Common use of Existing Term Loan Clause in Contracts

Existing Term Loan. (1) Subject to the terms and conditions hereof, each Lender with an Existing Term Loan Commitment agrees that the loans comprising the “Term Loan B” under, and as defined in, the Prior Credit Agreement shall remain outstanding on and after the Closing Date as term loans (collectively, the “Existing Term Loan”) made pursuant to this Agreement, and such loans shall be deemed to be made in satisfaction of its obligation to make its Pro Rata Share of the Existing Term Loan on the Closing Date. Upon request by any Lender with a Existing Term Loan Commitment, each Borrower shall execute and deliver to such Lender a promissory note substantially in the form of Exhibit 1.1(b)(i) (each an “Existing Term Loan Note” and collectively the “Existing Term Loan Notes”). Each Existing Term Loan Note (or, if an Existing Term Loan Note is not requested, this Agreement) shall represent the joint and several obligation of Borrowers to pay the applicable Existing Term Loan Commitment, together with interest hereon as prescribed in Section 1.5. (2) Borrowers shall repay the principal balance of the Existing Term Loan in consecutive quarterly installments on the first day of January, April, July and October of each year, commencing January 1, 2010, as follows: January 1, 2010 $ 10,228.29 April 1, 2010 $ 10,228.29 July 1, 2010 $ 10,228.29 August 9, 2010 $ 3,907,208.19 The final installment due August 9, 2010 shall be in the amount of $3,907,208.19 or, if different, the remaining principal balance of the Existing Term Loan, together with accrued interest and all fees, costs, expenses and other charges due by Borrowers with respect to the Existing Term Loan. (3) Notwithstanding Section 1.1(b)(i)(2), the aggregate outstanding principal balance of the Existing Term Loan shall be due and payable in full in immediately available funds on the Commitment Termination Date applicable to the Existing Term Loan, if not sooner paid in full. No payment with respect to the Existing Term Loan may be reborrowed.

Existing Term Loan. (1a) Subject to and upon the terms and conditions hereofcontained herein, each Lender with an Existing Term Loan Commitment agrees that Agent, Lenders and Borrowers are amending and restating the loans comprising the “Term Loan B” under, and as defined in, the Prior Credit Agreement shall remain outstanding on and after the Closing Date as term loans made by Agent and Lenders to Xxxxxx and Lernco pursuant to the Existing Loan Agreement in the original principal amount of $37,500,000 (collectively, the “Existing Term Loan”). Each of Borrowers and Guarantors hereby acknowledges, confirms and agrees that Xxxxxx and Lernco are indebted to Agent and Lenders as of the date hereof in respect of the Obligations arising in connection with the Existing Term Loan in the aggregate principal amount of $28,500,000 (the “Existing Term Loan Balance”), together with interest accrued and accruing thereon and costs, expenses, fees (including attorneys’ fees and legal expenses) made pursuant and other charges now or hereafter owed by Xxxxxx and Lernco to this AgreementAgent and Lenders attributable to the Existing Term Loan Balance, all of which are unconditionally owing by Xxxxxx and such loans shall be deemed Lernco to be made in satisfaction Agent and Lenders, without offset, defense or counterclaim of its obligation any kind, nature and description whatsoever. (b) Effective as of the date hereof, the Existing Term Loan is hereby amended and restated to make its Pro Rata Share provide that the principal amount of the Existing Term Loan on the Closing Date. Upon request by any Lender with a Existing Term Loan Commitment, each Borrower shall execute and deliver to such Lender a promissory note substantially is payable in the form of Exhibit 1.1(b)(ieighteen (18) (each an “Existing Term Loan Note” and collectively the “Existing Term Loan Notes”). Each Existing Term Loan Note (or, if an Existing Term Loan Note is not requested, this Agreement) shall represent the joint and several obligation of Borrowers to pay the applicable Existing Term Loan Commitment, together with interest hereon as prescribed in Section 1.5. (2) Borrowers shall repay the principal balance of the Existing Term Loan in consecutive quarterly installments (or earlier as provided herein) payable on the first day of January, April, July and each calendar quarter commencing October of each year, commencing January 1, 20102007, as follows: January 1, 2010 $ 10,228.29 April 1, 2010 $ 10,228.29 July 1, 2010 $ 10,228.29 August 9, 2010 $ 3,907,208.19 The final of which (i) the first seventeen (17) installments shall each be in the amount of $1,500,000 and (ii) the last installment due August 9, 2010 shall be in the amount of $3,907,208.19 or, if different, the remaining entire unpaid principal balance amount of the Existing