the perfection of Agent’s security
interest therein.
4.2. Perfection of Security Interest. Each Loan Party shall take all action that may be
necessary or desirable, or that Agent may reasonably request, so as at all times to maintain the
validity, perfection, enforceability and priority of Agent’s security interest in and Lien on the
Collateral or to enable Agent to protect, exercise or enforce its rights hereunder and in the
Collateral, including, but not limited to, (i) promptly discharging all Liens other than Permitted
Encumbrances, (ii) obtaining Lien Waiver Agreements, (iii) delivering to Agent, endorsed or
accompanied by such instruments of assignment as Agent may specify, and stamping or marking,
in such manner as Agent may specify, any and all chattel paper, instruments, letters of credits and
advices thereof and documents evidencing or forming a part of the Collateral, (iv) entering into
warehousing, lockbox, customs and freight agreements and other custodial arrangements
satisfactory to Agent, and (v) executing and delivering financing statements, control agreements,
instruments of pledge, mortgages, notices and assignments, in each case in form and substance
reasonably satisfactory to Agent, relating to the creation, validity, perfection, maintenance or
continuation of Agent’s security interest and Lien under the Uniform Commercial Code or other
Applicable Law. By its signature hereto, each Loan Party hereby authorizes Agent to file against
such Loan Party, one or more financing, continuation or amendment statements pursuant to the
Uniform Commercial Code in form and substance satisfactory to Agent (which statements may
have a description of collateral which is broader than that set forth herein, including without
limitation a description of Collateral as “all assets” and/or “all personal property” of any Loan
Party). All reasonable charges, expenses and fees Agent may incur in doing any of the foregoing,
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and any local taxes relating thereto, shall be charged to Borrowers’ Account as a Revolving
Advance of a Domestic Rate Loan and added to the Obligations, or, at Agent’s option, shall be
paid by Loan Parties to Agent for its benefit and for the ratable benefit of Lenders immediately
upon demand.
4.3. Preservation of Collateral. Following the occurrence and continuance of a Default
or Event of Default, in addition to the rights and remedies set forth in Section 11.1 hereof, Agent:
(a) may at any time take such steps as Agent deems necessary to protect Agent’s interest in and to
preserve the Collateral, including the hiring of security guards or the placing of other security
protection measures as Agent may deem appropriate; (b) may employ and maintain at any of any
Loan Party’s premises a custodian who shall have full authority to do all acts necessary to protect
Agent’s interests in the Collateral; (c) may lease warehouse facilities to which Agent may move
all or part of the Collateral; (d) may use any Loan Party’s owned or leased lifts, hoists, trucks and
other facilities or equipment for handling or removing the Collateral; and (e) shall have, and is
hereby granted, a right of ingress and egress to the places where the Collateral is located, and may
proceed over and through any of Loan Parties’ owned or leased property. Each Loan Party shall
cooperate fully with all of Agent’s efforts to preserve the Collateral and will take such actions to
preserve the Collateral as Agent may direct. All of Agent’s reasonable expenses of preserving the
Collateral, including any expenses relating to the bonding of a custodian, shall be charged to
Borrowers’ Account as a Revolving Advance maintained as a Domestic Rate Loan and added to
the Obligations.
4.4. Ownership and Location of Collateral.
(a) With respect to the Collateral, at the time the Collateral becomes subject to
Agent’s security interest: (i) each Loan Party shall be the sole owner of and fully authorized and
able to sell, transfer, pledge and/or grant a first priority security interest in each and every item of
its respective Collateral to Agent; and, except for Permitted Encumbrances the Collateral shall be
free and clear of all Liens whatsoever; (ii) each document and agreement executed by each Loan
Party or delivered to Agent or any Lender in connection with this Agreement shall be true and
correct in all respects; (iii) all signatures and endorsements of each Loan Party that appear on such
documents and agreements shall be genuine and each Loan Party shall have full capacity to execute
same; and (iv) each Loan Party’s equipment and Inventory shall be located as set forth on Schedule
4.4(a) and shall not be removed from such location(s) unless the Loan Parties (A) provide Agent
with prior written notice of such move and (B) within sixty (60) days following such move, at the
reasonable request of Agent, obtain a Lien Waiver Agreement for such new location to the extent
the prior location was subject to a Lien Waiver Agreement, except, in each case of this clause (iv),
with respect to the sale, disposition or movement of Inventory in the Ordinary Course of Business,
Obsolete Inventory and equipment to the extent permitted in Section 7.1(b) hereof.
(b) (i) There is no location at which any Loan Party has any Inventory (except
for Inventory in transit) or other Collateral with a book value in excess of $50,000 other than those
locations listed on Schedule 4.4(b)(i); (ii) Schedule 4.4(b)(ii) hereto contains a correct and
complete list, as of the Closing Date, of the legal names and addresses of each warehouse at which
Inventory of any Loan Party is stored; none of the receipts received by any Loan Party from any
warehouse states that the goods covered thereby are to be delivered to bearer or to the order of a
named Person or to a named Person and such named Person’s assigns; (iii) Schedule 4.4(b)(iii)
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hereto sets forth a correct and complete list as of the Closing Date of (A) each place of business of
each Loan Party and (B) the chief executive office of each Loan Party; and (iv) Schedule 4.4(b)(iv)
hereto sets forth a correct and complete list as of the Closing Date of the location, by state and
street address, of all Real Property owned or leased by each Loan Party, identifying which
properties are owned and which are leased.
4.5. Defense of Agent’s and Lenders’ Interests. Until (a) payment and performance in
full of all of the Obligations and (b) termination of this Agreement, Agent’s interests in the
Collateral shall continue in full force and effect. During such period no Loan Party shall, without
Agent’s prior written consent, pledge, sell (except for sales or other dispositions otherwise
permitted in Section 7.1(b) hereof), assign, transfer, create or suffer to exist a Lien upon or
encumber or allow or suffer to be encumbered in any way except for Permitted Encumbrances,
any part of the Collateral. Each Loan Party shall defend Agent’s interests in the Collateral against
any and all Persons whatsoever. At any time following demand by Agent for payment of all
Obligations, Agent shall have the right to take possession of the indicia of the Collateral and the
Collateral in whatever physical form contained, including: labels, stationery, documents,
instruments and advertising materials. If Agent exercises this right to take possession of the
Collateral, Loan Parties shall, upon demand, assemble it in the best manner possible and make it
available to Agent at a place reasonably convenient to Agent. In addition, with respect to all
Collateral, Agent and Lenders shall be entitled to all of the rights and remedies set forth herein and
further provided by the Uniform Commercial Code or other Applicable Law. Each Loan Party
shall, and Agent may, at its option, instruct all suppliers, carriers, forwarders, warehousers or
others receiving or holding cash, checks, Inventory, documents or instruments in which Agent
holds a security interest to deliver same to Agent and/or subject to Agent’s order and if they shall
come into any Loan Party’s possession, they, and each of them, shall be held by such Loan Party
in trust as Agent’s trustee, and such Loan Party will immediately deliver them to Agent in their
original form together with any necessary endorsement.
4.6. Inspection of Premises. At all reasonable times and from time to time as often as
Agent shall elect in its sole discretion, Agent and each Lender shall have full access to and the
right to audit, check, inspect and make abstracts and copies from each Loan Party’s books, records,
audits, correspondence and all other papers relating to the Collateral and the operation of each
Loan Party’s business. Agent, any Lender and their agents may enter upon any premises of any
Loan Party at any time during business hours and at any other reasonable time, and from time to
time as often as Agent shall elect in its sole discretion, for the purpose of inspecting the Collateral
and any and all records pertaining thereto and the operation of such Loan Party’s business. In the
absence of an Event of Default, the Borrowers will not be required to reimburse the reasonable
and documented expenses of more than two (2) such visits for the Agent and the Lenders (or any
of their respective representatives or independent contractors) in a year.
4.7. Appraisals. Agent may, in its sole discretion, exercised in a commercially
reasonable manner, at any time after the Closing Date and from time to time, engage the services
of an independent appraisal firm or firms of reputable standing, satisfactory to Agent, for the
purpose of appraising the then current values of Loan Parties’ assets. Absent the occurrence and
continuance of an Event of Default at such time, Agent shall consult with Loan Parties as to the
identity of any such firm and shall only conduct one (1) such appraisal at Loan Parties’ expense in
any fiscal year. In the event the value of Loan Parties’ Inventory, as so determined pursuant to
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such appraisal, is less than anticipated by Agent or Lenders, such that the Revolving Advances are
in excess of such Advances permitted hereunder, then promptly upon Agent’s demand for same,
Loan Parties shall make mandatory prepayments of the then outstanding Revolving Advances so
as to eliminate the excess Advances. Following the occurrence of an Event of Default, Agent may
conduct an appraisal or engage the services of an independent appraisal firm or firms to conduct
an appraisal of the Borrowers’ trademarks at Loan Parties’ expense. In the event that the
outstanding principal amount of the Term Loan exceeds fifty percent (50%) of the orderly
liquidation value of CCA’s trademarks, trade names and assumed names, as so determined
pursuant to an appraisal, then promptly upon Agent’s demand for same, Loan Parties shall make a
mandatory prepayment of the Term Loan in an amount necessary to make the outstanding principal
amount of the Term Loan equal to or less than fifty percent (50%) of the aggregate orderly
liquidation value of CCA’s trademarks, trade names and assumed names. Such prepayment will
be applied to the Term Loan in the inverse order of maturities thereof.
4.8. Receivables; Deposit Accounts and Securities Accounts.
(a) Each of the Receivables shall be a bona fide and valid account representing
a bona fide indebtedness incurred by the Customer therein named, for a fixed sum as set forth in
the invoice relating thereto (provided immaterial or unintentional invoice errors shall not be
deemed to be a breach hereof) with respect to an absolute sale or lease and delivery of goods upon
stated terms of a Loan Party, or work, labor or services theretofore rendered by a Loan Party as of
the date each Receivable is created. Same shall be due and owing in accordance with the applicable
Loan Party’s standard terms of sale without dispute, setoff or counterclaim except as may be stated
on the accounts receivable schedules delivered by Loan Parties to Agent.
(b) Each Customer, to the best of each Loan Party’s knowledge, as of the date
each Receivable is created, is and will be solvent and able to pay all Receivables on which the
Customer is obligated in full when due. With respect to such Customers of any Loan Party who
are not solvent, such Loan Party has set up on its books and in its financial records bad debt
reserves adequate to cover such Receivables.
(c) Each Loan Party’s chief executive office is located as set forth on Schedule
4.4(b)(iii). Until written notice is given to Agent by Borrowing Agent of any other office at which
any Loan Party keeps its records pertaining to Receivables, all such records shall be kept at such
executive office.
(d) Loan Parties shall instruct their Customers to deliver all remittances upon
Receivables (whether paid by check or by wire transfer of funds) to such Blocked Account(s)
and/or Depository Accounts (and any associated lockboxes) as Agent shall designate from time to
time as contemplated by Section 4.8(h) or as otherwise agreed to from time to time by Agent.
Notwithstanding the foregoing, to the extent any Loan Party directly receives any remittances upon
Receivables, such Loan Party shall, at such Loan Party’s sole cost and expense, but on Agent’s
behalf and for Agent’s account, collect as Agent’s property and in trust for Agent all amounts
received on Receivables, and shall not commingle such collections with any Loan Party’s funds
or use the same except to pay Obligations, and shall as soon as possible and in any event no later
than one (1) Business Day after the receipt thereof (i) in the case of remittances paid by check,
deposit all such remittances in their original form (after supplying any necessary endorsements)
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and (ii) in the case of remittances paid by wire transfer of funds, transfer all such remittances, in
each case, into such Blocked Accounts(s) and/or Depository Account(s). Each Loan Party shall
deposit in the Blocked Account and/or Depository Account or, upon request by Agent, deliver to
Agent, in original form and on the date of receipt thereof, all checks, drafts, notes, money orders,
acceptances, cash and other evidences of Indebtedness.
(e) At any time following the occurrence and during the continuance of an
Event of Default, Agent shall have the right to send notice of the assignment of, and Agent’s
security interest in and Lien on, the Receivables to any and all Customers or any third party holding
or otherwise concerned with any of the Collateral. Thereafter, Agent shall have the sole right to
collect the Receivables, take possession of the Collateral, or both. Agent’s actual collection
expenses, including, but not limited to, stationery and postage, telephone, facsimile, telegraph,
secretarial and clerical expenses and the salaries of any collection personnel used for collection,
may be charged to Borrowers’ Account and added to the Obligations.
(f) Agent shall have the right to receive, endorse, assign and/or deliver in the
name of Agent or any Loan Party any and all checks, drafts and other instruments for the payment
of money relating to the Receivables, and each Loan Party hereby waives notice of presentment,
protest and non-payment of any instrument so endorsed. Each Loan Party hereby constitutes Agent
or Agent’s designee as such Loan Party’s attorney with power (i) at any time: (A) to endorse such
Loan Party’s name upon any notes, acceptances, checks, drafts, money orders or other evidences
of payment or Collateral; (B) to sign such Loan Party’s name on any invoice or ▇▇▇▇ of lading
relating to any of the Receivables, drafts against Customers, assignments and verifications of
Receivables; (C) to send verifications of Receivables to any Customer; (D) to sign such Loan
Party’s name on all financing statements or any other documents or instruments deemed necessary
or appropriate by Agent to preserve, protect, or perfect Agent’s interest in the Collateral and to file
same; and (E) to receive, open and dispose of all mail addressed to any Loan Party at any post
office box/lockbox maintained by Agent for Loan Parties or at any other business premises of
Agent; and (ii) at any time following the occurrence of a Default or an Event of Default: (A) to
demand payment of the Receivables; (B) to enforce payment of the Receivables by legal
proceedings or otherwise; (C) to exercise all of such Loan Party’s rights and remedies with respect
to the collection of the Receivables and any other Collateral; (D) to ▇▇▇ upon or otherwise collect,
extend the time of payment of, settle, adjust, compromise, extend or renew the Receivables; (E) to
settle, adjust or compromise any legal proceedings brought to collect Receivables; (F) to prepare,
file and sign such Loan Party’s name on a proof of claim in bankruptcy or similar document against
any Customer; (G) to prepare, file and sign such Loan Party’s name on any notice of Lien,
assignment or satisfaction of Lien or similar document in connection with the Receivables; (H) to
accept the return of goods represented by any of the Receivables; (I) to change the address for
delivery of mail addressed to any Loan Party to such address as Agent may designate; and (J) to
do all other acts and things necessary to carry out this Agreement. All acts of said attorney or
designee are hereby ratified and approved, and said attorney or designee shall not be liable for any
acts of omission or commission nor for any error of judgment or mistake of fact or of law, unless
done maliciously or with gross (not mere) negligence (as determined by a court of competent
jurisdiction in a final non-appealable judgment); this power being coupled with an interest is
irrevocable while any of the Obligations remain unpaid.
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(g) Neither Agent nor any Lender shall, under any circumstances or in any
event whatsoever, have any liability for any error or omission or delay of any kind occurring in
the settlement, collection or payment of any of the Receivables or any instrument received in
payment thereof, or for any damage resulting therefrom.
(h) All proceeds of Collateral shall be deposited by Loan Parties into either (i)
a lockbox account, dominion account or such other “blocked account” (“Blocked Accounts”)
established at a bank or banks (each such bank, a “Blocked Account Bank”) pursuant to an
arrangement with such Blocked Account Bank as may be acceptable to Agent or (ii) depository
accounts (“Depository Accounts”) established at Agent for the deposit of such proceeds. Each
applicable Loan Party, Agent and each Blocked Account Bank shall enter into a deposit account
control agreement in form and substance satisfactory to Agent that is sufficient to give Agent
“control” (for purposes of Articles 8 and 9 of the Uniform Commercial Code) over such account
and which directs such Blocked Account Bank to transfer such funds so deposited on a daily basis
to Agent, either to any account maintained by Agent at said Blocked Account Bank or by wire
transfer to appropriate account(s) at Agent. All funds deposited in such Blocked Accounts or
Depository Accounts shall immediately become subject to the security interest of Agent for its
own benefit and the ratable benefit of Issuer, Lenders and all other holders of the Obligations, and
Borrowing Agent shall obtain the agreement by such Blocked Account Bank to waive any offset
rights against the funds so deposited. Neither Agent nor any Lender assumes any responsibility
for such blocked account arrangement, including any claim of accord and satisfaction or release
with respect to deposits accepted by any Blocked Account Bank thereunder. Following the
occurrence and the continuation of an Event of Default, Agent shall apply all funds received by it
from the Blocked Accounts and/or Depository Accounts to the satisfaction of the Obligations
(including the cash collateralization of the Letters of Credit) in such order as Agent shall determine
in its sole discretion. In the absence of any Event of Default, Agent shall apply all such funds
representing collection of Receivables first to the prepayment of the principal amount of the Swing
Loans, if any, and then to the Revolving Advances, if any. Notwithstanding anything to the
contrary in this Agreement, funds representing collection of Receivables may be applied to the
prepayment of the Term Loan only if an Event of Default has occurred and is continuing.
(i) No Loan Party will, without Agent’s consent, compromise or adjust any
Receivables (or extend the time for payment thereof) or accept any returns of merchandise or grant
any additional discounts, allowances or credits thereon except for those compromises, adjustments,
returns, discounts, credits and allowances as have been heretofore customary in the Ordinary
Course of Business of such Loan Party.
(j) All deposit accounts (including all Blocked Accounts and Depository
Accounts), securities accounts and investment accounts of each Loan Party and its Subsidiaries as
of the Closing Date are set forth on Schedule 4.8(j). No Loan Party shall open any new deposit
account, securities account or investment account unless (i) Loan Parties shall have given at least
thirty (30) days prior written notice to Agent and (ii) if such account is to be maintained with a
bank, depository institution or securities intermediary that is not the Agent, such bank, depository
institution or securities intermediary, each applicable Loan Party and Agent shall first have entered
into an account control agreement in form and substance satisfactory to Agent sufficient to give
Agent “control” (for purposes of Articles 8 and 9 of the Uniform Commercial Code) over such
account.
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4.9. Inventory. To the extent Inventory held for sale or lease has been produced by any
Loan Party, it has been and will be produced by such Loan Party in accordance with the Federal
Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder.
4.10. Maintenance of Equipment. The equipment shall be maintained in good operating
condition and repair (reasonable wear and tear excepted) and all necessary replacements of and
repairs thereto shall be made so that the value and operating efficiency of the equipment shall be
maintained and preserved. No Loan Party shall use or operate the equipment in violation of any
law, statute, ordinance, code, rule or regulation.
4.11. Exculpation of Liability. Nothing herein contained shall be construed to constitute
Agent or any Lender as any Loan Party’s agent for any purpose whatsoever, nor shall Agent or
any Lender be responsible or liable for any shortage, discrepancy, damage, loss or destruction of
any part of the Collateral wherever the same may be located and regardless of the cause thereof.
Neither Agent nor any Lender, whether by anything herein or in any assignment or otherwise,
assume any of any Loan Party’s obligations under any contract or agreement assigned to Agent or
such Lender, and neither Agent nor any Lender shall be responsible in any way for the performance
by any Loan Party of any of the terms and conditions thereof.
4.12. Financing Statements. Except as respects the financing statements filed by Agent,
financing statements described on Schedule 1.2, and financing statements filed in connection with
Permitted Encumbrances, no financing statement covering any of the Collateral or any proceeds
thereof is or will be on file in any public office.
