Trademark Applications. Registered Owner Mark Country Application No. Filing Date Schedule 10 Commercial Tort Claims Schedule 11 Deposit Accounts Loan Party Depositary Institution (including address) Type of Account Account Name and Number Schedule 12 Securities Accounts Loan Party Financial Institution (including address) Type of Account Account Number Schedule 13 Letters of Credit LC Number Issuing Bank Beneficiary Purpose Issue Date Expiration Date Face Value Schedule 14 Chattel Paper Loan Party Obligor Type (Tangible/Electronic) Due Date Outstanding Principal Amount Schedule 15 Credit Card Agreements EXHIBIT G [FORM OF] SUPPLEMENTAL PERFECTION CERTIFICATE Reference is made to the (a) Amended and Restated Credit Agreement dated as of January 3, 2011, as further amended and restated as of June 14, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), among Ascena Retail Group, Inc., a Delaware corporation (the “Company”), the Borrowing Subsidiaries party thereto, the other Loan Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent and (b) Term Credit Agreement dated as of June 14, 2012 (as it may be amended, supplemented or otherwise modified, the “Term Credit Agreement” and, together with the ABL Credit Agreement, the “Credit Agreements”), among the Company, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity under each Credit Agreement, the “Administrative Agent”). Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreements, Restated Security Agreement and Collateral Agreement referred to therein, as applicable. This Certificate is dated as of [ ], 20[ ] and is delivered pursuant to Section 5.01(f) of the ABL Credit Agreement and Section 5.01(e) of the Term Credit Agreement (this Certificate and each other Certificate heretofore delivered pursuant to Section 5.01(f) of the ABL Credit Agreement and Section 5.01(e) of the Term Credit Agreement being referred to as a “Supplemental Perfection Certificate”), and supplements the information set forth in the Perfection Certificate delivered on the Second Restatement Effective Date (as supplemented from time to time by the Supplemental Perfection Certificates delivered after the Second Restatement Effective Date and prior to the date hereof, the “Prior Perfection Certificate”); provided that Sections 2 and 15 (and the Schedules related thereto) shall be deemed a part of the Supplemental Perfection Certificate solely with respect to the ABL Credit Agreement. The undersigned, an executive officer or a Financial Officer of the Company, solely in his capacity as an officer, and not individually, hereby certifies to the Administrative Agent and each other Lender Party and Secured Party with respect to the Company and the Subsidiaries, as follows:
Appears in 1 contract
Samples: Intercreditor Agreement (Ascena Retail Group, Inc.)
Trademark Applications. Registered Owner Mark Mxxx Country Application No. Filing Date Schedule 10 8 Commercial Tort Claims Schedule 11 Deposit Accounts Loan Party Depositary Institution (including address) Type 9 Insurance Insurance Policy Coverage Scope of Account Account Name and Number Coverage Lead Insurance Carrier Limit of Liability Term Deductibles or Self-Insured Retention Schedule 10 Other Collateral Schedule 12 Securities Accounts Loan Transmitting Utility Credit Party Financial Institution Jurisdiction where Transmitting Utility Equipment is Held EXHIBIT N TO FUSION CONNECT, INC. FIRST LIEN CREDIT AND GUARANTY AGREEMENT FORM OF [REVOLVING][TERM] NOTE [$_________]46 [ ], 20__ FOR VALUE RECEIVED, the undersigned, FUSION CONNECT, INC., a Delaware corporation (including addressthe “Borrower”), hereby unconditionally promises to pay to ________________________ (the “Lender”) Type or its registered assigns, in lawful money of Account Account Number Schedule 13 Letters the United States of Credit LC Number Issuing Bank Beneficiary Purpose Issue Date Expiration Date Face Value Schedule 14 Chattel Paper Loan Party Obligor Type (Tangible/Electronic) Due Date Outstanding Principal Amount Schedule 15 Credit Card Agreements EXHIBIT G America and in same day funds, [FORM OF] SUPPLEMENTAL PERFECTION CERTIFICATE Reference is made to the (a) Amended the principal amount of ____________ DOLLARS ($___________) or (b) if less,]47 the