Term Loan, together with all accrued and unpaid interest and all fees, costs, expenses thereon. All other Obligations with respect thereto (other than contingent indemnification obligations and other charges due by Borrowers with respect to contingent Obligations related thereto which expressly survive the repayment of the Existing Term Loan), shall be due and payable on the earlier of (A) the Existing Term Loan Maturity Date, or (B) the date of termination of this Agreement, whether by its terms, by prepayment, or by acceleration. (3c) Notwithstanding Section 1.1(b)(i)(2The amendment and restatement of the Existing Term Loan as set forth herein, shall not, in any manner, be construed to constitute payment of, or impair, limit, cancel or extinguish, or constitute a novation in respect of, any of the Obligations arising under the Existing Term Loan. The Existing Term Loan shall continue to be repaid, together with all accrued and unpaid interest thereon and all other Obligations outstanding with respect thereto (other than contingent indemnification obligations and other contingent Obligations related thereto which expressly survive the repayment of the Existing Term Loan), in accordance with this Agreement and the aggregate other Financing Agreements and the Existing Term Loan may be prepaid in whole or in part at any time without premium or penalty in accordance with the provisions of Sections 2.3(d) through 2.3(g) hereof, but once repaid may not be reborrowed. The Existing Term Loan shall continue to be secured by all of the Collateral. (d) Borrowers may, at their option, make a prepayment of all or any portion of the outstanding balance of the Existing Term Loan: (i) so long as: (A) at all times during the thirty (30) day period immediately prior to such payment and after giving effect to such payment, Borrowers have Excess Availability plus Qualified Cash of no less than $40,000,000; (B) Borrowers’ EBITDA for the twelve (12) month period most recently ended is $55,000,000 or more; and (C) both before and after giving effect to such payment, no Default or Event of Default exists or would occur; (ii) with the net cash proceeds of any issuance or sale of, or capital contribution in respect of, any Capital Stock of NY&Co after the date hereof in each case, to the extent the transaction giving rise to such proceeds is not prohibited under the terms of the Financing Agreements or is otherwise consented to by Agent in writing; or (iii) with the net cash proceeds of a refinancing of the Existing Term Loan on terms and conditions reasonably satisfactory to Agent. (e) Within ten (10) days following the receipt by Borrowers of the Net Cash Proceeds from the incurrence or issuance by Borrowers of any Indebtedness for borrowed money described in clause (a) of the definition of Indebtedness on or after the date hereof (which shall exclude for purposes of this Section 2.3(e) the Indebtedness permitted under Sections 9.9(e), (f), (g), (h) and (i) hereof), Borrowers shall, absolutely and unconditionally and without notice or demand, prepay the then outstanding principal amount of the Existing Term Loan in an amount equal to fifty (50%) percent of the amount by which such Net Cash Proceeds exceed $20,000,000; provided, that, in the event that all or a portion of the Net Cash Proceeds from the incurrence or issuance of such Indebtedness is used by Borrowers to build a distribution center, such prepayment shall be in an amount equal to fifty (50%) percent of the amount by which such Net Cash Proceeds exceed the sum of (x) the amount of such Net Cash Proceeds used by Borrowers to build such distribution center (up to $45,000,000), and (y) $20,000,000. Notwithstanding the foregoing, immediately upon the receipt by Borrowers of the Net Cash Proceeds from the New Term Loan, Borrowers shall, absolutely and unconditionally and without notice or demand, prepay in full the then outstanding balance of the Existing Term Loan and all Obligations related thereto. (f) Within ten (10) days following the receipt by Borrowers of the Net Cash Proceeds from the sale by Borrowers of any assets or properties of Borrowers (other than as permitted in Section 9.7(b) hereof) on or after the date hereof, Borrowers shall, absolutely and unconditionally and without notice or demand, prepay the then outstanding principal amount of the Existing Term Loan in an amount equal to fifty (50%) percent of the amount of such Net Cash Proceeds; provided, that, (i) in the event of a sale of the trademarks listed on Schedule 2.3(f) hereto, such prepayment shall be in an amount equal to such percentage of the Net Cash Proceeds in excess of $5,000,000; and (ii) so long as no Default or an Event of Default has occurred and is continuing, on the date any Borrower receives Net Cash Proceeds from the sale of any Equipment or Real Property of such Borrower, such Net Cash Proceeds