V. REPRESENTATIONS AND WARRANTIES.
Each Loan Party represents and warrants as follows:
5.1. Authority. Each Loan Party has full power, authority and legal right to enter into
this Agreement and the Other Documents to which it is a party and to perform all its respective
Obligations hereunder and thereunder. This Agreement and the Other Documents to which it is a
party have been duly executed and delivered by each Loan Party, and this Agreement and the Other
Documents to which it is a party constitute the legal, valid and binding obligation of such Loan
Party enforceable in accordance with their terms, except as such enforceability may be limited by
any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law. The execution, delivery and performance of this Agreement and
of the Other Documents to which it is a party (a) are within such Loan Party’s corporate or
company powers, as applicable, (b) have been duly authorized by all necessary corporate or
company action, as applicable, (c) are not in contravention of law or the terms of such Loan Party’s
Organizational Documents or to the conduct of such Loan Party’s business or of any Material
Contract or undertaking to which such Loan Party is a party or by which such Loan Party is bound,
(d) will not conflict with or violate any law or regulation in any material respect, or any judgment,
order or decree of any Governmental Body, (e) will not require the Consent of any Governmental
Body, any party to a Material Contract or any other Person, except those Consents set forth on
Schedule 5.1 hereto, all of which will have been duly obtained, made or compiled prior to the
Closing Date and which are in full force and effect and (f) will not conflict with, nor result in any
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breach in any of the provisions of or constitute a default under or result in the creation of any Lien
except Permitted Encumbrances upon any asset of such Loan Party under the provisions of any
agreement, instrument, or other document to which such Loan Party is a party or by which it or its
property is a party or by which it may be bound.
5.2. Formation and Qualification.
(a) Each Loan Party is duly incorporated or formed, as applicable, and in good
standing under the laws of the state listed on Schedule 5.2(a) and is qualified to do business and is
in good standing in the states listed on Schedule 5.2(a) which constitute all states in which
qualification and good standing are necessary for such Loan Party to conduct its business and own
its property and where the failure to so qualify could reasonably be expected to have a Material
Adverse Effect on such Loan Party. Each Loan Party has delivered to Agent true and complete
copies of its Organizational Documents and will promptly notify Agent of any amendment or
changes thereto.
(b) The only Subsidiaries of each Loan Party are listed on Schedule 5.2(b).
5.3. Survival of Representations and Warranties. All representations and warranties of
such Loan Party contained in this Agreement and the Other Documents to which it is a party shall
be true at the time of such Loan Party’s execution of this Agreement and the Other Documents to
which it is a party, and shall survive the execution, delivery and acceptance thereof by the parties
thereto and the closing of the transactions described therein or related thereto.
5.4. Tax Returns. Each Loan Party’s federal tax identification number is set forth on
Schedule 5.4. Each Loan Party has filed all federal, state and local tax returns and other reports
each is required by law (other than filings and reports that are de minimus to the business of the
Loan Parties) to file and has paid all taxes, assessments, fees and other governmental charges (other
than payments, individually, not in excess of $25,000) that are due and payable, except as are being
Properly Contested. The provision for taxes on the books of each Loan Party is adequate for all
years not closed by applicable statutes, and for its current fiscal year, and no Loan Party has any
knowledge of any deficiency or additional assessment in connection therewith not provided for on
its books (other than deficiencies or assessments, individually, not in excess of $25,000).
5.5. Financial Statements.
(a) The balance sheet projections and projected income statement of Loan
Parties on a consolidating and consolidated basis delivered to the Agent, a copy of which is
annexed hereto as Exhibit 5.5(a) (the “Projections”), was prepared by the Chief Financial Officer
of Borrowing Agent, are based on underlying assumptions which provide a reasonable basis for
the projections contained therein and reflect Loan Parties’ judgment based on present
circumstances of the most likely set of conditions and course of action for the projected period.
(b) The consolidated and consolidating balance sheets of Loan Parties, and such
other Persons described therein, as of November 30, 2017, and the related statements of income,
changes in stockholder’s equity, and changes in cash flow for the period ended on such date, all
accompanied by reports thereon containing opinions without qualification by independent certified
public accountants, copies of which have been delivered to Agent, have been prepared in
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accordance with GAAP, consistently applied (except for changes in application to which such
accountants concur and present fairly the financial position of Loan Parties at such date and the
results of their operations for such period. Since November 30, 2017, there has been no change in
the condition, financial or otherwise, of Loan Parties as shown on the consolidated balance sheet
as of such date and no change in the aggregate value of machinery, equipment and Real Property
owned by Loan Parties, except changes in the Ordinary Course of Business, none of which
individually or in the aggregate has been materially adverse.
5.6. Entity Names. No Loan Party has been known by any other company or corporate
name, as applicable, in the past five (5) years and does not sell Inventory under any other name
except as set forth on Schedule 5.6, nor has any Loan Party been the surviving corporation or
company, as applicable, of a merger or consolidation or acquired all or substantially all of the
assets of any Person during the preceding five (5) years.
5.7. O.S.H.A. Environmental Compliance; Flood Insurance.
(a) Except as set forth on Schedule 5.7 hereto, each Loan Party is in compliance
with, and its facilities, business, assets, property, leaseholds, Real Property and Equipment are in
compliance with the Federal Occupational Safety and Health Act, and Environmental Laws and
there are no outstanding citations, notices or orders of non-compliance issued to any Loan Party
or relating to its business, assets, property, leaseholds or Equipment under any such laws, rules or
regulations.
(b) Except as set forth on Schedule 5.7 hereto, each Loan Party has been issued
all required federal, state and local licenses, certificates or permits (collectively, “Approvals”)
relating to all applicable Environmental Laws and all such Approvals are current and in full force
and effect.
(c) Except as set forth on Schedule 5.7: (i) there have been no releases, spills,
discharges, leaks or disposal (collectively referred to as “Releases”) of Hazardous Materials at,
upon, under or migrating from or onto any Real Property owned, leased or occupied by any Loan
Party, except for those Releases which are in full compliance with Environmental Laws; (ii) there
are no underground storage tanks or polychlorinated biphenyls on any Real Property owned, leased
or occupied by any Loan Party, except for such underground storage tanks or polychlorinated
biphenyls that are present in compliance with Environmental Laws; (iii) the Real Property
including any premises owned, leased or occupied by any Loan Party has never been used by any
Loan Party to dispose of Hazardous Materials, except as authorized by Environmental Laws; and
(iv) no Hazardous Materials are managed by any Loan Party on any Real Property including any
premises owned, leased or occupied by any Loan Party, excepting such quantities as are managed
in accordance with all applicable manufacturer’s instructions and compliance with Environmental
Laws and as are necessary for the operation of the commercial business of any Loan Party or of
its tenants.
(d) All Real Property owned by Loan Parties is insured pursuant to policies and
other bonds which are valid and in full force and effect and which provide adequate coverage from
reputable and financially sound insurers in amounts sufficient to insure the assets and risks of each
such Loan Party in accordance with prudent business practice in the industry of such Loan Party.
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Each Loan Party has taken all actions required under the Flood Laws and/or requested by Agent
to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the
Collateral, including, but not limited to, providing Agent with the address and/or GPS coordinates
of each structure located upon any Real Property that will be subject to a mortgage in favor of
Agent, for the benefit of Lenders, and, to the extent required, obtaining flood insurance for such
property, structures and contents prior to such property, structures and contents becoming
Collateral.
5.8. Solvency; No Litigation, Violation, Indebtedness or Default; ERISA Compliance.
(a) (i) After giving effect to the Transactions, each Loan Party will be solvent,
able to pay its debts as they mature, will have capital sufficient to carry on its business and all
businesses in which it is about to engage, (ii) as of the Closing Date, the fair present saleable value
of its assets, calculated on a going concern basis, is in excess of the amount of its liabilities, and
(iii) subsequent to the Closing Date, the fair saleable value of its assets (calculated on a going
concern basis) will be in excess of the amount of its liabilities.
(b) Except as disclosed in Schedule 5.8(b)(i), no Loan Party has any pending
or, to its knowledge, threatened litigation, arbitration, actions or proceedings against them. No
Loan Party has any outstanding Indebtedness other than the Obligations, except for (i)
Indebtedness disclosed in Schedule 5.8(b)(ii) and (ii) Indebtedness otherwise permitted under
Section 7.8 hereof.
(c) No Loan Party is in violation of any applicable statute, law, rule, regulation
or ordinance in any respect which could reasonably be expected to have a Material Adverse Effect,
nor is any Loan Party in violation of any order of any court, Governmental Body or arbitration
board or tribunal. Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other federal or state laws.
(d) No Loan Party or any member of the Controlled Group maintains or is
required to contribute to any Plan other than those listed on Schedule 5.8(d) hereto. (i) Each Loan
Party and each member of the Controlled Group has met all applicable minimum funding
requirements under Section 302 of ERISA and Section 412 of the Code in respect of each Plan,
and each Plan is in compliance with Sections 412, 430 and 436 of the Code and Sections 206(g),
302 and 303 of ERISA, without regard to waivers and variances; (ii) each Plan which is intended
to be a qualified plan under Section 401(a) of the Code as currently in effect has been determined
by the Internal Revenue Service to be qualified under Section 401(a) of the Code and the trust
related thereto is exempt from federal income tax under Section 501(a) of the Code or an
application for such a determination is currently being processed by the Internal Revenue Code;
(iii) neither any Loan Party nor any member of the Controlled Group has incurred any liability to
the PBGC other than for the payment of premiums, and there are no premium payments which
have become due which are unpaid; (iv) no Plan has been terminated by the plan administrator
thereof nor by the PBGC, and there is no occurrence which would cause the PBGC to institute
proceedings under Title IV of ERISA to terminate any Plan; (v) the current value of the assets of
each Plan exceeds the present value of the accrued benefits and other liabilities of such Plan and
neither any Loan Party nor any member of the Controlled Group knows of any facts or
circumstances which would materially change the value of such assets and accrued benefits and
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other liabilities; (vi) neither any Loan Party nor any member of the Controlled Group has breached
any of the responsibilities, obligations or duties imposed on it by ERISA with respect to any Plan;
(vii) neither any Loan Party nor any member of a Controlled Group has incurred any liability for
any excise tax arising under Section 4971, 4972 or 4980B of the Code, and no fact exists which
could give rise to any such liability; (viii) neither any Loan Party nor any member of the Controlled
Group nor any fiduciary of, nor any trustee to, any Plan, has engaged in a “prohibited transaction”
described in Section 406 of the ERISA or Section 4975 of the Code nor taken any action which
would constitute or result in a Termination Event with respect to any such Plan which is subject to
ERISA; (ix) no Termination Event has occurred or is reasonably expected to occur; (x) there exists
no event described in Section 4043 of ERISA, for which the thirty (30) day notice period has not
been waived; (xi) neither any Loan Party nor any member of the Controlled Group has engaged in
a transaction that could be subject to Section 4069 or 4212(c) of ERISA; (xii) neither any Loan
Party nor any member of the Controlled Group maintains or is required to contribute to any Plan
which provides health, accident or life insurance benefits to former employees, their spouses or
dependents, other than in accordance with Section 4980B of the Code; (xiii) neither any Loan Party
nor any member of the Controlled Group has withdrawn, completely or partially, within the
meaning of Section 4203 or 4205 of ERISA, from any Multiemployer Plan so as to incur liability
under the Multiemployer Pension Plan Amendments Act of 1980 and there exists no fact which
would reasonably be expected to result in any such liability; and (xiv) no Plan fiduciary (as defined
in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or for any failure in
connection with the administration or investment of the assets of a Plan.
5.9. Patents, Trademarks, Copyrights and Licenses. All Intellectual Property owned or
utilized by any Loan Party: (i) is set forth on Schedule 5.9; (ii) with respect to Intellectual Property
owned by any Loan Party, is valid and has been duly registered or filed with all appropriate
Governmental Bodies; and (iii) constitutes all of the intellectual property rights which are
necessary for the operation of its business. There is no objection to, pending challenge to the
validity of, or proceeding by any Governmental Body to suspend, revoke, terminate or adversely
modify, any such Intellectual Property owned by any Loan Party (or, to the knowledge of the Loan
Parties, the Intellectual Property that is utilized pursuant to a License Agreement) and no Loan
Party is aware of any grounds for any challenge or proceedings, except as set forth in Schedule 5.9
hereto. All Intellectual Property owned or utilized by any Loan Party consists of original material
or property developed by such Loan Party or was lawfully acquired by such Loan Party from the
proper and lawful owner thereof. All Intellectual Property owned by any Loan Party has been
maintained so as to preserve the value thereof from the date of creation or acquisition thereof.
5.10. Licenses and Permits. Except as set forth in Schedule 5.10, each Loan Party (a) is
in compliance with and (b) has procured and is now in possession of, all material licenses or
permits required by any applicable federal, state or local law, rule or regulation for the operation
of its business in each jurisdiction wherein it is now conducting or proposes to conduct business
and where the failure to procure such licenses or permits could reasonably be expected to have a
Material Adverse Effect.
5.11. Default of Indebtedness. No Loan Party is in default in the payment of the principal
of or interest on any Indebtedness or under any instrument or agreement under or subject to which
any Indebtedness has been issued and no event has occurred under the provisions of any such
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instrument or agreement which with or without the lapse of time or the giving of notice, or both,
constitutes or would constitute an event of default thereunder.
5.12. No Default. No Loan Party is in default in the payment or performance of any of
its Material Contracts and no Default or Event of Default has occurred.
5.13. No Burdensome Restrictions. No Loan Party is party to any contract or agreement
the performance of which could reasonably be expected to have a Material Adverse Effect. Each
Loan Party has heretofore delivered to Agent true and complete copies of all Material Contracts to
which it is a party or to which it or any of its properties is subject. No Loan Party has agreed or
consented to cause or permit in the future (upon the happening of a contingency or otherwise) any
of its property, whether now owned or hereafter acquired, to be subject to a Lien which is not a
Permitted Encumbrance.
5.14. No Labor Disputes. No Loan Party is involved in any labor dispute; there are no
strikes or walkouts or union organization of any Loan Party’s employees threatened or in existence
and no labor contract is scheduled to expire during the Term other than as set forth on Schedule
5.14 hereto.
5.15. Margin Regulations. No Loan Party is engaged, nor will it engage, principally or
as one of its important activities, in the business of extending credit for the purpose of “purchasing”
or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect. No part of the proceeds of any Advance will be used for “purchasing” or
“carrying” “margin stock” as defined in Regulation U of such Board of Governors.
5.16. Investment Company Act. No Loan Party is an “investment company” registered
or required to be registered under the Investment Company Act of 1940, as amended, nor is it
controlled by such a company.
5.17. Disclosure. No representation or warranty made by any Loan Party in this
Agreement or in any financial statement, report, certificate or any other document furnished in
connection herewith or therewith, taken as a whole, contains any material misstatement of material
fact or omits to state any fact necessary to make the statements herein or therein, in the light of the
circumstances under which they were made, not misleading, in each case as of the date such
information is provided. There is no fact known to any Loan Party or which reasonably should be
known to such Loan Party which such Loan Party has not disclosed to Agent in writing with respect
to the transactions contemplated by this Agreement which could reasonably be expected to have a
Material Adverse Effect.
5.18. Delivery of the ▇▇▇▇▇▇▇ Documents and the OHL Documents. Agent has received
complete copies of the ▇▇▇▇▇▇▇ Documents and the OHL Documents and all amendments thereto,
waivers relating thereto and other side letters or agreements affecting the terms thereof. None of
such documents and agreements has been amended or supplemented, nor have any of the
provisions thereof been waived, except pursuant to a written agreement or instrument which has
heretofore been delivered to Agent.
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5.19. Delivery of the Advantage Documents and CaseStack Documents . Agent has
received complete copies of the Advantage Documents and CaseStack Documents and all
amendments thereto, waivers relating thereto and other side letters or agreements affecting the
terms thereof. None of such documents and agreements has been amended or supplemented, nor
have any of the provisions thereof been waived, except pursuant to a written agreement or
instrument which has heretofore been delivered to Agent. Each of the representations made by
each Person party thereto is true and correct in all respects.
5.20. Swaps. No Loan Party is a party to, nor will it be a party to, any swap agreement
whereby such Loan Party has agreed or will agree to swap interest rates or currencies unless same
provides that damages upon termination following an event of default thereunder are payable on
an unlimited “two-way basis” without regard to fault on the part of either party.
5.21. Business and Property of Loan Parties. Upon and after the Closing Date, Loan
Parties do not propose to engage in any business other than the sale of products in health-and-
beauty aids, over the counter drug and remedies and cosmeceutical categories and activities
necessary to conduct the foregoing. On the Closing Date, each Loan Party will own all the property
and possess all of the rights and Consents necessary for the conduct of the business of such Loan
Party.
5.22. Ineligible Securities. Loan Parties do not intend to use and shall not use any portion
of the proceeds of the Advances, directly or indirectly, to purchase during the underwriting period,
or for 30 days thereafter, Ineligible Securities being underwritten by a securities Affiliate of Agent
or any Lender.
5.23. Federal Securities Laws. No Loan Party (i), other than CCA, is required to file
periodic reports under the Exchange Act, (ii) other than CCA, has any securities registered under
the Exchange Act or (iii) has filed a registration statement that has not yet become effective under
the Securities Act.
5.24. Equity Interests. The legal and beneficial holder of Equity Interests of each direct
and indirect subsidiary of CCA, as of the Closing Date, are set forth on Schedule 5.24(a) hereto.
All of the Equity Interests of each Loan Party have been duly and validly authorized and issued
and are fully paid and non-assessable and have been sold and delivered to the holders hereof in
compliance with, or under valid exemption from, all federal and state laws and the rules and
regulations of each Governmental Body governing the sale and delivery of securities. Except for
the rights and obligations set forth on Schedule 5.24(b), there are no subscriptions, warrants,
options, calls, commitments, rights or agreement by which any direct and indirect subsidiary of
CCA or any of the shareholders of any direct and indirect subsidiary of CCA is bound relating to
the issuance, transfer, voting or redemption of shares of the Equity Interests of any direct or indirect
subsidiary of CCA or any pre-emptive rights held by any Person with respect to the Equity Interests
of any direct or indirect subsidiary of CCA. Except as set forth on Schedule 5.24(c), no direct or
indirect subsidiary of CCA has issued any securities convertible into or exchangeable for shares
of its Equity Interests or any options, warrants or other rights to acquire such shares or securities
convertible into or exchangeable for such shares.
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5.25. Commercial Tort Claims. No Loan Party has any commercial tort claims in favor
of such Loan Party except as set forth on Schedule 5.25 hereto.
5.26. Letter of Credit Rights. As of the Closing Date, no Loan Party has any letter of
credit rights except as set forth on Schedule 5.26 hereto.
5.27. Material Contracts. Schedule 5.27 sets forth all Material Contracts of the Loan
Parties. All Material Contracts are in full force and effect and no material defaults currently exist
thereunder.
5.28. Inactive Subsidiaries. Other than CCA, no Loan Party or Subsidiary of a Loan
engages in any business or owns any assets or has any liabilities other than those activities that are
incidental to (x) the maintenance of its corporate existence in compliance with Applicable Law
and (y) legal, Tax and accounting matters in connection with the foregoing activities.
VI. AFFIRMATIVE COVENANTS.
Each Loan Party shall, until payment in full of the Obligations and termination of this
Agreement:
6.1. Compliance with Laws. Comply with all Applicable Laws with respect to the
Collateral or any part thereof or to the operation of such Loan Party’s business, the non-compliance
with which could reasonably be expected to have a Material Adverse Effect (except to the extent
any separate provision of this Agreement shall expressly require compliance with any particular
Applicable Law(s) pursuant to another standard). Each Loan Party may, however, contest or
dispute any Applicable Laws in any reasonable manner, provided that any related Lien is inchoate
or stayed and sufficient reserves are established to the reasonable satisfaction of Agent to protect
Agent’s Lien on or security interest in the Collateral.