aggregate unpaid principal amount of all [Revolving][Tranche A Term][Tranche B Term] Loans made by the Lender to the Borrower pursuant to the First Lien Credit and Restated Credit Agreement Guaranty Agreement, dated as of January 3May 4, 2011, as further amended and restated as of June 14, 2012 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), among Ascena Retail Groupthe Borrower, certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent, on such dates and in such amounts as are set forth in the Credit Agreement. Capitalized terms used in this Note but not otherwise defined herein shall have the meanings given to them in the Credit Agreement. The Borrower also promises to pay interest in like money on the unpaid principal amount hereof from time to time outstanding from and including the date hereof until maturity (whether by acceleration or otherwise) and, after maturity, until paid, at the rates per annum and on the dates specified in the Credit Agreement. The holder of this Note (this “Note”) is authorized to endorse on Schedule A attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each [Revolving][Tranche A Term][Tranche B Term] Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of a Eurodollar Rate Loan, the length of each Interest Period with respect thereto. The failure to make any such endorsement shall not affect the obligations of the Borrower in respect of any such [Revolving][Tranche A Term][Tranche B Term] Loan. This Note (a) is one of the Notes referred to in the Credit Agreement, (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional prepayment in whole or in part as provided in the Credit Agreement. Reference is made to the Credit Agreement for provisions for the acceleration of the maturity hereof. This Note may not be transferred except in compliance with the terms of the Credit Agreement. Transfers of this Note must be recorded in the Register maintained by the Administrative Agent pursuant to the terms of the Credit Agreement. THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK. 46 Include in Term Note. 47 Include in Term Note. FUSION CONNECT, INC. By:________________________________ Name: Title: SCHEDULE A to Note LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE LOANS Date Amount of Eurodollar Rate Loans Amount Continued or Converted to Eurodollar Rate Loans Interest Period and Eurodollar Rate with Respect Thereto Amount of Principal of Eurodollar Rate Loans Repaid Amount of Eurodollar Rate Loans Converted to Base Rate Loans Unpaid Principal Balance of Eurodollar Rate Loans Notation Made By SCHEDULE B to Note LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS Date Amount of Base Rate Loans Amount Convertedto Base Rate Loans Amount of Principal of Base Rate Loans Repaid Amount of Base Rate Loans Converted to Eurodollar Rate Loans Unpaid Principal Balance of Base Rate Loans Notation Made By EXHIBIT O-1 TO FUSION CONNECT, INC. FIRST LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “CompanyBorrower”), certain Subsidiaries of the Borrowing Subsidiaries Borrower party thereto, the other Loan Parties party theretoas Guarantors, the Lenders party thereto and JPMorgan Chase BankWilmington Trust, N.A.National Association, as Administrative Agent and Collateral Agent. Pursuant to the provisions of Section 2.19(g)(ii)(B)(3) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) Term it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (b) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. TO FUSION CONNECT, INC. FIRST LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the First Lien Credit and Guaranty Agreement dated as of June 14May 4, 2012 2018 (as it may be amended, supplemented or otherwise modified, the “Term Credit Agreement” and, together with the ABL Credit Agreementmodified from time to time, the “Credit AgreementsAgreement”), among Fusion Connect, Inc., a Delaware corporation (the Company“Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and JPMorgan Chase BankWilmington Trust, N.A.National Association, as Administrative Agent (in such capacity under each and Collateral Agent. Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the “Administrative Agent”)undersigned hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. Capitalized terms used but not The undersigned has furnished its participating Lender with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (b) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings specified given to them in the Credit Agreements, Restated Security Agreement and Collateral Agreement referred to therein, as applicableAgreement. This Certificate is dated as of [ ][NAME OF PARTICIPANT] By: Name: Title: Date: ________ __, 20[ ] TO FUSION CONNECT, INC. FIRST LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the First Lien Credit and is delivered pursuant Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Pursuant to the provisions of Section 5.01(f2.19(g)(ii)(B)(4) of the ABL Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the participation in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such participation, (c) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. [NAME OF PARTICIPANT] By: Name: Title: Date: ________ __, 20[ ] TO FUSION CONNECT, INC. FIRST LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the First Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Pursuant to the provisions of Section 5.01(e2.19(g)(ii)(B)(4) of the Term Credit Agreement Agreement, the undersigned hereby certifies that (this Certificate and each other Certificate heretofore delivered pursuant to Section 5.01(fa) it is the sole record owner of the ABL Credit Agreement and Section 5.01(eLoan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the Term Credit Agreement being referred to sole beneficial owners of such Loan(s) (as a “Supplemental Perfection Certificate”well as any Note(s) evidencing such Loan(s)), and supplements the information set forth in the Perfection Certificate delivered on the Second Restatement Effective Date (as supplemented from time to time by the Supplemental Perfection Certificates delivered after the Second Restatement Effective Date and prior to the date hereof, the “Prior Perfection Certificate”); provided that Sections 2 and 15 (and the Schedules related theretoc) shall be deemed a part of the Supplemental Perfection Certificate solely with respect to the ABL extension of credit pursuant to this Credit AgreementAgreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned, an executive officer or a Financial Officer of the Company, solely in his capacity as an officer, and not individually, hereby certifies to undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each other Lender Party of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and Secured Party the Administrative Agent, and (ii) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with respect a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the Company undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the Subsidiariesmeanings given to them in the Credit Agreement. [NAME OF LENDER] By: Name: Title: Date: ________ __, as follows:20[ ]
Appears in 1 contract
Trademark Applications. Registered Owner Mark Country Application No. Filing Date Schedule 10 Commercial Tort Claims Schedule 11 Deposit Accounts Loan Party Depositary Institution (including address) Type of Account Account Name and Number Schedule 12 Securities Accounts Loan Party Financial Institution (including address) Type of Account Account Number Schedule 13 Letters of Credit LC Number Issuing Bank Beneficiary Purpose Issue Date Expiration Date Face Value Schedule 14 Chattel Paper Loan Party Obligor Type (Tangible/Electronic) Due Date Outstanding Principal Amount Schedule 15 Credit Card Agreements EXHIBIT G H-1 [FORM OF] SUPPLEMENTAL PERFECTION U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the (a) Amended and Restated Term Credit Agreement dated as of January 3, 2011, as further amended and restated as of June 14, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “ABL Term Credit Agreement”), among Ascena Retail Group, Inc., the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Pursuant to the provisions of Section 2.15 of the Term Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company or any of its Subsidiaries within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Company or any of its Subsidiaries as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Company with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Credit