may, at the option of such Borrower, be applied to acquire replacement property or assets of a like kind to the property or assets so disposed, provided, that (A) Agent shall have a first priority, valid and perfected security interest in such replacement property or assets, and (B) such Borrower shall deliver to Agent a certificate within ten (10) days after the date of receipt of such Net Cash Proceeds stating that such Net Cash Proceeds shall be used to acquire such replacement property or assets of a like kind to the property or assets so disposed within one hundred eighty (180) days after the date of receipt of such Net Cash Proceeds (which certificate shall set forth an estimate of the Net Cash Proceeds to be so expended), (C) if all or any portion of such Net Cash Proceeds are not so used within such one hundred eighty (180) day period, such unused Net Cash Proceeds shall be applied to prepay the Existing Term Loan and the Obligations related thereto in accordance with Section 2.3(i) hereof, and (D) pending such reinvestment, such Net Cash Proceeds shall be applied as a prepayment of Revolving Loans. (g) In the event that at any time (i) the sum of Excess Availability plus Qualified Cash of Borrowers is at any time less than $50,000,000, and (ii) EBITDA of Borrowers when calculated for the twelve (12) consecutive fiscal month period most recently ended for which Agent has received financial statements of Borrowers as provided by Section 9.6(a) hereof is less than $65,000,000, within ten (10) days thereafter, Borrowers shall, absolutely and unconditionally without notice or demand, prepay the then outstanding principal amount of the Existing Term Loan in an amount such that, after giving effect thereto, the outstanding principal amount of the Existing Term Loan shall be equal to $25,000,000; provided, that, (A) in the event that as of any date that such mandatory prepayment is due and payable as set forth above, the conditions to optional prepayments by Borrowers in full in immediately available funds on the Commitment Termination Date applicable to the Existing Term Loan, if not sooner paid in full. No payment with respect to of the Existing Term Loan set forth in Section 2.3(d)(i) hereof would not be satisfied after giving effect to such mandatory prepayment, then payments in respect of such mandatory prepayment shall instead be due and payable on each date thereafter that all or any portion of such mandatory prepayment otherwise due on the date set forth above may be reborrowedmade to the extent that after giving effect thereto the conditions to optional prepayments in Section 2.3(d)(i) hereof would be satisfied, and Borrowers shall make such payments in respect of such mandatory prepayment until the aggregate amount of all of such payments equals the amount required to have been paid as of the original due date for such mandatory prepayment; (B) in the event that Borrowers are not required to make a mandatory prepayment under this Section 2.3(g) on the due date as set forth above, then on and after such due date, the amount of the minimum Excess Availability that Borrowers are required to maintain under Section 9.17 hereof shall be increased by the amount of the mandatory prepayment that would have otherwise been paid under this Section 2.3(g) on the such due date, provided, that, (1) the amount of the minimum Excess Availability required to be maintained under Section 9.17 hereof shall thereafter be reduced to the extent of payments received by Agent in respect of such mandatory prepayment as provided in clause (A) above, and (2) in no event shall the amount of the minimum Excess Availability that Borrowers are required to maintain under Section 9.17 hereof be reduced to less than $7,500,000. (h) Each such prepayment required pursuant to clauses (e), (f) and (g) of this Section 2.3 shall be accompanied by a certificate signed by each Borrower’s chief financial officer certifying the manner in which the Net Cash Proceeds from the transactions described in subsections (e), (f) and (g) of this Section 2.3 and the resulting prepayment were calculated. (i) Each prepayment of principal under this Section 2.3(d) through (g) hereof shall be made together with accrued and unpaid interest thereon to the date of such prepayment. Each prepayment set forth in this Section 2.3 shall be applied against the remaining installments (if any) of principal due on the Existing Term Loan in the inverse order of maturity. To the extent that the Existing Term Loan has been repaid in full, Agent shall apply such amounts to the Obligations, whether or not then due, in such order or manner as Agent shall determine, or at Agent’s option, to be held as cash collateral for the Obligations. Nothing contained in this Section 2.3 shall be construed to constitute a consent, implied or otherwise, to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.