6.2. Conduct of Business and Maintenance of Existence and Assets. (a) Conduct
continuously and operate actively its business according to good business practices and maintain
all of its properties useful or necessary in its business in good working order and condition
(reasonable wear and tear excepted and except as may be disposed of in accordance with the terms
of this Agreement), including all Intellectual Property owned by any Loan Party, and take all
reasonable actions necessary to enforce and protect the validity of any intellectual property right
or other right included in the Collateral; (b) keep in full force and effect its existence and comply
in all material respects with the laws and regulations governing the conduct of its business where
the failure to do so could reasonably be expected to have a Material Adverse Effect; and (c) make
all such reports and pay all such franchise and other taxes and license fees and do all such other
acts and things as may be lawfully required to maintain its rights, licenses, leases, powers and
franchises under the laws of the United States or any political subdivision thereof where the failure
to do so could reasonably be expected to have a Material Adverse Effect.
6.3. Books and Records. Keep proper books of record and account in which full, true
and correct entries will be made of all financial dealings or transactions of or in relation to its
business and affairs (including without limitation accruals for taxes, assessments, Charges, levies
and claims, allowances against doubtful Receivables and accruals for depreciation, obsolescence
or amortization of assets), all in accordance with, or as required by, GAAP consistently applied in
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the opinion of such independent public accountant as shall then be regularly engaged by Loan
Parties.
6.4 Payment of Taxes. Pay, when due, all material taxes, assessments and other
Charges lawfully levied or assessed upon such Loan Party or any of the Collateral, including real
and personal property taxes, assessments and Charges and all franchise, income, employment,
social security benefits, withholding, and sales taxes. If any tax by any Governmental Body is or
may be imposed on or as a result of any transaction between any Loan Party and Agent or any
Lender which Agent or any Lender may be required to withhold or pay or if any taxes, assessments,
or other Charges remain unpaid after the date fixed for their payment, in each case other than
Excluded Taxes, or if any claim shall be made which, in Agent’s or any Lender’s opinion, is
reasonably likely to create a valid Lien on the Collateral, Agent may without notice to Loan Parties
pay the taxes, assessments or other Charges and each Loan Party hereby indemnifies and holds
Agent and each Lender harmless in respect thereof. Agent will not pay any taxes or Charges to
the extent that any applicable Loan Party has Properly Contested those taxes or Charges. The
amount of any payment by Agent under this Section 6.4 shall be charged to Borrowers’ Account
as a Revolving Advance maintained as a Domestic Rate Loan and added to the Obligations and,
until Loan Parties shall furnish Agent with an indemnity therefor (or supply Agent with evidence
satisfactory to Agent that due provision for the payment thereof has been made), Agent may hold
without interest any balance standing to Loan Parties’ credit and Agent shall retain its security
interest in and Lien on any and all Collateral held by Agent.
6.5. Fixed Charge Coverage Ratio. Cause to be maintained as of the end of each fiscal
quarter (commencing with the fiscal quarter ending May 31, 2018), a Fixed Charge Coverage Ratio
of not less than 1.10 to 1.0, measured on a rolling four (4) quarter basis; provided that
notwithstanding the foregoing, (i) for the period ending May 31, 2018, the Fixed Charge Coverage
Ratio shall be tested for the fiscal quarter then ending, (ii) for the period ending August 31, 2018,
the Fixed Charge Coverage Ratio shall be tested for the two (2) fiscal quarter period then ending
and (iii) for the period ending November 30, 2018, the Fixed Charge Coverage Ratio shall be tested
for the three (3) fiscal quarter period then ending.
6.6. Insurance.
(a) (i) Keep all its insurable properties and properties in which such Loan Party
has an interest insured against the hazards of fire, flood, sprinkler leakage, those hazards covered
by extended coverage insurance and such other hazards, and for such amounts, as is customary in
the case of companies engaged in businesses similar to such Loan Party’s including business
interruption insurance; (ii) maintain an insurance policy in such amounts as is customary in the
case of companies engaged in businesses similar to such Loan Party insuring against larceny,
embezzlement or other criminal misappropriation of insured’s officers and employees who may
either singly or jointly with others at any time have access to the assets or funds of such Loan Party
either directly or through authority to draw upon such funds or to direct generally the disposition
of such assets; (iii) maintain public and product liability insurance against claims for personal
injury, death or property damage suffered by others; (iv) maintain all such worker’s compensation
or similar insurance as may be required under the laws of any state or jurisdiction in which such
Loan Party is engaged in business; and (v) furnish Agent with (A) copies of all policies in effect
on the Closing Date, (B) evidence of the maintenance of such policies by the renewal thereof prior
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to any expiration date and copies of such renewal policies upon receipt, and (C) appropriate loss
payable endorsements in form and substance satisfactory to Agent, naming Agent as an additional
insured and mortgagee and/or lender loss payee (as applicable) as its interests may appear with
respect to all insurance coverage referred to in clauses (i), and (iii) above, and providing (I) that
all proceeds thereunder shall be payable to Agent, (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 (III) that such
policy and loss payable clauses may not be cancelled, amended or terminated unless at least thirty
(30) days prior written notice is given to Agent (or in the case of non-payment, at least ten (10)
days prior written notice). In the event of any loss thereunder, the carriers named therein hereby
are directed by Agent and the applicable Loan Party to make payment for such loss to Agent and
not to such Loan Party and Agent jointly. If any insurance losses are paid by check, draft or other
instrument payable to any Loan Party and Agent jointly, Agent may endorse such Loan Party’s
name thereon and do such other things as Agent may deem advisable to reduce the same to cash.
(b) Each Loan Party shall take all actions required under the Flood Laws and/or
requested by Agent to assist in ensuring that each Lender is in compliance with the Flood Laws
applicable to the Collateral, including, but not limited to, providing Agent with the address and/or
GPS coordinates of each structure on any real property that will be subject to a mortgage in favor
of Agent, for the benefit of Lenders, and, to the extent required, obtaining flood insurance for such
property, structures and contents prior to such property, structures and contents becoming
Collateral, and thereafter maintaining such flood insurance in full force and effect for so long as
required by the Flood Laws.
(c) Agent shall have a security interest in claims under insurance coverage
referred to in Sections 6.6(a)(i) and (iii) and 6.6(b) above. Following the occurrence and during
the continuation of an Event of Default, Agent is hereby authorized to adjust and compromise
claims under insurance coverage referred to in Sections 6.6(a)(i) and (iii) and 6.6(b) above. All
loss recoveries received by Agent under any such insurance may be applied to the prepayment of
Revolving Advances, if any, and solely if an Event of Default has occurred and is continuing, to
the prepayment of the Term Loan. Any surplus shall be paid by Agent to Loan Parties or applied
as may be otherwise required by law. Any deficiency thereon shall be paid by Loan Parties to
Agent, on demand. Notwithstanding anything herein to the contrary, and subject to the fulfillment
of the conditions set forth below, Agent shall remit to Borrowing Agent insurance proceeds
received by Agent during any calendar year under insurance policies procured and maintained by
Loan Parties which insure Loan Parties’ insurable properties to the extent such insurance proceeds
do not exceed $100,000 in the aggregate during such calendar year or $50,000 per occurrence. In
the event the amount of insurance proceeds received by Agent for any occurrence exceeds $50,000,
then Agent shall not be obligated to remit the insurance proceeds to Borrowing Agent unless
Borrowing Agent shall provide Agent with evidence reasonably satisfactory to Agent that the
insurance proceeds will be used by Loan Parties to repair, replace or restore the insured property
which was the subject of the insurable loss. In the event Borrowing Agent has previously received
(or, after giving effect to any proposed remittance by Agent to Borrowing Agent would receive)
insurance proceeds which equal or exceed $100,000 in the aggregate during any calendar year,
then Agent may, in its sole discretion, either remit the insurance proceeds to Borrowing Agent
upon Borrowing Agent providing Agent with evidence reasonably satisfactory to Agent that the
insurance proceeds will be used by Loan Parties to repair, replace or restore the insured property
which was the subject of the insurable loss, or apply the proceeds to the Obligations, as aforesaid.
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The agreement of Agent to remit insurance proceeds in the manner above provided shall be subject
in each instance to satisfaction of each of the following conditions: (x) no Event of Default or
Default shall then have occurred and be continuing, (y) Loan Parties shall use such insurance
proceeds promptly to repair, replace or restore the insurable property which was the subject of the
insurable loss and for no other purpose, and (z) such remittances shall be made under such
procedures as Agent may establish. If any Loan Party fails to obtain insurance as hereinabove
provided, or to keep the same in force, Agent, if Agent so elects, may obtain such insurance and
pay the premium therefor on behalf of such Loan Party, which payments shall be charged to
Borrowers’ Account and constitute part of the obligations.
6.7. Payment of Indebtedness and Leasehold Obligations. Pay, discharge or otherwise
satisfy (i) at or before maturity (subject, where applicable, to specified grace periods) all its
Indebtedness, subject at all times to any applicable subordination arrangement in favor of Lenders
and (ii) when due its rental obligations under all leases under which it is a tenant, and shall
otherwise comply, in all material respects, with all other terms of such leases and keep them in full
force and effect, in each case under clause (i) and (ii) above, except when the failure to do so could
not reasonably be expected to have a Material Adverse Effect or when the amount or validity
thereof is currently being Properly Contested.
6.8. Environmental Matters.
(a) Ensure that the Real Property and all operations and businesses conducted
thereon are in compliance and remain in compliance with all Environmental Laws and it shall
manage any and all Hazardous Materials on any Real Property in compliance with Environmental
Laws, except when the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(b) All potential violations and violations of Environmental Laws shall be
reviewed with legal counsel to determine any required reporting to applicable Governmental
Bodies and any required corrective actions to address such potential violation or violations.
(c) Respond promptly to any Hazardous Discharge or Environmental
Complaint and take all necessary action in order to safeguard the health of any Person and to avoid
subjecting the Collateral or Real Property to any Lien. If any Loan Party shall fail to respond
promptly to any Hazardous Discharge or Environmental Complaint or any Loan Party shall fail to
comply with any of the requirements of any Environmental Laws, Agent on behalf of Lenders
may, but without the obligation to do so, for the sole purpose of protecting Agent’s interest in the
Collateral: (i) give such notices or (ii) enter onto the Real Property (or authorize third parties to
enter onto the Real Property) and take such actions as Agent (or such third parties as directed by
Agent) deem reasonably necessary or advisable, to remediate, remove, mitigate or otherwise
manage with any such Hazardous Discharge or Environmental Complaint. All reasonable costs
and expenses incurred by Agent and Lenders (or such third parties) in the exercise of any such
rights, including any sums paid in connection with any judicial or administrative investigation or
proceedings, fines and penalties, together with interest thereon from the date expended at the
Default Rate for Domestic Rate Loans constituting Revolving Advances shall be paid upon
demand by Loan Parties, and until paid shall be added to and become a part of the Obligations
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secured by the Liens created by the terms of this Agreement or any other agreement between
Agent, any Lender and any Loan Party.
6.9. Standards of Financial Statements. Cause all financial statements referred to in
Sections 9.7, 9.8, 9.9, 9.10, 9.11, 9.12, and 9.13 to be complete and correct in all material respects
(subject, in the case of interim financial statements, to normal year-end audit adjustments) and to
be prepared in reasonable detail and, solely with respect to Section 9.7 and 9.8, in accordance with
GAAP applied consistently throughout the periods reflected therein (except as disclosed therein
and agreed to by such reporting accountants or officer, as applicable).
6.10. Execution of Supplemental Instruments. Execute and deliver to Agent from time
to time, upon demand, such supplemental agreements, statements, assignments and transfers, or
instructions or documents relating to the Collateral, and such other instruments as Agent may
request, in order that the full intent of this Agreement may be carried into effect.
6.11. Government Receivables. Take all steps necessary to protect Agent’s interest in
the Collateral under the Federal Assignment of Claims Act, the Uniform Commercial Code and
all other applicable state or local statutes or ordinances and deliver to Agent appropriately
endorsed, any instrument or chattel paper connected with any Receivable arising out of any
contract between any Loan Party and the United States, any state or any department, agency or
instrumentality of any of them.
6.12. Membership/Partnership Interests. Designate and shall cause all of their
Subsidiaries to designate (a) their limited liability company membership interests or partnership
interests as the case may be, as securities as contemplated by the definition of “security” in Section
8-102(15) and Section 8-103 of Article 8 of the Uniform Commercial Code, and (b) certificate
such limited liability company membership interests and partnership interests, as applicable.
6.13. Keepwell. If it is a Qualified ECP Loan Party, then jointly and severally, together
with each other Qualified ECP Loan Party, hereby absolutely unconditionally and irrevocably (a)
guarantees the prompt payment and performance of all Swap Obligations owing by each Non-
Qualifying Party (it being understood and agreed that this guarantee is a guaranty of payment and
not of collection), and (b) undertakes to provide such funds or other support as may be needed
from time to time by any Non-Qualifying Party to honor all of such Non-Qualifying Party’s
obligations under this Agreement or any Other Document in respect of Swap Obligations
(provided, however, that each Qualified ECP Loan Party shall only be liable under this Section
6.13 for the maximum amount of such liability that can be hereby incurred without rendering its
obligations under this Section 6.13, or otherwise under this Agreement or any Other Document,
voidable under applicable law, including applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Loan
Party under this Section 6.13 shall remain in full force and effect until payment in full of the
Obligations and termination of this Agreement and the Other Documents. Each Qualified ECP
Loan Party intends that this Section 6.13 constitute, and this Section 6.13 shall be deemed to
constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the
benefit of each other Loan Party and Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the
CEA.
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6.14. Post-Closing Obligations.
(a) Within thirty (30) days of the Closing Date (or such longer period of time
as Agent may agree in its sole discretion), the Loan Parties’ shall have established all of their
Deposit Accounts at Agent or Agent shall have received duly executed agreements establishing
the Blocked Accounts with financial institutions acceptable to Agent for the collection or servicing
of the Receivables and proceeds of the Collateral and Agent shall have entered into control
agreements with the applicable financial institutions in form and substance satisfactory to Agent
with respect to such Blocked Accounts such that Agent shall have “control” (for purposes of
Articles 8 and 9 of the Uniform Commercial Code) over each such account.
(b) Within thirty (30) days of the Closing Date (or such longer period of time
as Agent may agree in its sole discretion), the Loan Parties’ shall have directed each letter of credit
supporting a Receivable to a “controlled” account (for purposes of Articles 8 and 9 of the Uniform
Commercial Code) maintained at Agent.
(c) Within thirty (30) days of the Closing Date (or such longer period of time
as Agent may agree in its sole discretion), the Loan Parties shall have transitioned from ▇▇▇▇▇▇▇
to Advantage and from OHL to CaseStack.
(d) Within thirty (30) days of the Closing Date (or such longer period of time
as Agent may agree in its sole discretion), the Loan Parties’ shall have delivered to Agent lender
loss payable endorsements issued by Loan Parties’ insurer naming Agent as a lenders loss payee
with respect to each property insurance policy of Loan Parties and additional insured endorsements
issued by Loan Parties’ insurer naming Agent as an additional insured with respect to each liability
insurance policy of Loan Parties, in each case, in form and substance reasonably satisfactory to
Agent in all respects.
(e) Within sixty (60) days of the Closing Date (or such longer period of time as
Agent may agree in its sole discretion), the Loan Parties’ shall have used commercially reasonable
efforts to obtain a Licensor/Agent Agreement with respect to that certain License Agreement
between Ultimark Products, Inc., as Licensor, and CCA, as licensee, dated April 1, 2017, in form
and substance reasonably satisfactory to Agent in all respects.
(f) Within sixty (60) days of the Closing Date (or such longer period of time as
Agent may agree in its sole discretion), the Loan Parties’ shall have used commercially reasonable
efforts to obtain Lien Waiver Agreements with respect to those locations or places set forth on
Schedule 6.14(d), executed by the applicable landlords in form and substance reasonably
satisfactory to Agent in all respects.
VII. NEGATIVE COVENANTS.
No Loan Party shall, until satisfaction in full of the Obligations and termination of this
Agreement:
7.1. Merger, Consolidation, Acquisition and Sale of Assets.
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(a) Enter into any merger, consolidation or other reorganization with or into
any other Person or acquire all or a substantial portion of the assets or Equity Interests of any
Person or permit any other Person to consolidate with or merge with it, except (i) any Loan Party
may merge, consolidate or reorganize with another Loan Party or acquire the assets or Equity
Interest of another Loan Party so long as such Loan Party provides Agent with ten (10) days prior
written notice of such merger, consolidation or reorganization and delivers all of the relevant
documents evidencing such merger, consolidation or reorganization and (ii) as disclosed on
Schedule 7.1(a).
(b) Sell, lease, transfer or otherwise dispose of any of its properties or assets,
except (i) (a) the sale of Inventory in the Ordinary Course of Business, (b) the sale or disposition
of Obsolete Inventory and (c) the disposition or transfer of obsolete and worn-out equipment in
the Ordinary Course of Business during any fiscal year having an aggregate fair market value of
not more than $100,000 and only to the extent that (x) the proceeds of any such disposition are
used to acquire replacement equipment which is subject to Agent’s first priority security interest
or (y) the proceeds of which are remitted to Agent to be applied pursuant to Section 2.20, (ii) as
disclosed on Schedule 7.1(b), and (iii) any other sales or dispositions expressly permitted by this
Agreement.
7.2. Creation of Liens. Create or suffer to exist any Lien or transfer upon or against any
of its property or assets now owned or hereafter created or acquired, except Permitted
Encumbrances.
7.3. Guarantees. Become liable upon the obligations or liabilities of any Person by
assumption, endorsement or guaranty thereof or otherwise (other than to Lenders) except (a) as
disclosed on Schedule 7.3, (b) guarantees made in the Ordinary Course of Business up to an
aggregate amount of $250,000, (c) guarantees by one or more Loan Party(s) of the Indebtedness
or obligations of any other Loan Party(s) to the extent such Indebtedness or obligations are
permitted to be incurred and/or outstanding pursuant to the provisions of this Agreement and (d)
the endorsement of checks in the Ordinary Course of Business.
7.4. Investments. Purchase or acquire obligations or Equity Interests of, or any other
interest in, any Person, other than Permitted Investments.
7.5. Loans. Make advances, loans or extensions of credit to any Person, including any
Parent, Subsidiary or Affiliate, other than Permitted Loans.
7.6. Capital Expenditures. Contract for, purchase or make any expenditure or
commitments for Capital Expenditures in any fiscal year in an aggregate amount for all Loan
Parties in excess of $250,000.
7.7. Dividends. Declare, pay or make any dividend or distribution on any Equity
Interests of any Loan Party (other than dividends or distributions payable in its stock, or split-ups
or reclassifications of its stock) or apply any of its funds, property or assets to the purchase,
redemption or other retirement of any Equity Interest, or of any options to purchase or acquire any
Equity Interest of any Loan Party other than Permitted Dividends. With respect to tax distributions
permitted pursuant to this Section 7.7, in the event (x) the actual distribution to members made
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pursuant to this Section 7.7 exceeds the actual income tax liability of any member due to such
Loan Party’s status as a limited liability company, or (y) if such Loan Party was a subchapter C
corporation, such Loan Party would be entitled to a refund of income taxes previously paid as a
result of a tax loss during a year in which such Loan Party is a limited liability company, then the
members shall repay such Loan Party the amount of such excess or refund, as the case may be, no
later than the date the annual tax return must be filed by such Loan Party (without giving effect to
any filing extensions). In the event such amounts are not repaid in a timely manner by any member,
then such Loan Party shall not pay or make any distribution with respect to, or purchase, redeem
or retire, any membership interest of such Loan Party held or controlled by, directly or indirectly,
such member until such payment has been made.
7.8. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than
Permitted Indebtedness.
7.9. Nature of Business. Substantially change the nature of the business in which it is
presently engaged, nor except as specifically permitted hereby, purchase or invest, directly or
indirectly, in any assets or property other than in the Ordinary Course of Business for assets or
property which are useful in, necessary for and are to be used in its business as presently conducted.