Agreement and used herein shall have the meanings given to them in the Term Credit Agreement. [NAME OF LENDER] By: Name: Title: Date: , 20[ ] [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Term Credit Agreement dated as of June 14, 2012 (as amended, supplemented or otherwise modified from time to time, the “Term Credit Agreement”), among Ascena Retail Group, Inc., the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Pursuant to the provisions of Section 2.15 of the Term Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company or any of its Subsidiaries within the meaning of Section 881(c)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Company or any of its Subsidiaries as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Credit Agreement and used herein shall have the meanings given to them in the Term Credit Agreement. [NAME OF PARTICIPANT] By: Name: Title: Date: , 20[ ] [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Term Credit Agreement dated as of June 14, 2012 (as amended, supplemented or otherwise modified from time to time, the “Term Credit Agreement”), among Ascena Retail Group, Inc., the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Pursuant to the provisions of Section 2.15 of the Term Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company or any of its Subsidaries within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company or any of its Subsidiaries as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Credit Agreement and used herein shall have the meanings given to them in the Term Credit Agreement. [NAME OF PARTICIPANT] By: Name: Title: Date: , 20[ ] [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Term Credit Agreement dated as of June 14, 2012 (as amended, supplemented or otherwise modified from time to time, the “Term Credit Agreement”), among Ascena Retail Group, Inc., the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Pursuant to the provisions of Section 2.15 of the Term Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Term Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company or any of its Subsidiaries within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company or any of its Subsidiaries as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Company with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Term Credit Agreement and used herein shall have the meanings given to them in the Term Credit Agreement. [NAME OF LENDER] By: Name: Title: Date: , 20[ ] EXHIBIT I INTERCREDITOR AGREEMENT dated as of June 14, 2012, between JPMORGAN CHASE BANK, N.A., as ABL Agent, and JPMORGAN CHASE BANK, N.A., as Term Agent [CS&M Ref. No. 6701-814] Table of Contents Page ARTICLE I Definitions SECTION 1.01. New York UCC 1 SECTION 1.02. Other Defined Terms 1 SECTION 1.03. Terms Generally 13 ARTICLE II Lien Priorities SECTION 2.01. Relative Priorities 14 SECTION 2.02. Prohibition on Contests 15 SECTION 2.03. No New Liens 15 SECTION 2.04. Revolving Nature of ABL Obligations 16 ARTICLE III Enforcement SECTION 3.01. Exercise of Remedies 16 SECTION 3.02. Lockbox System 20 ARTICLE IV Payments SECTION 4.01. Application of Proceeds 20 SECTION 4.02. Payments Over 21 SECTION 4.03. Delivery of Collateral and Proceeds 22 ARTICLE V Other Agreements SECTION 5.01. Releases 22 SECTION 5.02. Insurance 23 SECTION 5.03. Certain Provisions Regarding Credit Documents 24 SECTION 5.04. Bailee for Perfection 25 SECTION 5.05. When Discharge of Obligations Deemed Not to Have Occurred 26 SECTION 5.06. Obligations Purchase Right 26 SECTION 5.07. Sharing of Information; Rights of Access and Use 27 Page SECTION 5.08. Consent to License of Intellectual Property 30 SECTION 5.09. Permits and Licenses 30 ARTICLE VI Insolvency or Liquidation Proceedings SECTION 6.01. Cash Collateral and DIP Financing 31 SECTION 6.02. Relief from the Automatic Stay 31 SECTION 6.03. Adequate Protection 31 SECTION 6.04. No Waiver 33 SECTION 6.05. Avoidance Issues 33 SECTION 6.06. Post-Petition Amounts 33 SECTION 6.07. Asset Dispositions 33 SECTION 6.08. Waiver 34 SECTION 6.09. Separate Grants of Security and Separate Classification 34 SECTION 6.10. Voting 35 SECTION 6.11. Reorganization Securities 35 ARTICLE VII Reliance; Waivers; Etc. SECTION 7.01. Reliance; Information 