7.10. Transactions with Affiliates. Directly or indirectly, purchase, acquire or lease any
property from, or sell, transfer or lease any property to, or otherwise enter into any transaction or
deal with, any Affiliate, except for (i) transactions among Loan Parties which are not expressly
prohibited by the terms of this Agreement and which are in the Ordinary Course of Business, (ii)
payment by Loan Parties of dividends and distributions permitted under Section 7.7 hereof, (iii)
transactions disclosed to Agent in writing, which are in the Ordinary Course of Business, on an
arm’s-length basis on terms and conditions no less favorable than terms and conditions which
would have been obtainable from a Person other than an Affiliate, and (iv) as disclosed on
Schedule 7.10.
7.11. Leases. Enter as lessee into any lease arrangement for real or personal property
(unless capitalized and permitted under Section 7.6 hereof) if after giving effect thereto, aggregate
annual rental payments for all leased property would exceed $100,000 in any one fiscal year in the
aggregate for all Loan Parties.
7.12. Subsidiaries.
(a) Form any Subsidiary unless such Subsidiary (i) is not a Foreign Subsidiary,
(ii) at Agent’s discretion, (x) expressly joins in this Agreement as a borrower and becomes jointly
and severally liable for the obligations of Loan Parties hereunder, under the Notes, and under any
other agreement between any Loan Party and Lenders, or (y) becomes a Guarantor with respect to
the Obligations and executes a Guarantor Security Agreement in favor of Agent, and (iii) Agent
shall have received all documents, including without limitation, legal opinions and appraisals it
may reasonably require to establish compliance with each of the foregoing conditions in
connection therewith.
(b) Enter into any partnership, joint venture or similar arrangement absent the
consent of Agent not to be unreasonably withheld.
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7.13. Fiscal Year and Accounting Changes. Change its fiscal year end from November
30th or make any significant change (i) in accounting treatment and reporting practices except as
required by GAAP or (ii) in tax reporting treatment except as required by law.
7.14. Pledge of Credit. Now or hereafter pledge Agent’s or any Lender’s credit on any
purchases, commitments or contracts or for any purpose whatsoever or use any portion of any
Advance in or for any business other than such Loan Party’s business operations as conducted on
the Closing Date, in each case, except pursuant to the issuance of any Letter of Credit.
7.15. Amendment of Organizational Documents. (i) Change its legal name, (ii) change
its form of legal entity (e.g., converting from a corporation to a limited liability company or vice
versa), (iii) change its jurisdiction of organization or become (or attempt or purport to become)
organized in more than one jurisdiction, or (iv) otherwise amend, modify or waive any material
term or provision of its Organizational Documents unless required by law, in any such case without
(x) giving at least thirty (30) days prior written notice of such intended change to Agent, and (y)
having received from Agent confirmation that Agent has taken all steps necessary for Agent to
continue the perfection of and protect the enforceability and priority of its Liens in the Collateral
belonging to such Loan Party and in the Equity Interests of such Loan Party.
7.16. Compliance with ERISA. (i) (x) Maintain, or permit any member of the Controlled
Group to maintain, or (y) become obligated to contribute, or permit any member of the Controlled
Group to become obligated to contribute, to any Plan, other than those Plans disclosed on Schedule
5.8(d), (ii) engage, or permit any member of the Controlled Group to engage, in any non-exempt
“prohibited transaction”, as that term is defined in Section 406 of ERISA or Section 4975 of the
Code, (iii) terminate, or permit any member of the Controlled Group to terminate, any Plan where
such event could result in any liability of any Loan Party or any member of the Controlled Group
or the imposition of a lien on the property of any Loan Party or any member of the Controlled
Group pursuant to Section 4068 of ERISA, (iv) incur, or permit any member of the Controlled
Group to incur, any withdrawal liability to any Multiemployer Plan; (v) fail promptly to notify
Agent of the occurrence of any Termination Event, (vi) except as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect, fail to comply, or
permit a member of the Controlled Group to fail to comply, with the requirements of ERISA or
the Code or other Applicable Laws in respect of any Plan, (vii) except as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect, fail to meet, permit
any member of the Controlled Group to fail to meet, or permit any Plan to fail to meet all minimum
funding requirements under ERISA and the Code, without regard to any waivers or variances, or
postpone or delay or allow any member of the Controlled Group to postpone or delay any funding
requirement with respect of any Plan, or (viii) cause, or permit any member of the Controlled
Group to cause, a representation or warranty in Section 5.8(d) to cease to be true and correct.
7.17. Prepayment of Indebtedness. At any time, directly or indirectly, prepay any
Indebtedness (other than to Lenders), or repurchase, redeem, retire or otherwise acquire any
Indebtedness of any Loan Party, in an aggregate amount exceeding $50,000 in any fiscal year of
the Loan Parties.
7.18. Other Agreements. Enter into any amendment, waiver or modification of the
Advantage Documents or the CaseStack Documents.
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7.19. Membership/Partnership Interests. Designate or permit any of their Subsidiaries to
(a) treat their limited liability company membership interests or partnership interests, as the case
may be, as securities as contemplated by the definition of “security” in Section 8-102(15) and by
Section 8-103 of Article 8 of the Uniform Commercial Code or (b) certificate their limited liability
membership interests or partnership interests, as applicable.
7.20. Inactive Subsidiaries. Other than CCA, engage or permit any Subsidiary to engage
in any business or own any assets or have any liabilities other than those activities that are
incidental to (x) the maintenance of its corporate existence in compliance with Applicable Law
and (y) legal, Tax and accounting matters in connection with the foregoing activities.
VIII. CONDITIONS PRECEDENT.
8.1. Conditions to Initial Advances. The agreement of Lenders to make the initial
Advances requested to be made on the Closing Date is subject to the satisfaction, or waiver by
Agent, immediately prior to or concurrently with the making of such Advances, of the following
conditions precedent:
(a) Note. Agent shall have received the Notes duly executed and delivered by
an authorized officer of each Borrower;
(b) Other Documents. Agent shall have received (i) each of the executed Other
Documents, as applicable, and (ii) a duly executed and completed PINACLE Delegation Letter, in
form and substance satisfactory to Agent;
(c) Financial Condition Certificates. Agent shall have received an executed
Financial Condition Certificate in the form of Exhibit 8.1(c).
(d) Closing Certificate. Agent shall have received a closing certificate signed
by the Chief Financial Officer of each Loan Party dated as of the date hereof, stating that (i) all
representations and warranties set forth in this Agreement and the Other Documents are true and
correct on and as of such date, and (ii) on such date no Default or Event of Default has occurred
or is continuing;
(e) Borrowing Base. Agent shall have received evidence from Loan Parties
that the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and
amount to support Advances in the amount requested by Borrowers on the Closing Date;
(f) Undrawn Availability. After giving effect to the initial Advances
hereunder, Borrowers shall have Undrawn Availability of at least $1,250,000
(g) [Reserved];
(h) Advantage Documents and OHL Documents. Agent shall have received
final executed copies of the Advantage Documents and OHL Documents, and all related
agreements, documents and instruments as in effect on the Closing Date all of which shall be
satisfactory in form and substance to Agent.
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(i) Equity Contribution. Agent shall have received evidence of a new cash
capital contribution to CCA of no less than $1,000,000.
(j) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by this Agreement, any related
agreement or under law or reasonably requested by Agent to be filed, registered or recorded in
order to create, in favor of Agent, a perfected security interest in or lien upon the Collateral shall
have been properly filed, registered or recorded in each jurisdiction in which the filing, registration
or recordation thereof is so required or requested, and Agent shall have received an
acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or
recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating
thereto;
(k) [Reserved];
(l) Secretary’s Certificates, Authorizing Resolutions and Good Standings of
Borrowers. Agent shall have received a certificate of the Secretary or Assistant Secretary (or other
equivalent officer, partner or manager) of each Borrowers in form and substance satisfactory to
Agent dated as of the Closing Date which shall certify (i) copies of resolutions in form and
substance reasonably satisfactory to Agent, of the board of directors (or other equivalent governing
body, member or partner) of such Borrower authorizing (x) the execution, delivery and
performance of this Agreement, the Notes and each Other Document to which such Borrower is a
party (including authorization of the incurrence of indebtedness, borrowing of Revolving
Advances and Swing Loans and the Term Loan and requesting of Letters of Credit on a joint and
several basis with all Borrowers as provided for herein), and (y) the granting by such Borrower of
the security interests in and liens upon the Collateral to secure all of the joint and several
Obligations of Borrowers (and such certificate shall state that such resolutions have not been
amended, modified, revoked or rescinded as of the date of such certificate), (ii) the incumbency
and signature of the officers of such Borrower authorized to execute this Agreement and the Other
Documents, (iii) copies of the Organizational Documents of such Borrower as in effect on such
date, complete with all amendments thereto, and (iv) the good standing (or equivalent status) of
such Borrower in its jurisdiction of organization and each applicable jurisdiction where the conduct
of such Borrower’s business activities or the ownership of its properties necessitates qualification,
as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable
jurisdiction) dated not more than thirty (30) days prior to the Closing Date, issued by the Secretary
of State or other appropriate official of each such jurisdiction;
(m) Legal Opinion. Agent shall have received the executed legal opinion of
▇▇▇ ▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to Agent which shall cover such
matters incident to the transactions contemplated by this Agreement, the Notes, the Other
Documents, and related agreements as Agent may reasonably require and each Loan Party hereby
authorizes and directs such counsel to deliver such opinions to Agent and Lenders;
(n) No Litigation. No litigation, investigation or proceeding before or by any
arbitrator or Governmental Body shall be continuing or threatened against any Loan Party or
against the officers or directors of any Loan Party (A) in connection with this Agreement, the Other
Documents or any of the transactions contemplated thereby and which, in the reasonable opinion
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of Agent, is deemed material or (B) which could, in the reasonable opinion of Agent, have a
Material Adverse Effect; and (ii) no injunction, writ, restraining order or other order of any nature
materially adverse to any Loan Party or the conduct of its business or inconsistent with the due
consummation of the Transactions shall have been issued by any Governmental Body;
(o) Collateral Examination. Agent shall have completed Collateral
examinations and received appraisals, the results of which shall be satisfactory in form and
substance to Agent, of the Receivables, Inventory, General Intangibles, equipment, brands and
trademarks of each Loan Party and all books and records in connection therewith;
(p) Fees. Agent shall have received all fees payable to Agent and Lenders on
or prior to the Closing Date hereunder, including pursuant to Article III hereof;
(q) Projections. Agent shall have received a copy of the Projections which shall
be satisfactory in all respects to Agent;
(r) Insurance. Agent shall have received in form and substance satisfactory to
Agent, (i) evidence that adequate insurance, including without limitation, casualty and liability
insurance, required to be maintained under this Agreement is in full force and effect, and (ii)
insurance certificates issued by Loan Parties’ insurance broker containing such information
regarding Loan Parties’ casualty and liability insurance policies as Agent shall request and naming
Agent as an additional insured, lender loss payee and/or mortgagee, as applicable;
(s) Payment Instructions. Agent shall have received written instructions from
Borrowing Agent directing the application of proceeds of the initial Advances made pursuant to
this Agreement;
(t) Consents. Agent shall have received any and all Consents necessary to
permit the effectuation of the transactions contemplated by this Agreement and the Other
Documents; and, Agent shall have received such Consents and waivers of such third parties as
might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary;
(u) No Adverse Material Change. (i) Since November 30, 2017, there shall not
have occurred any event, condition or state of facts which could reasonably be expected to have a
Material Adverse Effect and (ii) no representations made or information supplied to Agent or
Lenders shall have been proven to be inaccurate or misleading in any material respect;
(v) Contract Review. Agent shall have received and reviewed all Material
Contracts of Loan Parties including leases, union contracts, labor contracts, vendor supply
contracts, license agreements and distributorship agreements and such contracts and agreements
shall be satisfactory in all respects to Agent;
(w) Compliance with Laws. Agent shall be reasonably satisfied that each Loan
Party is in compliance with all pertinent federal, state, local or territorial regulations, including
those with respect to the Federal Occupational Safety and Health Act, the Environmental
Protection Act, ERISA and the Anti-Terrorism Laws; and
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(x) Other. All corporate and other proceedings, and all documents, instruments
and other legal matters in connection with the Transactions shall be satisfactory in form and
substance to Agent and its counsel.
8.2. Conditions to Each Advance. The agreement of Lenders to make any Advance
requested to be made on any date (including the initial Advance), is subject to the satisfaction of
the following conditions precedent as of the date such Advance is made:
(a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to this Agreement, the Other Documents and any related
agreements to which it is a party, and each of the representations and warranties contained in any
certificate, document or financial or other statement furnished at any time under or in connection
with this Agreement, the Other Documents or any related agreement shall be true and correct in
all material respects (and in all respects if such representation and warranty is already qualified by
materiality or by reference to a Material Adverse Effect) on and as of such date as if made on and
as of such date, except to the extent that any such representations or warranties expressly relate to
an earlier and/or specified date, in which case they shall be true in all material respects (and in all
respects if such representation and warranty is already qualified by materiality or by reference to
a Material Adverse Effect) as of such earlier or specified date;
(b) No Default. No Event of Default or Default shall have occurred and be
continuing on such date, or would exist after giving effect to the Advances requested to be made,
on such date; provided, however that Agent, in its sole discretion, may continue to make Advances
notwithstanding the existence of an Event of Default or Default and that any Advances so made
shall not be deemed a waiver of any such Event of Default or Default; and
(c) Maximum Advances. In the case of any type of Advance requested to be
made, after giving effect thereto, the aggregate amount of such type of Advance shall not exceed
the maximum amount of such type of Advance permitted under this Agreement.
Each request for an Advance by any Loan Party hereunder shall constitute a representation
and warranty by each Loan Party as of the date of such Advance that the conditions contained in
this subsection shall have been satisfied.
IX. INFORMATION AS TO BORROWERS.
Each Loan Party shall, or (except with respect to Section 9.11) shall cause Borrowing
Agent on its behalf to, until satisfaction in full of the Obligations and the termination of this
Agreement:
9.1. Disclosure of Material Matters. Immediately upon learning thereof, report to Agent
all matters materially affecting the value, enforceability or collectability of any portion of the
Collateral with a value equal to or in excess of $50,000, including any Loan Party’s reclamation
or repossession of, or the return to any Loan Party of, a material amount of goods or claims or
disputes asserted by any Customer or other obligor, other than in the Ordinary Course of Business.
9.2. Schedules. Deliver to Agent on or before the twentieth (20th) day of each month
as and for the prior month (a) accounts receivable ageings inclusive of reconciliations to the
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general ledger, (b) accounts payable schedules inclusive of reconciliations to the general ledger,
(c) Inventory reports, (d) a Borrowing Base Certificate in form and substance satisfactory to Agent
(which shall be calculated as of the last day of the prior month and which shall not be binding upon
Agent or restrictive of Agent’s rights under this Agreement), and (e) a sales report/roll forward
report and a cash receipt journal; provided, however, that if any Revolving Advances are
outstanding, then sales reports/roll forward reports and cash receipt journals shall be delivered
weekly, on or before the Tuesday of each week for the prior week; and provided, further, that
following any period of time during which no Revolving Advances are outstanding, if Borrowers
wish to request a Revolving Advance, Borrowers shall deliver a sales report/roll forward report
and a cash receipt journal, each of which are current as of no less than 10 days prior to the date of
such request. In addition, each Loan Party will deliver to Agent (A), on or before the twentieth
(20th) day of each month as and for the prior month, reports on all documentary letters of credit
supporting Receivables, and (B), at such intervals as Agent may reasonably require: (i)
confirmatory assignment schedules; (ii) copies of Customer’s invoices; (iii) evidence of shipment
or delivery; and (iv) such further schedules, documents and/or information regarding the
Collateral, including trial balances and test verifications. Agent shall have the right to confirm and
verify all Receivables by any manner and through any medium it considers advisable and do
whatever it may deem reasonably necessary to protect its interests hereunder. The items to be
provided under this Section 9.2 are to be in form satisfactory to Agent and executed by each Loan
Party and delivered to Agent from time to time solely for Agent’s convenience in maintaining
records of the Collateral, and any Loan Party’s failure to deliver any of such items to Agent shall
not affect, terminate, modify or otherwise limit Agent’s Lien with respect to the Collateral. Unless
otherwise agreed to by Agent, the items to be provided under this Section 9.2 shall be delivered to
Agent by the specific method of Approved Electronic Communication designated by Agent.
9.3. Environmental Reports.
(a) Furnish Agent, concurrently with the delivery of the financial statements
referred to in Sections 9.7 and 9.8, with a certificate signed by the President or Chief Financial
Officer of Borrowing Agent stating, to the best of his knowledge, that each Loan Party is in
compliance in all material respects with all applicable Environmental Laws. To the extent any
Loan Party is not in compliance with the foregoing laws, the certificate shall set forth with
specificity all areas of non-compliance and the proposed action such Loan Party will implement
in order to achieve full compliance.
(b) In the event any Loan Party obtains, gives or receives notice of any Release
or threat of Release of a reportable quantity of any Hazardous Materials at the Real Property (any
such event being hereinafter referred to as a “Hazardous Discharge”) or receives any notice of
violation, request for information or notification that it is potentially responsible for investigation
or cleanup of environmental conditions at the Real Property, demand letter or complaint, order,
citation, or other written notice with regard to any Hazardous Discharge or violation of
Environmental Laws affecting the Real Property or any Loan Party’s interest therein or the
operations or the business (any of the foregoing is referred to herein as an “Environmental
Complaint”) from any Person, including any Governmental Body, then Borrowing Agent shall,
within five (5) Business Days, give written notice of same to Agent detailing facts and
circumstances of which any Loan Party is aware giving rise to the Hazardous Discharge or
Environmental Complaint. Such information is to be provided to allow Agent to protect its security
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interest in and Lien on the Collateral and is not intended to create nor shall it create any obligation
upon Agent or any Lender with respect thereto.
(c) Borrowing Agent shall promptly forward to Agent copies of any request for
information, notification of potential liability, demand letter relating to potential responsibility
with respect to the investigation or cleanup of Hazardous Materials at any other site owned,
operated or used by any Loan Party to manage of Hazardous Materials and shall continue to
forward copies of correspondence between any Loan Party and the Governmental Body regarding
such claims to Agent until the claim is settled. Borrowing Agent shall promptly forward to Agent
copies of all documents and reports concerning a Hazardous Discharge or Environmental
Complaint at the Real Property, operations or business that any Loan Party is required to file under
any Environmental Laws. Such information is to be provided solely to allow Agent to protect
Agent’s security interest in and Lien on the Collateral.
9.4. Litigation. Promptly notify Agent in writing of any claim, litigation, suit or
administrative proceeding affecting any Loan Party, whether or not the claim is covered by
insurance, and of any litigation, suit or administrative proceeding, which in any such case affects
the Collateral or which could reasonably be expected to have a Material Adverse Effect.
9.5. Material Occurrences. Promptly notify Agent in writing upon the occurrence of:
(a) any Event of Default or Default; (b) any event, development or circumstance whereby any
financial statements or other reports furnished to Agent fail in any material respect to present fairly,
in accordance with GAAP consistently applied, the financial condition or operating results of any
Loan Party as of the date of such statements; (c) each and every default by any Loan Party which
might result in the acceleration of the maturity of any Indebtedness, including the names and
addresses of the holders of such Indebtedness in a principal amount in excess of $50,000 with
respect to which there is a default existing or with respect to which the maturity has been or could
be accelerated, and the amount of such Indebtedness; and (d) any other development in the business
or affairs of any Loan Party or any Guarantor, which could reasonably be expected to have a
Material Adverse Effect; in each case describing the nature thereof and the action Loan Parties
propose to take with respect thereto.
9.6. Government Receivables. Notify Agent promptly if any of its Receivables arise
out of contracts between any Loan Party and the United States, any state, or any department,
agency or instrumentality of any of them.
9.7. Annual Financial Statements. Furnish Agent within one-hundred-twenty (120)
days after the end of each fiscal year of Loan Parties, financial statements of Loan Parties on a
consolidating and consolidated basis, including, but not limited to, statements of income and
stockholders’ equity and cash flow from the beginning of the current fiscal year to the end of such
fiscal year and the balance sheet as at the end of such fiscal year, all prepared in accordance with
GAAP applied on a basis consistent with prior practices, and in reasonable detail and reported
upon without qualification by an independent certified public accounting firm selected by the
Audit Committee of the Borrower’s Board of Directors and reasonably satisfactory to Agent (the
“Accountants”). In addition, the reports shall be accompanied by a Compliance Certificate.
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9.8. Quarterly Financial Statements. Furnish Agent within fifty (50) days after the end
of each fiscal quarter, an unaudited balance sheet of Loan Parties on a consolidated and
consolidating basis and unaudited statements of income and stockholders’ equity and cash flow of
Loan Parties on a consolidated and consolidating basis reflecting results of operations from the
beginning of the fiscal year to the end of such quarter and for such quarter, prepared on a basis
consistent with prior practices and complete and correct in all material respects, subject to normal
and recurring year-end adjustments that individually and in the aggregate are not material to Loan
Parties’ business operations and setting forth in comparative form the respective financial
statements for the corresponding date and period in the previous fiscal year. The reports shall be
accompanied by a Compliance Certificate.
9.9. Monthly Financial Statements. Furnish Agent within thirty (30) days after the end
of each month, an unaudited balance sheet of Loan Parties on a consolidated and consolidating
basis and unaudited statements of income of Loan Parties on a consolidated and consolidating
basis reflecting results of operations from the beginning of the fiscal year to the end of such month
and for such month, prepared on a basis consistent with prior practices and complete and correct
in all material respects, subject to normal and recurring year-end adjustments that individually and
in the aggregate are not material to Loan Parties’ business operations and setting forth in
comparative form the respective financial statements for the corresponding date and period in the
previous fiscal year. The reports shall be accompanied by a Compliance Certificate.
9.10. Other Reports. Furnish Agent as soon as available, copies of all annual, regular,
periodic and special reports and registration statements which any Loan Party may file or be
required to file, copies of any report, filing or communication with the SEC under Section 13 or
15(d) of the Exchange Act, or with any Governmental Body that may be substituted therefor, or
with any national securities exchange, and in any case not otherwise required to be delivered to
the Agent pursuant hereto, provided however that to the extent such report, filing or
communication (other than financial statements required to be delivered pursuant to Sections 9.7
and 9.8) is publicly available through the SEC’s ▇▇▇▇▇ system, then such report, filing or
communication shall be deemed to be delivered in satisfaction of this Section 9.10.
9.11. Additional Information. Furnish Agent with such additional information as Agent
shall reasonably request in order to enable Agent to determine whether the terms, covenants,
provisions and conditions of this Agreement have been complied with by Loan Parties including,
without the necessity of any request by Agent, at least thirty (30) days prior thereto, notice of any
Loan Party’s opening of any new office or place of business or any Loan Party’s closing of any
existing office or place of business.
9.12. Projected Operating Budget. Furnish Agent, no later than sixty (60) days after the
beginning of each Loan Party’s fiscal years commencing with fiscal year 2018, balance sheet
projections and projected income statement for such fiscal year substantially in the form of the
Projections, such balance sheet projections and projected income statement to be accompanied by
a certificate signed by the Chief Financial Officer of each Loan Party to the effect that such
projections have been prepared on a reasonable basis and in good faith, and based on assumptions
believed by Borrower to be reasonable at the time made and from the best information then
available to Borrower.
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9.13. Variances From Operating Budget. Furnish Agent, concurrently with the delivery
of the financial statements referred to in Sections 9.7 and 9.8 and 9.9, a written report summarizing
all material variances from budgets submitted by Loan Parties pursuant to Section 9.12 and a
discussion and analysis by management with respect to such variances.
9.14. Notice of Suits, Adverse Events. Furnish Agent with prompt written notice of
(i) any lapse or other termination of any Consent issued to any Loan Party by any Governmental
Body or any other Person that is material to the operation of any Loan Party’s business, (ii) any
refusal by any Governmental Body or any other Person to renew or extend any such Consent; (iii)
copies of any periodic or special reports filed by any Loan Party with any Governmental Body or
Person, if such reports indicate any material change in the business, operations, affairs or condition
of any Loan Party, or if copies thereof are requested by Lender, and (iv) copies of any material
notices and other communications from any Governmental Body or Person which specifically
relate to any Loan Party.
9.15. ERISA Notices and Requests. Furnish Agent with prompt written notice in the
event that (i) any Loan Party or any member of the Controlled Group knows or has reason to know
that a Termination Event has occurred, together with a written statement describing such
Termination Event and the action, if any, which such Loan Party or any member of the Controlled
Group has taken, is taking, or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, Department of Labor or PBGC with respect
thereto, (ii) any Loan Party or any member of the Controlled Group knows or has reason to know
that a prohibited transaction (as defined in Sections 406 of ERISA and 4975 of the Code) has
occurred together with a written statement describing such transaction and the action which such
Loan Party or any member of the Controlled Group has taken, is taking or proposes to take with
respect thereto, (iii) a funding waiver request has been filed with respect to any Plan together with
all communications received by any Loan Party or any member of the Controlled Group with
respect to such request, (iv) any increase in the benefits of any existing Plan or the establishment
of any new Plan or the commencement of contributions to any Plan to which any Loan Party or
any member of the Controlled Group was not previously contributing shall occur, (v) any Loan
Party or any member of the Controlled Group shall receive from the PBGC a notice of intention
to terminate a Plan or to have a trustee appointed to administer a Plan, together with copies of each
such notice, (vi) any Loan Party or any member of the Controlled Group shall receive any
favorable or unfavorable determination letter from the Internal Revenue Service regarding the
qualification of a Plan under Section 401(a) of the Code, together with copies of each such letter;
(vii) any Loan Party or any member of the Controlled Group shall receive a notice regarding the
imposition of withdrawal liability, together with copies of each such notice; (viii) any Loan Party
or any member of the Controlled Group shall fail to make a required installment or any other
required payment under the Code or ERISA on or before the due date for such installment or
payment; or (ix) any Loan Party or any member of the Controlled Group knows that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a Multiemployer Plan, (c) the PBGC has instituted or will institute
proceedings under Section 4042 of ERISA to terminate a Multiemployer Plan or (d) a
Multiemployer Plan is subject to Section 432 of the Code or Section 305 of ERISA.
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9.16. Additional Documents. Execute and deliver to Agent, upon request, such
documents and agreements as Agent may, from time to time, reasonably request to carry out the
purposes, terms or conditions of this Agreement.
9.17. Updates to Certain Schedules. Deliver to Agent promptly as shall be required to
maintain the related representations and warranties as true and correct, updates to Schedules
4.4(b)(i) to the extent there is a change in Inventory or other Collateral with a cumulative book
value in excess of $50,000, 5.9 (Intellectual Property), 5.24 (Equity Interests) and 5.25
(Commercial Tort Claims); provided, that absent the occurrence and continuance of any Event of
Default, Loan Party shall only be required to provide such updates on a quarterly basis in
connection with delivery of a Compliance Certificate with respect to the applicable fiscal quarter.
Any such updated Schedules delivered by Loan Parties to Agent in accordance with this Section
9.17 shall automatically and immediately be deemed to amend and restate the prior version of such
Schedule previously delivered to Agent and attached to and made part of this Agreement.
X. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute an “Event of
Default”:
10.1. Nonpayment. Failure by any Loan Party to pay when due (a) any principal or
interest on the Obligations (including without limitation pursuant to Section 2.9), or (b) any other
fee, charge, amount or liability provided for herein or in any Other Document, in each case whether
at maturity, by reason of acceleration pursuant to the terms of this Agreement, by notice of
intention to prepay or by required prepayment.
10.2. Breach of Representation. Any representation or warranty made or deemed made
by any Loan Party in this Agreement, any Other Document or any related agreement or in any
certificate, document or financial or other statement furnished at any time in connection herewith
or therewith shall prove to have been incorrect or misleading in any material respect on the date
when made or deemed to have been made;
10.3. Financial Information. Failure by any Loan Party to (i) furnish financial
information when due or when requested (which failure, with respect to Sections 9.7, 9.8 or 9.9,
shall not be cured for five (5) days) or (ii) permit the inspection of its books or records or access
to its premises for audits and appraisals in accordance with the terms hereof;
10.4. Judicial Actions. Issuance of a notice of Lien, levy, assessment, injunction or
attachment (a) against any Loan Party’s Inventory or Receivables which secure an Obligation in
excess of $50,000 or (b) against a material portion of any Loan Party’s other property;
10.5. Noncompliance. Except as otherwise provided for in Sections 10.1, 10.3 and
10.5(ii), (i) failure or neglect of any Loan Party, or any Person to perform, keep or observe any
term, provision, condition, covenant herein contained, or contained in any Other Document or any
other agreement or arrangement, now or hereafter entered into between any Loan Party or such
Person, and Agent or any Lender, or (ii) failure or neglect of any Loan Party to perform, keep or
observe any term, provision, condition or covenant, contained in Sections 4.5, 6.1, 6.3, 9.4 or 9.6
hereof which is not cured within ten (10) days from the occurrence of such failure or neglect;
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10.6. Judgments. Any (a) judgment or judgments, judgment lien(s), writ(s), order(s) or
decree(s) for the payment of money are rendered against any Loan Party or against all Loan Parties
for an aggregate amount in excess of $250,000 and (b) (i) action shall be legally taken by any
judgment creditor to levy upon assets or properties of any Loan Party to enforce any such
judgment, (ii) such judgment, judgment lien, writ, order, or action shall remain undischarged for a
period of sixty (60) consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal, continuous stay, satisfaction, discharge of record or otherwise, shall
not be in effect, or (iii) any Liens arising by virtue of the rendition, entry or issuance of such
judgment upon assets or properties of any Loan Party or any Guarantor shall be senior to any Liens
in favor of Agent on such assets or properties;
10.7. Bankruptcy. Any Loan Party or any Subsidiary of any Loan Party shall (i) apply
for, consent to or suffer the appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or similar fiduciary of itself or of all or a substantial part of its property, (ii)
admit in writing its inability, or be generally unable, to pay its debts as they become due or cease
operations of its present business, (iii) make a general assignment for the benefit of creditors, (iv)
commence a voluntary case under any state or federal bankruptcy or receivership laws (as now or
hereafter in effect), (v) be adjudicated a bankrupt or insolvent (including by entry of any order for
relief in any involuntary bankruptcy or insolvency proceeding commenced against it), (vi) file a
petition seeking to take advantage of any other law providing for the relief of debtors, (vii)
acquiesce to, or fail to have dismissed, within thirty (30) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (viii) take any action for the purpose of effecting
any of the foregoing;
10.8. Material Adverse Effect. The occurrence of any event or development which could
reasonably be expected to have a Material Adverse Effect;
10.9. Lien Priority. Any Lien created hereunder or provided for hereby or under any
agreement related to this Agreement for any reason ceases to be or is not a valid and perfected
Lien having a first priority interest (subject only to Permitted Encumbrances that have priority as
a matter of Applicable Law to the extent such Liens only attach to Collateral other than Receivables
or Inventory);
10.10. Cross Default. Either (x) any specified “event of default” under any Indebtedness
(other than the Obligations) of any Loan Party with a then-outstanding principal balance (or, in the
case of any Indebtedness not so denominated, with a then-outstanding total obligation amount) of
$250,000 or more, or any other event or circumstance which would permit the holder of any such
Indebtedness of any Loan Party to accelerate such Indebtedness (and/or the obligations of Loan
Party thereunder) prior to the scheduled maturity or termination thereof, shall occur and is
continuing (regardless of whether the holder of such Indebtedness shall actually accelerate,
terminate or otherwise exercise any rights or remedies with respect to such Indebtedness) or (y) a
default of the obligations of any Loan Party under any other agreement to which it is a party shall
occur which has or is reasonably likely to have a Material Adverse Effect;
10.11. Breach of Guaranty . Termination or breach of any Guaranty, Guarantor Security
Agreement or similar agreement executed and delivered to Agent in connection with the
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Obligations of any Loan Party, or if any Loan Party attempts to terminate, challenges the validity
of, or its liability under, any such Guaranty, Guarantor Security Agreement or similar agreement;
10.12. Change of Control. Any Change of Control shall occur;
10.13. Invalidity. Any material provision of this Agreement or any Other Document shall,
for any reason, cease to be valid and binding on any Loan Party, or any Loan Party shall so claim
in writing to Agent or any Lender or any Loan Party challenges the validity of or its liability under
this Agreement or any Other Document;
10.14. Seizures. Any (a) portion of the Collateral having a value in excess of $50,000
shall be seized, subject to garnishment or taken by a Governmental Body, or (b) the title and rights
of any Loan Party, or any Person which is the owner of any material portion of the Collateral shall
have become the subject matter of claim, litigation, suit, garnishment or other proceeding which
could reasonably be expected to, in the opinion of Agent, upon final determination, result in
impairment or loss of the security provided by this Agreement or the Other Documents;
10.15. Operations. The operations of any Loan Party’s or any Guarantor’s manufacturing
facility are interrupted (other than in connection with any regularly scheduled shutdown for
employee vacations and/or maintenance in the Ordinary Course of Business) at any time for more
than ten (10) consecutive days, unless such Loan Party or Guarantor shall (i) be entitled to receive
for such period of interruption, proceeds of business interruption insurance sufficient to assure that
its per diem cash needs during such period is at least equal to its average per diem cash needs for
the consecutive three month period immediately preceding the initial date of interruption and (ii)
receive such proceeds in the amount described in clause (i) preceding not later than thirty (30) days
following the initial date of any such interruption; provided, however, that notwithstanding the
provisions of clauses (i) and (ii) of this Section 10.15, an Event of Default shall be deemed to have
occurred if such Loan Party or Guarantor shall be receiving the proceeds of business interruption
insurance for a period of thirty (30) consecutive days;
10.16. Pension Plans. An event or condition specified in Sections 7.16 or 9.15 hereof shall
occur or exist with respect to any Plan and, as a result of such event or condition, together with all
other such events or conditions, any Loan Party or any member of the Controlled Group shall
incur, or in the opinion of Agent be reasonably likely to incur, a liability to a Plan or the PBGC
(or both) which, in the reasonable judgment of Agent, would have a Material Adverse Effect; or
the occurrence of any Termination Event, or any Loan Party’s failure to immediately report a
Termination Event in accordance with Section 9.15 hereof ; or
10.17. Anti-Money Laundering/International Trade Law Compliance. Any representation
or warranty contained in Section 16.18 is or becomes false or misleading at any time.
XI. LENDERS’ RIGHTS AND REMEDIES AFTER DEFAULT.
11.1. Rights and Remedies.
(a) Upon the occurrence and during the continuance of: (i) an Event of Default
pursuant to Section 10.7 (other than Section 10.7(vii)), all Obligations shall be immediately due
and payable and this Agreement and the obligation of Lenders to make Advances shall be deemed
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terminated, (ii) any of the other Events of Default and at any time thereafter, at the option of Agent
or at the direction of Required Lenders all Obligations shall be immediately due and payable and
Agent or Required Lenders shall have the right to terminate this Agreement and to terminate the
obligation of Lenders to make Advances; and (iii) without limiting Section 8.2 hereof, any Default
under Sections 10.7(vii) hereof, the obligation of Lenders to make Advances hereunder shall be
suspended until such time as such involuntary petition shall be dismissed. Upon the occurrence
and during the continuance of any Event of Default, Agent shall have the right to exercise any and
all rights and remedies provided for herein, under the Other Documents, under the Uniform
Commercial Code and at law or equity generally, including the right to foreclose the security
interests granted herein and to realize upon any Collateral by any available judicial procedure
and/or to take possession of and sell any or all of the Collateral with or without judicial process.
Agent may enter any of any Loan Party’s premises or other premises without legal process and
without incurring liability to any Loan Party therefor, and Agent may thereupon, or at any time
thereafter, in its discretion without notice or demand, take the Collateral and remove the same to
such place as Agent may deem advisable and Agent may require Loan Parties to make the
Collateral available to Agent at a convenient place. With or without having the Collateral at the
time or place of sale, Agent may sell the Collateral, or any part thereof, at public or private sale,
at any time or place, in one or more sales, at such price or prices, and upon such terms, either for
cash, credit or future delivery, as Agent may elect. Except as to that part of the Collateral which
is perishable or threatens to decline speedily in value or is of a type customarily sold on a
recognized market, Agent shall give Loan Parties reasonable notification of such sale or sales, it
being agreed that in all events written notice mailed to Borrowing Agent at least ten (10) days prior
to such sale or sales is reasonable notification. At any public sale Agent or any Lender may bid
(including credit bid) for and become the purchaser, and Agent, any Lender or any other purchaser
at any such sale thereafter shall hold the Collateral sold absolutely free from any claim or right of
whatsoever kind, including any equity of redemption and all such claims, rights and equities are
hereby expressly waived and released by each Loan Party. In connection with the exercise of the
foregoing remedies, including the sale of Inventory, Agent is granted a nonrevocable, royalty free,
nonexclusive license until the Obligations are paid in full in cash and Agent is granted permission
to use all of each Loan Party’s (a) Intellectual Property which is used or useful in connection with
Inventory for the purpose of marketing, advertising for sale and selling or otherwise disposing of
such Inventory and (b) equipment for the purpose of completing the manufacture of unfinished
goods. The cash proceeds realized from the sale of any Collateral shall be applied to the
Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will only be applied
to the Obligations as they are converted into cash. If any deficiency shall arise, Loan Parties shall
remain liable to Agent and Lenders therefor.
(b) To the extent that Applicable Law imposes duties on Agent to exercise
remedies in a commercially reasonable manner, each Loan Party acknowledges and agrees that
after the occurrence and during the continuance of any Event of Default, it is not commercially
unreasonable for Agent: (i) to fail to incur expenses reasonably deemed significant by Agent to
prepare Collateral for disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition; (ii) to fail to obtain third party consents
for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to
obtain governmental or third party consents for the collection or disposition of Collateral to be
collected or disposed of; (iii) to fail to exercise collection remedies against Customers or other
Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral;
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(iv) to exercise collection remedies against Customers and other Persons obligated on Collateral
directly or through the use of collection agencies and other collection specialists; (v) to advertise
dispositions of Collateral through publications or media of general circulation, whether or not the
Collateral is of a specialized nature; (vi) to contact other Persons, whether or not in the same
business as any Loan Party, for expressions of interest in acquiring all or any portion of such
Collateral; (vii) to hire one or more professional auctioneers to assist in the disposition of
Collateral, whether or not the Collateral is of a specialized nature; (viii) to dispose of Collateral by
utilizing internet sites that provide for the auction of assets of the types included in the Collateral
or that have the reasonable capacity of doing so, or that match buyers and sellers of assets; (ix) to
dispose of assets in wholesale rather than retail markets; (x) to disclaim disposition warranties,
such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to
insure Agent against risks of loss, collection or disposition of Collateral or to provide to Agent a
guaranteed return from the collection or disposition of Collateral; or (xii) to the extent deemed
appropriate by Agent, to obtain the services of other brokers, investment bankers, consultants and
other professionals to assist Agent in the collection or disposition of any of the Collateral. Each
Loan Party acknowledges that the purpose of this Section 11.1(b) is to provide non-exhaustive
indications of what actions or omissions by Agent would not be commercially unreasonable in
Agent’s exercise of remedies against the Collateral and that other actions or omissions by Agent
shall not be deemed commercially unreasonable solely on account of not being indicated in this
Section 11.1(b). Without limitation upon the foregoing, nothing contained in this Section 11.1(b)
shall be construed to grant any rights to any Loan Party or to impose any duties on Agent that
would not have been granted or imposed by this Agreement or by Applicable Law in the absence
of this Section 11.1(b).