35 SECTION 7.02. No Warranties or Liability 36 SECTION 7.03. No Waiver of Lien Priorities 36 SECTION 7.04. No Marshalling 36 SECTION 7.05. Obligations Unconditional 37 ARTICLE VIII Miscellaneous SECTION 8.01. Notices 37 SECTION 8.02. Conflicts 38 SECTION 8.03. Effectiveness; Continuing Nature of this Agreement 38 SECTION 8.04. Severability 38 SECTION 8.05. Amendments; Waivers 38 SECTION 8.06. Information Concerning Financial Condition of Grantors 39 SECTION 8.07. Subrogation 39 SECTION 8.08. Application of Payments 39 SECTION 8.09. Applicable Law 39 SECTION 8.10. WAIVER OF JURY TRIAL 39 SECTION 8.11. Jurisdiction; Consent to Service of Process 40 Table of Contents Page SECTION 8.12. Further Assurances 40 SECTION 8.13. Specific Performance 40 SECTION 8.14. Headings 41 SECTION 8.15. Counterparts 41 SECTION 8.16. Authorization 41 SECTION 8.17. Parties in Interest 41 SECTION 8.18. Provisions Solely to Define Relative Rights 41 INTERCREDITOR AGREEMENT dated as of June 14, 2012 (this “Agreement”), between JPMORGAN CHASE BANK, N.A., in its capacity as administrative and collateral agent for, and acting on behalf of, the ABL Secured Parties (together with its successors and assigns in such capacity, the “ABL Agent”), and JPMORGAN CHASE BANK, N.A., in its capacity as administrative and collateral agent for, and acting on behalf of, the Term Secured Parties (together with its successors and assigns in such capacity, the “Term Agent”). Capitalized terms used in this Agreement have the meanings assigned to them in Article I below. On the date hereof, (a) Ascena Retail Group, Inc., a Delaware corporation (the “Company”), the Borrowing Subsidiaries party thereto, the other Loan Parties party thereto, the Lenders lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent Term Agent, are entering into the Term Credit Agreement and (b) Term Credit Agreement dated as of June 14, 2012 (as it may be amended, supplemented or otherwise modified, the “Term Credit Agreement” and, together with the ABL Credit Agreement, the “Credit Agreements”), among the Company, the Lenders other Grantors, the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity under each Credit AgreementABL Agent, the “Administrative Agent”). Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreements, Restated Security Agreement and Collateral Agreement referred to therein, as applicable. This Certificate is dated as of [ ], 20[ ] and is delivered pursuant to Section 5.01(f) of the ABL Credit Agreement and Section 5.01(e) of the Term Credit Agreement (this Certificate and each other Certificate heretofore delivered pursuant to Section 5.01(f) of the ABL Credit Agreement and Section 5.01(e) of the Term Credit Agreement being referred to as a “Supplemental Perfection Certificate”), and supplements the information set forth in the Perfection Certificate delivered on the Second Restatement Effective Date (as supplemented from time to time by the Supplemental Perfection Certificates delivered after the Second Restatement Effective Date and prior to the date hereof, the “Prior Perfection Certificate”); provided that Sections 2 and 15 (and the Schedules related thereto) shall be deemed a part of the Supplemental Perfection Certificate solely with respect to are entering into the ABL Credit Agreement. The undersigned, an executive officer or a Financial Officer of ABL Credit Agreement provides that Term Liens shall be permitted under the Company, solely in his capacity as an officercovenants contained therein, and not individuallythe Term Credit Agreement provides that ABL Liens shall be permitted under the covenants contained therein, hereby certifies only if such Liens are subject to the Administrative terms of an intercreditor agreement in the form of this Agreement. Accordingly, the ABL Secured Parties and the Term Secured Parties have authorized and directed the ABL Agent and each other Lender Party the Term Agent, respectively, to enter into this Agreement to set forth their relative rights and Secured Party remedies with respect to the Company Collateral. In consideration of the foregoing and the Subsidiariesmutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Appears in 1 contract
Samples: Intercreditor Agreement (Ascena Retail Group, Inc.)