11.2. Agent’s Discretion. Agent shall have the right in its sole discretion to determine
which rights, Liens, security interests or remedies Agent may at any time pursue, relinquish,
subordinate, or modify, which procedures, timing and methodologies to employ, and what any
other action to take with respect to any or all of the Collateral and in what order, thereto and such
determination will not in any way modify or affect any of Agent’s or Lenders’ rights hereunder as
against Loan Parties or each other.
11.3. Setoff. Subject to Section 14.13, in addition to any other rights which Agent or any
Lender may have under Applicable Law, upon the occurrence and during the continuance of an
Event of Default hereunder, Agent and such Lender shall have a right, immediately and without
notice of any kind, to apply any Loan Party’s property held by Agent and such Lender or any of
their Affiliates to reduce the Obligations and to exercise any and all rights of setoff which may be
available to Agent and such Lender with respect to any deposits held by Agent or such Lender.
11.4. Rights and Remedies not Exclusive. The enumeration of the foregoing rights and
remedies is not intended to be exhaustive and the exercise of any rights or remedy shall not
preclude the exercise of any other right or remedies provided for herein or otherwise provided by
law, all of which shall be cumulative and not alternative.
11.5. Allocation of Payments After Event of Default. Notwithstanding any other
provisions of this Agreement to the contrary, after the occurrence and during the continuance of
an Event of Default, all amounts collected or received by Agent on account of the Obligations
(including without limitation any amounts on account of any of Cash Management Liabilities or
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Hedge Liabilities), or in respect of the Collateral may, at Agent’s discretion, be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of Agent in connection with enforcing its rights and the rights of
Lenders under this Agreement and the Other Documents, and any Out-of-Formula Loans and
Protective Advances funded by Agent with respect to the Collateral under or pursuant to the terms
of this Agreement;
SECOND, to payment of any fees owed to Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of each of the Lenders to the extent owing to such Lender pursuant to
the terms of this Agreement;
FOURTH, to the payment of all of the Obligations consisting of accrued interest on account
of the Swing Loans;
FIFTH, to the payment of the outstanding principal amount of the Obligations consisting
of Swing Loans;
SIXTH, to the payment of all Obligations arising under this Agreement and the Other
Documents consisting of accrued fees and interest (other than interest in respect of Swing Loans
paid pursuant to clause FOURTH above);
SEVENTH, to the payment of the outstanding principal amount of the Obligations (other
than principal in respect of Swing Loans paid pursuant to clause FIFTH above) arising under this
Agreement (including Cash Management Liabilities and Hedge Liabilities) (including the payment
or cash collateralization of any outstanding Letters of Credit in accordance with Section 3.2(b)
hereof).
EIGHTH, to all other Obligations arising under this Agreement (other than Cash
Management Liabilities and Hedge Liabilities) which shall have become due and payable
(hereunder, under the Other Documents or otherwise) and not repaid pursuant to clauses “FIRST”
through “SEVENTH” above; and
NINTH, to all other Obligations which shall have become due and payable and not repaid
pursuant to clauses “FIRST” through “EIGHTH”; and
TENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; (ii) each of the
Lenders shall receive (so long as it is not a Defaulting Lender) an amount equal to its pro rata share
(based on the proportion that the then outstanding Advances, Cash Management Liabilities and
Hedge Liabilities held by such Lender bears to the aggregate then outstanding Advances, Cash
Management Liabilities and Hedge Liabilities) of amounts available to be applied pursuant to
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clauses “SIXTH”, “SEVENTH”, “EIGHTH” and “NINTH” above; and (iii) notwithstanding
anything to the contrary in this Section 11.5, no Swap Obligations of any Non-Qualifying Party
shall be paid with amounts received from such Non-Qualifying Party under its Guaranty (including
sums received as a result of the exercise of remedies with respect to such Guaranty) or from the
proceeds of such Non-Qualifying Party’s Collateral if such Swap Obligations would constitute
Excluded Hedge Liabilities, provided, however, that to the extent possible appropriate adjustments
shall be made with respect to payments and/or the proceeds of Collateral from other Loan Parties
that are Eligible Contract Participants with respect to such Swap Obligations to preserve the
allocation to Obligations otherwise set forth above in this Section 11.5; and (iv) to the extent that
any amounts available for distribution pursuant to clause “SEVENTH” above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by
Agent as cash collateral for the Letters of Credit pursuant to Section 3.2(b) hereof and applied (A)
first, to reimburse Issuer from time to time for any drawings under such Letters of Credit and (B)
then, following the expiration of all Letters of Credit, to all other obligations of the types described
in clauses “SEVENTH,” “EIGHTH”, and “NINTH” above in the manner provided in this Section
11.5.
XII. WAIVERS AND JUDICIAL PROCEEDINGS.
12.1. Waiver of Notice. Each Loan Party hereby waives notice of non-payment of any
of the Receivables, demand, presentment, protest and notice thereof with respect to any and all
instruments, notice of acceptance hereof, notice of loans or advances made, credit extended,
Collateral received or delivered, or any other action taken in reliance hereon, and all other demands
and notices of any description, except such as are expressly provided for herein.
12.2. Delay. No delay or omission on Agent’s or any Lender’s part in exercising any
right, remedy or option shall operate as a waiver of such or any other right, remedy or option or of
any Default or Event of Default.
12.3. Jury Waiver. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, COUNTERCLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT,
ANY OTHER DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, ANY
OTHER DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT ANY SUCH CLAIM,
COUNTERCLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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XIII. EFFECTIVE DATE AND TERMINATION.
13.1. Term. This Agreement, which shall inure to the benefit of and shall be binding
upon the respective successors and permitted assigns of each Loan Party, Agent and each Lender,
shall become effective on the date hereof and shall continue in full force and effect until February
5, 2021 (the “Term”) unless sooner terminated as herein provided. Loan Parties may terminate
this Agreement at any time upon ninety (90) days prior written notice to Agent upon payment in
full of the Obligations.
13.2. Termination. The termination of the Agreement shall not affect Agent’s or any
Lender’s rights, or any of the Obligations having their inception prior to the effective date of such
termination or any Obligations which pursuant to the terms hereof continue to accrue after such
date, and the provisions hereof shall continue to be fully operative until all transactions entered
into, rights or interests created and Obligations have been fully and indefeasibly paid, disposed of,
concluded or liquidated. The security interests, Liens and rights granted to Agent and Lenders
hereunder and the financing statements filed hereunder shall continue in full force and effect,
notwithstanding the termination of this Agreement or the fact that Borrowers’ Account may from
time to time be temporarily in a zero or credit position, until all of the Obligations of each Loan
Party have been indefeasibly paid and performed in full after the termination of this Agreement or
each Loan Party has furnished Agent and Lenders with an indemnification satisfactory to Agent
and Lenders with respect thereto. Accordingly, each Loan Party waives any rights which it may
have under the Uniform Commercial Code to demand the filing of termination statements with
respect to the Collateral, and Agent shall not be required to send such termination statements to
each Loan Party, or to file them with any filing office, unless and until this Agreement shall have
been terminated in accordance with its terms and all Obligations have been indefeasibly paid in
full in immediately available funds. All representations, warranties, covenants, waivers and
agreements contained herein shall survive termination hereof until all Obligations are indefeasibly
paid and performed in full.
XIV. REGARDING AGENT.
14.1. Appointment. Each Lender hereby designates PNC to act as Agent for such Lender
under this Agreement and the Other Documents. Each Lender hereby irrevocably authorizes
Agent to take such action on its behalf under the provisions of this Agreement and the Other
Documents and to exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto and Agent shall hold all Collateral, payments of
principal and interest, fees (except the fees set forth in Sections 2.8(b), 3.3(a) and 3.4), charges
and collections received pursuant to this Agreement, for the ratable benefit of Lenders. Agent may
perform any of its duties hereunder by or through its agents or employees. As to any matters not
expressly provided for by this Agreement (including collection of the Note) Agent shall not be
required to exercise any discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of
Required Lenders, and such instructions shall be binding; provided, however, that Agent shall not
be required to take any action which, in Agent’s discretion, exposes Agent to liability or which is
contrary to this Agreement or the Other Documents or Applicable Law unless Agent is furnished
with an indemnification reasonably satisfactory to Agent with respect thereto.
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14.2. Nature of Duties. Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the Other Documents. Neither Agent nor any of its
officers, directors, employees or agents shall be (i) liable for any action taken or omitted by them
as such hereunder or in connection herewith, unless caused by their gross (not mere) negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable
judgment), or (ii) responsible in any manner for any recitals, statements, representations or
warranties made by any Loan Party or any officer thereof contained in this Agreement, or in any
of the Other Documents or in any certificate, report, statement or other document referred to or
provided for in, or received by Agent under or in connection with, this Agreement or any of the
Other Documents or for the value, validity, effectiveness, genuineness, due execution,
enforceability or sufficiency of this Agreement, or any of the Other Documents or for any failure
of any Loan Party to perform its obligations hereunder. Agent shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any of the Other Documents, or to
inspect the properties, books or records of any Loan Party. The duties of Agent as respects the
Advances to Loan Parties shall be mechanical and administrative in nature; Agent shall not have
by reason of this Agreement a fiduciary relationship in respect of any Lender; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to impose upon Agent
any obligations in respect of this Agreement or the transactions described herein except as
expressly set forth herein.
14.3. Lack of Reliance on Agent. Independently and without reliance upon Agent or any
other Lender, each Lender has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Loan Party in connection with the
making and the continuance of the Advances hereunder and the taking or not taking of any action
in connection herewith, and (ii) its own appraisal of the creditworthiness of each Loan Party.
Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with respect thereto, whether coming into its
possession before making of the Advances or at any time or times thereafter except as shall be
provided by any Loan Party pursuant to the terms hereof. Agent shall not be responsible to any
Lender for any recitals, statements, information, representations or warranties herein or in any
agreement, document, certificate or a statement delivered in connection with or for the execution,
effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Agreement
or any Other Document, or of the financial condition of any Loan Party, or be required to make
any inquiry concerning either the performance or observance of any of the terms, provisions or
conditions of this Agreement, the Note, the Other Documents or the financial condition or
prospects of any Loan Party, or the existence of any Event of Default or any Default.
14.4. Resignation of Agent; Successor Agent. Agent may resign on sixty (60) days
written notice to each Lender and Borrowing Agent and upon such resignation, Required Lenders
will promptly designate a successor Agent reasonably satisfactory to Loan Parties (provided that
no such approval by Loan Parties shall be required (i) in any case where the successor Agent is
one of the Lenders or (ii) after the occurrence and during the continuance of any Event of Default).
Any such successor Agent shall succeed to the rights, powers and duties of Agent, and shall in
particular succeed to all of Agent’s right, title and interest in and to all of the Liens in the Collateral
securing the Obligations created hereunder or any Other Document (including all account control
agreements), and the term “Agent” shall mean such successor agent effective upon its appointment,
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and the former Agent’s rights, powers and duties as Agent shall be terminated, without any other
or further act or deed on the part of such former Agent. However, notwithstanding the foregoing,
if at the time of the effectiveness of the new Agent’s appointment, any further actions need to be
taken in order to provide for the legally binding and valid transfer of any Liens in the Collateral
from former Agent to new Agent and/or for the perfection of any Liens in the Collateral as held
by new Agent or it is otherwise not then possible for new Agent to become the holder of a fully
valid, enforceable and perfected Lien as to any of the Collateral, former Agent shall continue to
hold such Liens solely as agent for perfection of such Liens on behalf of new Agent until such
time as new Agent can obtain a fully valid, enforceable and perfected Lien on all Collateral,
provided that Agent shall not be required to or have any liability or responsibility to take any
further actions after such date as such agent for perfection to continue the perfection of any such
Liens (other than to forego from taking any affirmative action to release any such Liens). After
any Agent’s resignation as Agent, the provisions of this Article XIV, and any indemnification
rights under this Agreement, including without limitation, rights arising under Section 16.5 hereof,
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement (and in the event resigning Agent continues to hold any Liens pursuant to
the provisions of the immediately preceding sentence, the provisions of this Article XIV and any
indemnification rights under this Agreement, including without limitation, rights arising under
Section 16.5 hereof, shall inure to its benefit as to any actions taken or omitted to be taken by it in
connection with such Liens).
14.5. Certain Rights of Agent. If Agent shall request instructions from Lenders with
respect to any act or action (including failure to act) in connection with this Agreement or any
Other Document, Agent shall be entitled to refrain from such act or taking such action unless and
until Agent shall have received instructions from Required Lenders; and Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the foregoing, Lenders shall
not have any right of action whatsoever against Agent as a result of its acting or refraining from
acting hereunder in accordance with the instructions of Required Lenders.
14.6. Reliance. Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, statement, certificate, email, facsimile, telex, teletype
or telecopier message, cablegram, order or other document or telephone message believed by it to
be genuine and correct and to have been signed, sent or made by the proper person or entity, and,
with respect to all legal matters pertaining to this Agreement and the Other Documents and its
duties hereunder, upon advice of counsel selected by it. Agent may employ agents and attorneys-
in-fact and shall not be liable for the default or misconduct of any such agents or attorneys-in-fact
selected by Agent with reasonable care.
14.7. Notice of Default. Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder or under the Other Documents, unless
Agent has received notice from a Lender or Borrowing Agent referring to this Agreement or the
Other Documents, describing such Default or Event of Default and stating that such notice is a
“notice of default”. In the event that Agent receives such a notice, Agent shall give notice thereof
to Lenders. Agent shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by Required Lenders; provided, that, unless and until Agent shall have
received such directions, Agent may (but shall not be obligated to) take such action, or refrain
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from taking such action, with respect to such Default or Event of Default as it shall deem advisable
in the best interests of Lenders.
14.8. Indemnification. To the extent Agent is not reimbursed and indemnified by Loan
Parties, each Lender will reimburse and indemnify Agent in proportion to its respective portion of
the outstanding Advances and its respective Participation Commitments in the outstanding Letters
of Credit and outstanding Swing Loans (or, if no Advances are outstanding, pro rata according to
the percentage that its Revolving Commitment Amount constitutes the total aggregate Revolving
Commitment Amounts), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against Agent in performing its
duties hereunder, or in any way relating to or arising out of this Agreement or any Other Document;
provided that Lenders shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from
Agent’s gross (not mere) negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final non-appealable judgment).
14.9. Agent in its Individual Capacity. With respect to the obligation of Agent to lend
under this Agreement, the Advances made by it shall have the same rights and powers hereunder
as any other Lender and as if it were not performing the duties as Agent specified herein; and the
term “Lender” or any similar term shall, unless the context clearly otherwise indicates, include
Agent in its individual capacity as a Lender. Agent may engage in business with any Loan Party
as if it were not performing the duties specified herein, and may accept fees and other consideration
from any Loan Party for services in connection with this Agreement or otherwise without having
to account for the same to Lenders.
14.10. Delivery of Documents. To the extent Agent receives financial statements required
under Sections 9.7, 9.8, 9.9, 9.12 and 9.13 or Borrowing Base Certificates from any Loan Party
pursuant to the terms of this Agreement which any Loan Party is not obligated to deliver to each
Lender, Agent will promptly furnish such documents and information to Lenders.
14.11. Loan Parties Undertaking to Agent. Without prejudice to their respective
obligations to Lenders under the other provisions of this Agreement, each Loan Party hereby
undertakes with Agent to pay to Agent from time to time on demand all amounts from time to time
due and payable by it for the account of Agent or Lenders or any of them pursuant to this
Agreement to the extent not already paid. Any payment made pursuant to any such demand shall
pro tanto satisfy the relevant Loan Party’s obligations to make payments for the account of Lenders
or the relevant one or more of them pursuant to this Agreement.
14.12. No Reliance on Agent’s Customer Identification Program. To the extent the
Advances or this Agreement is, or becomes, syndicated in cooperation with other Lenders, each
Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or
assignees, may rely on Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s
customer identification program, or other obligations required or imposed under or pursuant to the
USA PATRIOT Act or the regulations thereunder, including the regulations contained in 31 CFR
103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other Anti-Terrorism
Law, including any programs involving any of the following items relating to or in connection
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with any of Loan Parties, their Affiliates or their agents, the Other Documents or the transactions
hereunder or contemplated hereby: (i) any identity verification procedures, (ii) any recordkeeping,
(iii) comparisons with government lists, (iv) customer notices or (v) other procedures required
under the CIP Regulations or such Anti-Terrorism Laws.
14.13. Other Agreements. Each of the Lenders agrees that it shall not, without the express
consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the request of
Agent, set off against the Obligations, any amounts owing by such Lender to any Loan Party or
any deposit accounts of any Loan Party now or hereafter maintained with such Lender. Anything
in this Agreement to the contrary notwithstanding, each of the Lenders further agrees that it shall
not, unless specifically requested to do so by Agent, take any action to protect or enforce its rights
arising out of this Agreement or the Other Documents, it being the intent of Lenders that any such
action to protect or enforce rights under this Agreement and the Other Documents shall be taken
in concert and at the direction or with the consent of Agent or Required Lenders.
XV. BORROWING AGENCY.
15.1. Borrowing Agency Provisions.
(a) Each Loan Party hereby irrevocably designates Borrowing Agent to be its
attorney and agent and in such capacity to (i) borrow, (ii) request advances, (iii) request the
issuance of Letters of Credit, (iv) sign and endorse notes, (v) execute and deliver all instruments,
documents, applications, security agreements, reimbursement agreements and letter of credit
agreements for Letters of Credit and all other certificates, notice, writings and further assurances
now or hereafter required hereunder, (vi) make elections regarding interest rates, (vii) give
instructions regarding Letters of Credit and agree with Issuer upon any amendment, extension or
renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this
Agreement and the Other Documents, all on behalf of and in the name such Loan Party or Loan
Parties, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in
accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a
borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Loan
Parties and at their request. Neither Agent nor any Lender shall incur liability to Loan Parties as
a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Loan
Party hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from
and against any and all liabilities, expenses, losses, damages and claims of damage or injury
asserted against Agent or any Lender by any Person arising from or incurred by reason of the
handling of the financing arrangements of Loan Parties as provided herein, reliance by Agent or
any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent
or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not
mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in
a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Loan Party shall make
payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation
and liability on the part of each Loan Party shall in no way be affected by any extensions, renewals
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and forbearance granted by Agent or any Lender to any Loan Party, failure of Agent or any Lender
to give any Loan Party notice of borrowing or any other notice, any failure of Agent or any Lender
to pursue or preserve its rights against any Loan Party, the release by Agent or any Lender of any
Collateral now or thereafter acquired from any Loan Party, and such agreement by each Loan Party
to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse
by Agent or any Lender to the other Loan Parties or any Collateral for such Loan Party’s
Obligations or the lack thereof. Each Loan Party waives all suretyship defenses.
15.2. Waiver of Subrogation. Each Loan Party expressly waives any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such
Loan Party may now or hereafter have against the other Loan Parties or any other Person directly
or contingently liable for the Obligations hereunder, or against or with respect to any other Loan
Parties’ property (including, without limitation, any property which is Collateral for the
Obligations), arising from the existence or performance of this Agreement, until termination of
this Agreement and repayment in full of the Obligations.
XVI. MISCELLANEOUS.
16.1. Governing Law. This Agreement and each Other Document (unless and except to
the extent expressly provided otherwise in any such Other Document), and all matters relating
hereto or thereto or arising herefrom or therefrom (whether arising under contract law, tort law or
otherwise) shall, in accordance with Section 5-1401 of the General Obligations Law of the State
of New York, be governed by and construed in accordance with the laws of the State of New York.
Any judicial proceeding brought by or against any Loan Party with respect to any of the
Obligations, this Agreement, the Other Documents or any related agreement may be brought in
any court of competent jurisdiction in the State of New York, United States of America, and, by
execution and delivery of this Agreement, each Loan Party accepts for itself and in connection
with its properties, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered thereby in connection with
this Agreement. Each Loan Party hereby waives personal service of any and all process upon it
and consents that all such service of process may be made by certified or registered mail (return
receipt requested) directed to Borrowing Agent at its address set forth in Section 16.6 and service
so made shall be deemed completed five (5) days after the same shall have been so deposited in
the mails of the United States of America, or, at Agent’s option, by service upon Borrowing Agent
which each Loan Party irrevocably appoints as such Loan Party’s Agent for the purpose of
accepting service within the State of New York. Nothing herein shall affect the right to serve
process in any manner permitted by law or shall limit the right of Agent or any Lender to bring
proceedings against any Loan Party in the courts of any other jurisdiction. Each Loan Party waives
any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any
defense based on lack of jurisdiction or venue or based upon forum non conveniens. Each Loan
Party waives the right to remove any judicial proceeding brought against such Loan Party in any
state court to any federal court. Any judicial proceeding by any Loan Party against Agent or any
Lender involving, directly or indirectly, any matter or claim in any way arising out of, related to
or connected with this Agreement or any related agreement, shall be brought only in a federal or
state court located in the County of New York, State of New York.
16.2. Entire Understanding.
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(a) This Agreement and the documents executed concurrently herewith contain
the entire understanding between each Borrower, Agent and each Lender and supersedes all prior
agreements and understandings, if any, relating to the subject matter hereof. Any promises,
representations, warranties or guarantees not herein contained and hereinafter made shall have no
force and effect unless in writing, signed by each Borrower’s, Agent’s and each Lender’s
respective officers. Neither this Agreement nor any portion or provisions hereof may be changed,
modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any
course of dealing, or in any manner other than by an agreement in writing, signed by the party to
be charged. Notwithstanding the foregoing, Agent may modify this Agreement or any of the Other
Documents for the purposes of completing missing content or correcting erroneous content of an
administrative nature, without the need for a written amendment, provided that the Agent shall
send a copy of any such modification to the Borrowers and each Lender (which copy may be
provided by electronic mail). Each Borrower acknowledges that it has been advised by counsel in
connection with the execution of this Agreement and Other Documents and is not relying upon
oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) Required Lenders, Agent with the consent in writing of Required Lenders,
and Loan Parties may, subject to the provisions of this Section 16.2(b), from time to time enter
into written supplemental agreements to this Agreement or the Other Documents executed by Loan
Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or
waiving in any manner the rights of Lenders, Agent or Loan Parties thereunder or the conditions,
provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent
specified in such written agreements; provided, however, that no such supplemental agreement
shall:
(i) increase the Revolving Commitment Percentage or Term Loan
Commitment Percentage, as applicable, or the maximum dollar amount of the Revolving
Commitment Amount or Term Loan Commitment Amount, as applicable, of any Lender without
the consent of such Lender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the Term or
the time for payment of principal or interest of any Advance (excluding the due date of any
mandatory prepayment of an Advance), or any fee payable to any Lender, or reduce the principal
amount of or the rate of interest borne by any Advances or reduce any fee payable to any Lender,
without the consent of each Lender directly affected thereby (except that Required Lenders may
elect to waive or rescind any imposition of the Default Rate under Section 3.1 or of default rates
of Letter of Credit fees under Section 3.2 (unless imposed by Agent));
(iii) increase the Maximum Revolving Advance Amount without the
consent of each Lender directly affected thereby;
(iv) alter the definition of the term Required Lenders or alter, amend or
modify this Section 16.2(b) without the consent of all Lenders;
(v) alter, amend or modify the provisions of Section 11.5 without the
consent of all Lenders;
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(vi) release any Collateral during any calendar year (other than in
accordance with the provisions of this Agreement) having an aggregate value in excess of
$1,000,000 without the consent of all Lenders;
(vii) change the rights and duties of Agent without the consent of all
Lenders;
(viii) subject to clause (e) below, permit any Revolving Advance to be
made if after giving effect thereto the total of the Revolving Advances plus the Swing Loans plus
the Maximum Undrawn Amount of all Letters of Credit outstanding hereunder would exceed the
Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and
ten percent (110%) of the Formula Amount without the consent of each Lender directly affected
thereby;
(ix) increase the Advance Rates above the Advance Rates in effect on
the Closing Date without the consent of each Lender directly affected thereby; or
(x) release any Loan Party without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Lender and
shall be binding upon Loan Parties, Lenders and Agent and all future holders of the Obligations.
In the case of any waiver, Loan Parties, Agent and Lenders shall be restored to their former
positions and rights, and any Event of Default waived shall be deemed to be cured and not
continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of
Default (whether or not the subsequent Event of Default is the same as the Event of Default which
was waived), or impair any right consequent thereon.
(d) In the event that Agent requests the consent of a Lender pursuant to this
Section 16.2 and such consent is denied, then Agent may, at its option, require such Lender to
assign its interest in the Advances to Agent or to another Lender or to any other Person designated
by Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount
thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall
be paid when collected from Loan Parties. In the event Agent elects to require any Lender to
assign its interest to Agent or to the Designated Lender, Agent will so notify such Lender in writing
within forty five (45) days following such Lender’s denial, and such Lender will assign its interest
to Agent or the Designated Lender no later than five (5) days following receipt of such notice
pursuant to a Commitment Transfer Supplement executed by such Lender, Agent or the
Designated Lender, as appropriate, and Agent.
(e) Notwithstanding (i) the existence of a Default or an Event of Default,
(ii) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not
been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been
terminated for any reason, or (iii) any other contrary provision of this Agreement, Agent may at
its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving
Advances plus the outstanding Swing Loans plus the Maximum Undrawn Amount of all
outstanding Letters of Credit at any time to exceed the Formula Amount by up to ten percent (10%)
of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula
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Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula
Loans, Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-
Formula Loans in accordance with their respective Revolving Commitment Percentages, and such
Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for
Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does permit Out-
of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits
of Section 2.1(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its
Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent
hereunder shall not preclude involuntary overadvances that may result from time to time due to
the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not
limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible
Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce
outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are
made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding
Revolving Advances plus the outstanding Swing Loans plus the Maximum Undrawn Amount of
all outstanding Letters of Credit to exceed the Formula Amount by more than ten percent (10%),
Agent shall use its efforts to have Loan Parties decrease such excess in as expeditious a manner as
is practicable under the circumstances and not inconsistent with the reason for such excess.
Revolving Advances made after Agent has determined the existence of involuntary overadvances
shall be deemed to be involuntary overadvances and shall be decreased in accordance with the
preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other
Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-
of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be
Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights
(including accrual of interest) and remedies of a Lender holding a Revolving Commitment under
this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving
Advances permitted above in this Section 16.2, Agent is hereby authorized by Loan Parties and
Lenders, at any time in Agent’s sole discretion, regardless of (i) the existence of a Default or an
Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section
8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances
hereunder have been terminated for any reason, or (iii) any other contrary provision of this
Agreement, to make Revolving Advances to Loan Parties on behalf of Lenders which Agent, in
its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the
Collateral, or any portion thereof, (b) to enhance the likelihood of, or maximize the amount of,
repayment of the Advances and other Obligations, or (c) to pay any other amount chargeable to
Loan Parties pursuant to the terms of this Agreement (collectively, the “Protective Advances”).
Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances
and effect a settlement with Agent therefor upon demand of Agent in accordance with their
respective Revolving Commitment Percentages. To the extent any Protective Advances are not
actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective
Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to
Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a
Lender holding a Revolving Commitment under this Agreement and the Other Documents with
respect to such Revolving Advances.
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16.3. Successors and Assigns; Participations; New Lenders.
(a) This Agreement shall be binding upon and inure to the benefit of Loan
Parties, Agent, each Lender, all future holders of the Obligations and their respective successors
and assigns, except that no Loan Party may assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of Agent and each Lender.
(b) Each Loan Party acknowledges that in the regular course of commercial
banking business one or more Lenders may at any time and from time to time sell participating
interests in the Advances to other Persons (each such transferee or purchaser of a participating
interest, a “Participant”). Each Participant may exercise all rights of payment (including rights of
set-off) with respect to the portion of such Advances held by it or other Obligations payable
hereunder as fully as if such Participant were the direct holder thereof provided that (i) Loan Parties
shall not be required to pay to any Participant more than the amount which it would have been
required to pay to Lender which granted an interest in its Advances or other Obligations payable
hereunder to such Participant had such Lender retained such interest in the Advances hereunder or
other Obligations payable hereunder unless the sale of the participation to such Participant is made
with Loan Party’s prior written consent, and (ii) in no event shall Loan Parties be required to pay
any such amount arising from the same circumstances and with respect to the same Advances or
other Obligations payable hereunder to both such Lender and such Participant. Each Loan Party
hereby grants to any Participant a continuing security interest in any deposits, moneys or other
property actually or constructively held by such Participant as security for the Participant’s interest
in the Advances.
(c) Any Lender, with the consent of Agent, may sell, assign or transfer all or
any part of its rights and obligations under or relating to Revolving Advances and/or Term Loans
under this Agreement and the Other Documents to one or more additional Persons and one or more
additional Persons may commit to make Advances hereunder (each a “Purchasing Lender”), in
minimum amounts of not less than $1,500,000, pursuant to a Commitment Transfer Supplement,
executed by a Purchasing Lender, the transferor Lender, and Agent and delivered to Agent for
recording, provided, however, that each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to each of the Revolving Advances and Term Loans under this Agreement in which such
Lender has an interest. Upon such execution, delivery, acceptance and recording, from and after
the transfer effective date determined pursuant to such Commitment Transfer Supplement, (i)
Purchasing Lender thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and obligations of a Lender thereunder with a
Revolving Commitment Percentage and/or Term Loan Commitment Percentage, as applicable as
set forth therein, and (ii) the transferor Lender thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its obligations under this Agreement, the
Commitment Transfer Supplement creating a novation for that purpose. Such Commitment
Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Lender and the resulting adjustment of
the Revolving Commitment Percentages and/or Term Loan Commitment Percentages as
applicable arising from the purchase by such Purchasing Lender of all or a portion of the rights
and obligations of such transferor Lender under this Agreement and the Other Documents. Each
Loan Party hereby consents to the addition of such Purchasing Lender and the resulting adjustment
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of the Revolving Commitment Percentages and/or Term Loan Commitment Percentages as
applicable arising from the purchase by such Purchasing Lender of all or a portion of the rights
and obligations of such transferor Lender under this Agreement and the Other Documents. Loan
Parties shall execute and deliver such further documents and do such further acts and things in
order to effectuate the foregoing; provided, however, that the consent of Loan Parties (such consent
not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such assignment is to a Permitted
Assignee; provided that Loan Parties shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to Agent within five (5) Business Days after having
received prior notice thereof.
(d) Any Lender, with the consent of Agent which shall not be unreasonably
withheld or delayed, may directly or indirectly sell, assign or transfer all or any portion of its rights
and obligations under or relating to Revolving Advances and/or Term Loans under this Agreement
and the Other Documents to an entity, whether a corporation, partnership, trust, limited liability
company or other entity that (i) is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its business and (ii) is
administered, serviced or managed by the assigning Lender or an Affiliate of such Lender (a
“Purchasing CLO” and together with each Participant and Purchasing Lender, each a “Transferee”
and collectively the “Transferees”), pursuant to a Commitment Transfer Supplement modified as
appropriate to reflect the interest being assigned (“Modified Commitment Transfer Supplement”),
executed by any intermediate purchaser, the Purchasing CLO, the transferor Lender, and Agent as
appropriate and delivered to Agent for recording. Upon such execution and delivery, from and
after the transfer effective date determined pursuant to such Modified Commitment Transfer
Supplement, (i) Purchasing CLO thereunder shall be a party hereto and, to the extent provided in
such Modified Commitment Transfer Supplement, have the rights and obligations of a Lender
thereunder and (ii) the transferor Lender thereunder shall, to the extent provided in such Modified
Commitment Transfer Supplement, be released from its obligations under this Agreement, the
Modified Commitment Transfer Supplement creating a novation for that purpose. Such Modified
Commitment Transfer Supplement shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Purchasing CLO. Each Loan Party
hereby consents to the addition of such Purchasing CLO. Loan Parties shall execute and deliver
such further documents and do such further acts and things in order to effectuate the foregoing.
(e) Agent shall maintain at its address a copy of each Commitment Transfer
Supplement and Modified Commitment Transfer Supplement delivered to it and a register (the
“Register”) for the recordation of the names and addresses of each Lender and the outstanding
principal, accrued and unpaid interest and other fees due hereunder. The entries in the Register
shall be conclusive, in the absence of manifest error, and each Loan Party, Agent and Lenders may
treat each Person whose name is recorded in the Register as the owner of the Advance recorded
therein for the purposes of this Agreement. The Register shall be available for inspection by
Borrowing Agent or any Lender at any reasonable time and from time to time upon reasonable
prior notice. Agent shall receive a fee in the amount of $3,500 payable by the applicable
Purchasing Lender and/or Purchasing CLO upon the effective date of each transfer or assignment
(other than to an intermediate purchaser) to such Purchasing Lender and/or Purchasing CLO.
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(f) Each Loan Party authorizes each Lender to disclose to any Transferee and
any prospective Transferee any and all financial information in such Lender’s possession
concerning such Loan Party which has been delivered to such Lender by or on behalf of such Loan
Party pursuant to this Agreement or in connection with such Lender’s credit evaluation of such
Loan Party.
(g) Notwithstanding anything to the contrary contained in this Agreement, any
Lender may at any time and from time to time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
16.4. Application of Payments. Agent shall have the continuing and exclusive right to
apply or reverse and re-apply any payment and any and all proceeds of Collateral to any portion
of the Obligations. To the extent that any Loan Party makes a payment or Agent or any Lender
receives any payment or proceeds of the Collateral for any Loan Party’s benefit, which are
subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid
to a trustee, debtor in possession, receiver, custodian or any other party under any bankruptcy law,
common law or equitable cause, then, to such extent, the Obligations or part thereof intended to
be satisfied shall be revived and continue as if such payment or proceeds had not been received by
Agent or such Lender.
16.5. Indemnity. Each Loan Party shall defend, protect, indemnify, pay and save
harmless Agent, Issuer, each Lender and each of their respective officers, directors, Affiliates,
attorneys, employees and agents (each an “Indemnified Party”) for and from and against any and
all claims, demands, liabilities, obligations, losses, damages, penalties, fines, actions, judgments,
suits, and documented costs, charges, expenses and disbursements of any kind or nature
whatsoever (including reasonable and documented fees and disbursements of counsel (which shall
be limited to, for the Indemnified Parties as a whole: one primary counsel, one local counsel in
each reasonably necessary and relevant jurisdiction, one specialty counsel for each reasonably
necessary and relevant specialty and one or more additional counsel if one or more conflicts of
interest arise and shall exclude allocated costs of in-house counsel)) (collectively, “Claims”) which
may be imposed on, incurred by, or asserted against any Indemnified Party in arising out of or in
any way relating to or as a consequence, direct or indirect, of: (i) this Agreement, the Other
Documents, the Advances and other Obligations and/or the transactions contemplated hereby
including the Transactions, (ii) any action or failure to act or action taken only after delay or the
satisfaction of any conditions by any Indemnified Party in connection with and/or relating to the
negotiation, execution, delivery or administration of the Agreement and the Other Documents, the
credit facilities established hereunder and thereunder and/or the transactions contemplated hereby
including the Transactions, (iii) any Loan Party’s failure to observe, perform or discharge any of
its covenants, obligations, agreements or duties under or breach of any of the representations or
warranties made in this Agreement and the Other Documents, (iv) the enforcement of any of the
rights and remedies of Agent, Issuer or any Lender under the Agreement and the Other Documents,
(v) any threatened or actual imposition of fines or penalties, or disgorgement of benefits, for
violation of any Anti-Terrorism Law by any Loan Party, any Affiliate or Subsidiary of any Loan
Parties, and (vi) any claim, litigation, proceeding or investigation instituted or conducted by any
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Governmental Body or instrumentality or any other Person with respect to any aspect of, or any
transaction contemplated by, or referred to in, or any matter related to, this Agreement or the Other
Documents, whether or not Agent or any Lender is a party thereto; in each case, except to the
extent that such Claim is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from (i) such Indemnified Party’s own gross negligence, bad faith or
willful misconduct or that of such Indemnified Party’s respective officers, directors, employees,
advisors or agents, (ii) the material breach of such Indemnified Party’s obligations (or the
obligations of such Indemnified Person’s respective officers, directors, employees, advisors and
agents) under the Loan Documents, the Transactions or any other transactions contemplated
hereby or thereby, (iii) disputes arising solely among the Indemnified Parties and that do not
involve any act or omission by Borrower, its Subsidiaries or its Affiliates. Without limiting the
generality of any of the foregoing, each Loan Party shall defend, protect, indemnify, pay and save
harmless each Indemnified Party from (x) any Claims which may be imposed on, incurred by, or
asserted against any Indemnified Party arising out of or in any way relating to or as a consequence,
direct or indirect, of the issuance of any Letter of Credit hereunder and (y) any Claims which may
be imposed on, incurred by, or asserted against any Indemnified Party under any Environmental
Laws with respect to or in connection with the Real Property, any Hazardous Discharge, the
presence of any Hazardous Materials affecting the Real Property (whether or not the same
originates or emerges from the Real Property or any contiguous real estate), including any Claims
consisting of or relating to the imposition or assertion of any Lien on any of the Real Property
under any Environmental Laws and any loss of value of the Real Property as a result of the
foregoing except to the extent such loss, liability, damage and expense is attributable to any
Hazardous Discharge resulting from actions on the part of Agent or any Lender. Loan Parties’
obligations under this Section 16.5 shall arise upon the discovery of the presence of any Hazardous
Materials at the Real Property, whether or not any federal, state, or local environmental agency
has taken or threatened any action in connection with the presence of any Hazardous Materials, in
each such case except to the extent that any of the foregoing is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from (i) such Indemnified Party’s
own gross negligence, bad faith or willful misconduct or that of such Indemnified Party’s
respective officers, directors, employees, advisors or agents, (ii) the material breach of such
Indemnified Party’s obligations (or the obligations of such Indemnified Person’s respective
officers, directors, employees, advisors and agents) under the Loan Documents, the Transactions
or any other transactions contemplated hereby or thereby, (iii) disputes arising solely among the
Indemnified Parties and that do not involve any act or omission by Borrower, its Subsidiaries or
its Affiliates. Without limiting the generality of the foregoing, this indemnity shall extend to any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever (including reasonable and documented fees and
disbursements of counsel) (which shall be limited to, for the Indemnified Parties as a whole: one
primary counsel, one local counsel in each reasonably necessary and relevant jurisdiction, one
specialty counsel for each reasonably necessary and relevant specialty and one or more additional
counsel if one or more conflicts of interest arise and shall exclude allocated costs of in-house
counsel) asserted against or incurred by any of the Indemnified Parties by any Person under any
Environmental Laws or similar laws by reason of any Loan Party’s or any other Person’s failure
to comply with laws applicable to solid or hazardous waste materials, including Hazardous
Materials and Hazardous Waste, or other Toxic Substances. Additionally, if any taxes (excluding
Excluded Taxes and taxes imposed upon or measured solely by the net income of Agent and
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Lenders, but including any intangibles taxes, stamp tax, recording tax or franchise tax) shall be
payable by Agent, Lenders or Loan Parties on account of the execution or delivery of this
Agreement, or the execution, delivery, issuance or recording of any of the Other Documents, or
the creation or repayment of any of the Obligations hereunder, by reason of any Applicable Law
now or hereafter in effect, Loan Parties will pay (or will promptly reimburse Agent and Lenders
for payment of) all such taxes, including interest and penalties thereon, and will indemnify and
hold the Indemnified Parties harmless from and against all liability in connection therewith; in
each case, except to the extent that such Claim is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from (i) such Indemnified Party’s own gross
negligence, bad faith or willful misconduct or that of such Indemnified Party’s respective officers,
directors, employees, advisors or agents, (ii) the material breach of such Indemnified Party’s
obligations (or the obligations of such Indemnified Person’s respective officers, directors,
employees, advisors and agents) under the Loan Documents, the Transactions or any other
transactions contemplated hereby or thereby, (iii) disputes arising solely among the Indemnified
Parties and that do not involve any act or omission by Borrower, its Subsidiaries or its Affiliates.
16.6. Notice. Any notice or request hereunder may be given to Borrowing Agent or any
Loan Party or to Agent or any Lender at their respective addresses set forth below or at such other
address as may hereafter be specified in a notice designated as a notice of change of address under
this Section 16.6. Any notice, request, demand, direction or other communication (for purposes
of this Section 16.6 only, a “Notice”) to be given to or made upon any party hereto under any
provision of this Agreement shall be given or made by telephone or in writing (which includes by
means of electronic transmission (i.e., “e-mail”) or facsimile transmission or by setting forth such
Notice on a website to which Loan Parties are directed (an “Internet Posting”) if Notice of such
Internet Posting (including the information necessary to access such site) has previously been
delivered to the applicable parties hereto by another means set forth in this Section 16.6) in
accordance with this Section 16.6. Any such Notice must be delivered to the applicable parties
hereto at the addresses and numbers set forth under their respective names on this Section 16.6
hereof or in accordance with any subsequent unrevoked Notice from any such party that is given
in accordance with this Section 16.6. Any Notice shall be effective:
(a) In the case of hand-delivery, when delivered;
(b) If given by mail, four (4) days after such Notice is deposited with the United
States Postal Service, with first-class postage prepaid, return receipt requested;
(c) In the case of a telephonic Notice, when a party is contacted by telephone,
if delivery of such telephonic Notice is confirmed no later than the next Business Day by hand
delivery, a facsimile or electronic transmission, an Internet Posting or an overnight courier delivery
of a confirmatory Notice (received at or before noon on such next Business Day);
(d) In the case of a facsimile transmission, when sent to the applicable party’s
facsimile machine’s telephone number, if the party sending such Notice receives confirmation of
the delivery thereof from its own facsimile machine;
(e) In the case of electronic transmission, when actually received;
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(f) In the case of an Internet Posting, upon delivery of a Notice of such posting
(including the information necessary to access such site) by another means set forth in this Section
16.6; and
(g) If given by any other means (including by overnight courier), when actually
received.
Any Lender giving a Notice to Borrowing Agent or any Loan Party shall concurrently send
a copy thereof to Agent, and Agent shall promptly notify the other Lenders of its receipt of such
Notice.
(A) If to Agent or PNC at:
PNC Bank, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ & Hessen LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-478-7400
(B) If to a Lender other than Agent, as specified on the signature pages hereof.
(C) If to Borrowing Agent or any Loan Party:
CCA Industries, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
16.7. Survival. The obligations of Loan Parties under Sections 2.2(f), 2.2(g), 2.2(h), 3.7,
3.8, 3.9, 3.10, 16.5 and 16.9 and the obligations of Lenders under Sections 2.2, 2.15(b), 2.16, 2.18,
2.19, 14.8 and 16.5, shall survive termination of this Agreement and the Other Documents and
payment in full of the Obligations.
16.8. Severability. If any part of this Agreement is contrary to, prohibited by, or deemed
invalid under Applicable Laws, such provision shall be inapplicable and deemed omitted to the
extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible.
16.9. Expenses. Loan Parties shall pay (i) all reasonable and documented out-of-pocket
expenses incurred by Agent and its Affiliates (including the reasonable and documented fees,
charges and disbursements of counsel for Agent with Agent applying the $40,000 legal fee deposit
previously received to partially pay such legal fees, charges and disbursements, (which shall be
limited to, for the Agent and the Lenders as a whole: one primary counsel, one local counsel in
each reasonably necessary and relevant jurisdiction, one specialty counsel for each reasonably
necessary and relevant specialty and one or more additional counsel if one or more conflicts of
interest arise and shall exclude allocated costs of in-house counsel), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the Other Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket expenses incurred
by Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit
or any demand for payment thereunder, (iii) all reasonable and documented out-of-pocket expenses
incurred by Agent, any Lender or Issuer (including the fees, charges and disbursements of any
counsel for Agent, any Lender or Issuer (which shall be limited to, for Agent and the Lenders as a
whole: one primary counsel, one local counsel in each reasonably necessary and relevant
jurisdiction, one specialty counsel for each reasonably necessary and relevant specialty and one or
more additional counsel if one or more conflicts of interest arise and shall exclude allocated costs
of in-house counsel)), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the Other Documents, including its rights under this Section
16.9, or (B) in connection with the Advances made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit, and (iv) all reasonable and documented out-of-pocket
expenses of Agent’s regular employees and agents engaged periodically to perform audits of the
any Loan Party’s or any Loan Party’s Affiliate’s or Subsidiary’s books, records and business
properties.
16.10. Injunctive Relief. Each Loan Party recognizes that, in the event any Loan Party
fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, or
threatens to fail to perform, observe or discharge such obligations or liabilities, any remedy at law
may prove to be inadequate relief to Lenders; therefor, Agent, if Agent so requests, shall be entitled
to temporary and permanent injunctive relief in any such case without the necessity of proving that
actual damages are not an adequate remedy.
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16.11. Consequential Damages. Neither Agent nor any Lender, nor any agent or attorney
for any of them, shall be liable to any other party hereto (or any Affiliate of any such Person) for
indirect, punitive, exemplary or consequential damages arising from any breach of contract, tort
or other wrong relating to the establishment, administration or collection of the Obligations or as
a result of any transaction contemplated under this Agreement or any Other Document.
16.12. Captions. The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as part of this Agreement.
16.13. Counterparts; Facsimile Signatures. This Agreement may be executed in any
number of and by different parties hereto on separate counterparts, all of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile or electronic transmission (including email
transmission of a PDF image) shall be deemed to be an original signature hereto.
16.14. Construction. The parties acknowledge that each party and its counsel have
reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments, schedules or exhibits thereto.
16.15. Confidentiality; Sharing Information. Agent, each Lender and each Transferee
shall hold all non-public information obtained by Agent, such Lender or such Transferee pursuant
to the requirements of this Agreement in accordance with Agent’s, such Lender’s and such
Transferee’s customary procedures for handling confidential information of this nature; provided,
however, Agent, each Lender and each Transferee may disclose such confidential information (a)
to its examiners, Affiliates, outside auditors, counsel and other professional advisors (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such information and instructed to keep such information confidential), (b) subject to an
agreement containing provisions substantially the same as those of this Section 16.15, to Agent,
any Lender or to any prospective Transferees, and (c) as required or requested by any
Governmental Body or representative thereof or pursuant to legal process; provided, further that
(i) unless specifically prohibited by Applicable Law, Agent, each Lender and each Transferee shall
use its reasonable best efforts prior to disclosure thereof, to notify the applicable Loan Party of the
applicable request for disclosure of such non-public information (A) by a Governmental Body or
representative thereof (other than any such request in connection with an examination of the
financial condition of a Lender or a Transferee by such Governmental Body) or (B) pursuant to
legal process and (ii) in no event shall Agent, any Lender or any Transferee be obligated to return
any materials furnished by any Loan Party other than those documents and instruments in
possession of Agent or any Lender in order to perfect its Lien on the Collateral once the
Obligations have been paid in full and this Agreement has been terminated. Each Loan Party
acknowledges that from time to time financial advisory, investment banking and other services
may be offered or provided to such Loan Party or one or more of its Affiliates (in connection with
this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such
Lender and each Loan Party hereby authorizes each Lender to share any information delivered to
such Lender by such Loan Party and its Subsidiaries pursuant to this Agreement, or in connection
with the decision of such Lender to enter into this Agreement, to any such Subsidiary or Affiliate
of such Lender, it being understood that any such Subsidiary or Affiliate of any Lender receiving
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such information shall be bound by the provisions of this Section 16.15 as if it were a Lender
hereunder. Such authorization shall survive the repayment of the other Obligations and the
termination of this Agreement. Notwithstanding any non-disclosure agreement or similar
document executed by Agent in favor of any Loan Party or any of any Loan Party’s affiliates, the
provisions of this Agreement shall supersede such agreements.
16.16. Publicity. Each Loan Party and each Lender hereby authorizes Agent to make
appropriate announcements of the financial arrangement entered into among Loan Parties, Agent
and Lenders, including announcements which are commonly known as tombstones, in such
publications and to such selected parties as Agent shall in its sole and absolute discretion deem
appropriate.
16.17. Certifications From Banks and Participants; USA PATRIOT Act.
(a) Each Lender or assignee or participant of a Lender that is not incorporated
under the Laws of the United States of America or a state thereof (and is not excepted from the
certification requirement contained in Section 313 of the USA PATRIOT Act and the applicable
regulations because it is both (i) an affiliate of a depository institution or foreign bank that
maintains a physical presence in the United States or foreign country, and (ii) subject to supervision
by a banking authority regulating such affiliated depository institution or foreign bank) shall
deliver to the Agent the certification, or, if applicable, recertification, certifying that such Lender
is not a “shell” and certifying to other matters as required by Section 313 of the USA PATRIOT
Act and the applicable regulations: (1) within ten (10) days after the Closing Date, and (2) as such
other times as are required under the USA PATRIOT Act.
(b) The USA PATRIOT Act requires all financial institutions to obtain, verify
and record certain information that identifies individuals or business entities which open an
“account” with such financial institution. Consequently, Lender may from time to time request,
and each Loan Party shall provide to Lender, such Loan Party’s name, address, tax identification
number and/or such other identifying information as shall be necessary for Lender to comply with
the USA PATRIOT Act and any other Anti-Terrorism Law.
16.18. Anti-Terrorism Laws.
(a) Each Loan Party represents and warrants that (i) no Covered Entity is a
Sanctioned Person and (ii) no Covered Entity, either in its own right or through any third party,
(A) has any of its assets in a Sanctioned Country or in the possession, custody or control of a
Sanctioned Person in violation of any Anti-Terrorism Law; (B) does business in or with, or derives
any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned
Person in violation of any Anti-Terrorism Law; or (C) engages in any dealings or transactions
prohibited by any Anti-Terrorism Law.
(b) Each Loan Party covenants and agrees that (i) no Covered Entity will
become a Sanctioned Person, (ii) no Covered Entity, either in its own right or through any third
party, will (B) have any of its assets in a Sanctioned Country or in the possession, custody or
control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) do business in or with,
or derive any of its income from investments in or transactions with, any Sanctioned Country or
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Sanctioned Person in violation of any Anti-Terrorism Law; (C) engage in any dealings or
transactions prohibited by any Anti-Terrorism Law or (D) use the Advances to fund any operations
in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or
Sanctioned Person in violation of any Anti-Terrorism Law, (iii) the funds used to repay the
Obligations will not be derived from any unlawful activity, (iv) each Covered Entity shall comply
with all Anti-Terrorism Laws and (v) the Loan Parties shall promptly notify the Agent in writing
upon the occurrence of a Reportable Compliance Event.
XVII. GUARANTY.
17.1. Guaranty. Each Guarantor hereby unconditionally guarantees, as a primary obligor
and not merely as a surety, jointly and severally with each other Guarantor when and as due,
whether at maturity, by acceleration, by notice of prepayment or otherwise, the due and punctual
performance of all Obligations; provided that with respect to Obligations under or in respect of
any Swap Obligation, the foregoing guarantee shall only be effective to the extent that such
Guarantor is an Eligible Contract Participant at the time such Swap Obligation is entered into and
such Obligations and such guarantee thereof are not Excluded Hedge Liabilities). Each payment
made by any Guarantor pursuant to this Guaranty shall be made in lawful money of the United
States in immediately available funds.
17.2. Waivers. Each Guarantor hereby absolutely, unconditionally and irrevocably
waives (i) promptness, diligence, notice of acceptance, notice of presentment of payment and any
other notice hereunder, (ii) demand of payment, protest, notice of dishonor or nonpayment, notice
of the present and future amount of the Obligations and any other notice with respect to the
Obligations, (iii) any requirement that Agent, any Lender protect, secure, perfect or insure any
security interest or Lien on any property subject thereto or exhaust any right or take any action
against any other Loan Party, or any Person or any Collateral, (iv) any other action, event or
precondition to the enforcement hereof or the performance by each such Guarantor of the
Obligations, and (v) any defense arising by any lack of capacity or authority or any other defense
of any Loan Party or any notice, demand or defense by reason of cessation from any cause of
Obligations other than payment and performance in full of the Obligations by the Loan Parties and
any defense that any other guarantee or security was or was to be obtained by Agent.
17.3. No Defense. No invalidity, irregularity, voidableness, voidness or unenforceability
of this Agreement or any Other Document or any other agreement or instrument relating thereto,
or of all or any part of the Obligations or of any collateral security therefor shall affect, impair or
be a defense hereunder.
17.4. Guaranty of Payment. The Guaranty hereunder is one of payment and performance,
not collection, and the obligations of each Guarantor hereunder are independent of the Obligations
of the other Loan Parties, and a separate action or actions may be brought and prosecuted against
any Guarantor to enforce the terms and conditions of this Article XVII, irrespective of whether
any action is brought against any other Loan Party or other Persons or whether any other Loan
Party or other Persons are joined in any such action or actions. Each Guarantor waives any right
to require that any resort be had by Agent or any Lender to any security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of Agent or any Lender
in favor of any Loan Party or any other Person. No election to proceed in one form of action or
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proceedings, or against any Person, or on any Obligations, shall constitute a waiver of Agent’s
right to proceed in any other form of action or proceeding or against any other Person unless Agent
has expressed any such right in writing. Without limiting the generality of the foregoing, no action
or proceeding by Agent against any Loan Party under any document evidencing or securing
indebtedness of any Loan Party to Agent shall diminish the liability of any Guarantor hereunder,
except to the extent Agent receives actual payment on account of Obligations by such action or
proceeding, notwithstanding the effect of any such election, action or proceeding upon the right of
subrogation of any Guarantor in respect of any Loan Party.
17.5. Liabilities Absolute. The liability of each Guarantor hereunder shall be absolute,
unlimited and unconditional and shall not be subject to any reduction, limitation, impairment,
discharge or termination for any reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any claim, defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of any other Obligation or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor shall not be discharged or impaired, released, limited
or otherwise affected by:
(a) any change in the manner, place or terms of payment or performance, and/or
any change or extension of the time of payment or performance of, release, renewal or alteration
of, or any new agreements relating to any Obligation, any security therefor, or any liability incurred
directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other
modification of, or any consent to departure from, this Agreement or any Other Document,
including any increase in the Obligations resulting from the extension of additional credit to any
Loan Party or otherwise;
(b) any sale, exchange, release, surrender, loss, abandonment, realization upon
any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing,
all or any of the Obligations, and/or any offset there against, or failure to perfect, or continue the
perfection of, any Lien in any such property, or delay in the perfection of any such Lien, or any
amendment or waiver of or consent to departure from any other guaranty for all or any of the
Obligations;
(c) the failure of Agent or any Lender to assert any claim or demand or to
enforce any right or remedy against any Loan Party or any other Loan Party or any other Person
under the provisions of this Agreement or any Other Document or any other document or
instrument executed and delivered in connection herewith or therewith;
(d) any settlement or compromise of any Obligation, any security therefor or
any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or
hereof, and any subordination of the payment of all or any part thereof to the payment of any
obligation (whether due or not) of any Loan Party to creditors of any Loan Party other than any
other Loan Party;
(e) any manner of application of Collateral, or proceeds thereof, to all or any of
the Obligations, or any manner of sale or other disposition of any Collateral for all or any of the
Obligations or any other assets of any Loan Party; and
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(f) any other agreements or circumstance of any nature whatsoever that may or
might in any manner or to any extent vary the risk of any Guarantor, or that might otherwise at
law or in equity constitute a defense available to, or a discharge of, the Guaranty hereunder and/or
the obligations of any Guarantor, or a defense to, or discharge of, any Loan Party or any other
Person or party hereto or the Obligations or otherwise with respect to the Advances or other
financial accommodations to Loan Parties pursuant to this Agreement and/or the Other
Documents.
17.6. Waiver of Notice. Agent shall have the right to do any of the above without notice
to or the consent of any Guarantor and each Guarantor expressly waives any right to notice of,
consent to, knowledge of and participation in any agreements relating to any of the above or any
other present or future event relating to Obligations whether under this Agreement or otherwise or
any right to challenge or question any of the above and waives any defenses of such Guarantor
which might arise as a result of such actions.
17.7. Agent’s Discretion. Agent may at any time and from time to time (whether prior
to or after the revocation or termination of this Agreement) without the consent of, or notice to,
any Guarantor, and without incurring responsibility to any Guarantor or impairing or releasing the
Obligations, apply any sums by whomsoever paid or howsoever realized to any Obligations
regardless of what Obligations remain unpaid.
17.8. Reinstatement.
(a) The Guaranty provisions herein contained shall continue to be effective or
be reinstated, as the case may be, if claim is ever made upon Agent or any Lender for repayment
or recovery of any amount or amounts received by such Person in payment or on account of any
of the Obligations and such Person repays all or part of said amount for any reason whatsoever,
including, without limitation, by reason of any judgment, decree or order of any court or
administrative body having jurisdiction over such Person or the respective property of each, or any
settlement or compromise of any claim effected by such Person with any such claimant (including
any Loan Party); and in such event each Guarantor hereby agrees that any such judgment, decree,
order, settlement or compromise or other circumstances shall be binding upon such Guarantor,
notwithstanding any revocation hereof or the cancellation of any note or other instrument
evidencing any Obligation, and each Guarantor shall be and remain liable to Agent and/or Lenders
for the amount so repaid or recovered to the same extent as if such amount had never originally
been received by such Person(s).
(b) Agent shall not be required to marshal any assets in favor of any Guarantor,
or against or in payment of Obligations.
(c) No Guarantor shall be entitled to claim against any present or future security
held by Agent from any Person for Obligations in priority to or equally with any claim of Agent,
or assert any claim for any liability of any Loan Party to any Guarantor in priority to or equally
with claims of Agent for Obligations, and no Guarantor shall be entitled to compete with Agent
with respect to, or to advance any equal or prior claim to any security held by Agent for
Obligations.
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(d) If any Loan Party makes any payment to Agent, which payment is wholly
or partly subsequently invalidated, declared to be fraudulent or preferential, set aside or required
to be repaid to any Person under any federal or provincial statute or at common law or under
equitable principles, then to the extent of such payment, the Obligation intended to be paid shall
be revived and continued in full force and effect as if the payment had not been made, and the
resulting revived Obligation shall continue to be guaranteed, uninterrupted, by each Guarantor
hereunder.
(e) All present and future monies payable by any Loan Party to any Guarantor,
whether arising out of a right of subrogation or otherwise, are assigned to Agent for its benefit and
for the ratable benefit of Lenders as security for such Guarantor’s liability to Agent and Lenders
hereunder and are postponed and subordinated to Agent’s prior right to payment in full of
Obligations. Except to the extent prohibited otherwise by this Agreement, all monies received by
any Guarantor from any Loan Party shall be held by such Guarantor as agent and trustee for Agent.
This assignment, postponement and subordination shall only terminate when the Obligations are
paid in full in cash and this Agreement is irrevocably terminated.
(f) Each Loan Party acknowledges this assignment, postponement and
subordination and, except as otherwise set forth herein, agrees to make no payments to any
Guarantor without the prior written consent of Agent. Each Loan Party agrees to give full effect
to the provisions hereof.
Each of the parties has signed this Agreement as of the day and year first above written.
CCA INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
PNC BANK, NATIONAL ASSOCIATION,
As Lender and as Agent
By: /s/ ▇▇▇▇▇ Raphaels
Name: ▇▇▇▇▇ Raphaels
Title: Senior Vice President
Revolving Commitment Percentage: 100%
Revolving Commitment Amount: $4,500,000.00
Term Loan Commitment Percentage: 100%
Term Loan Commitment Amount: $1,500,000.00