Trademark Applications. Registered Owner Mark Xxxx Country Application No. Filing Date Schedule 10 8 Commercial Tort Claims Schedule 11 Deposit Accounts Loan Party Depositary Institution (including address) Type 9 Insurance Insurance Policy Coverage Scope of Account Account Name and Number Coverage Lead Insurance Carrier Limit of Liability Term Deductibles or Self-Insured Retention Schedule 10 Other Collateral Schedule 12 Securities Accounts Loan Transmitting Utility Credit Party Financial Institution Jurisdiction where Transmitting Utility Equipment is Held EXHIBIT M TO FUSION CONNECT, INC. SECOND LIEN CREDIT AND GUARANTY AGREEMENT FORM OF NOTE $_________ [ ], 20__ FOR VALUE RECEIVED, the undersigned, FUSION CONNECT, INC., a Delaware corporation (including addressthe “Borrower”), hereby unconditionally promises to pay to ________________________ (the “Lender”) Type or its registered assigns, in lawful money of Account Account Number Schedule 13 Letters the United States of Credit LC Number Issuing Bank Beneficiary Purpose Issue Date Expiration Date Face Value Schedule 14 Chattel Paper Loan Party Obligor Type (Tangible/Electronic) Due Date Outstanding Principal Amount Schedule 15 Credit Card Agreements EXHIBIT G [FORM OF] SUPPLEMENTAL PERFECTION CERTIFICATE Reference is made to the America and in same day funds, (a) Amended the principal amount of ____________ DOLLARS ($___________) or (b) if less, the aggregate unpaid principal amount of all [Tranche B Term] Loans made by the Lender to the Borrower pursuant to the Second Lien Credit and Restated Credit Agreement Guaranty Agreement, dated as of January 3May 4, 2011, as further amended and restated as of June 14, 2012 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), among Ascena Retail Groupthe Borrower, certain Subsidiaries of the Borrower party thereto, the lenders party thereto and Wilmington Trust, National Association, as administrative agent and collateral agent, on such dates and in such amounts as are set forth in the Credit Agreement. Capitalized terms used in this Note but not otherwise defined herein shall have the meanings given to them in the Credit Agreement. The Borrower also promises to pay interest in like money on the unpaid principal amount hereof from time to time outstanding from and including the date hereof until maturity (whether by acceleration or otherwise) and, after maturity, until paid, at the rates per annum and on the dates specified in the Credit Agreement. The holder of this Note (this “Note”) is authorized to endorse on Schedule A attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each [Tranche B Term] Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of a Eurodollar Rate Loan, the length of each Interest Period with respect thereto. The failure to make any such endorsement shall not affect the obligations of the Borrower in respect of any such [Tranche B Term] Loan. This Note (a) is one of the Notes referred to in the Credit Agreement, (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional prepayment in whole or in part as provided in the Credit Agreement. Reference is made to the Credit Agreement for provisions for the acceleration of the maturity hereof. This Note may not be transferred except in compliance with the terms of the Credit Agreement. Transfers of this Note must be recorded in the Register maintained by the Administrative Agent pursuant to the terms of the Credit Agreement. THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK. FUSION CONNECT, INC. By:________________________________ Name: Title: SCHEDULE A to Note LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE LOANS Date Amount of Eurodollar Rate Loans Amount Continued or Converted to Eurodollar Rate Loans Interest Period and Eurodollar Rate with Respect Thereto Amount of Principal of Eurodollar Rate Loans Repaid Amount of Eurodollar Rate Loans Converted to Base Rate Loans Unpaid Principal Balance of Eurodollar Rate Loans Notation Made By SCHEDULE B to Note LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS Date Amount of Base Rate Loans Amount Convertedto Base Rate Loans Amount of Principal of Base Rate Loans Repaid Amount of Base Rate Loans Converted to Eurodollar Rate Loans Unpaid Principal Balance of Base Rate Loans Notation Made By EXHIBIT N-1 TO FUSION CONNECT, INC. SECOND LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “CompanyBorrower”), certain Subsidiaries of the Borrowing Subsidiaries Borrower party thereto, the other Loan Parties party theretoas Guarantors, the Lenders party thereto and JPMorgan Chase BankWilmington Trust, N.A.National Association, as Administrative Agent and Collateral Agent. Pursuant to the provisions of Section 2.19(g)(ii)(B)(3) of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) Term it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (b) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. [NAME OF LENDER] By: Name: Title: Date: ________ __, 20[ ] TO FUSION CONNECT, INC. SECOND LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the Second Lien Credit and Guaranty Agreement dated as of June 14May 4, 2012 2018 (as it may be amended, supplemented or otherwise modified, the “Term Credit Agreement” and, together with the ABL Credit Agreementmodified from time to time, the “Credit AgreementsAgreement”), among Fusion Connect, Inc., a Delaware corporation (the Company“Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and JPMorgan Chase BankWilmington Trust, N.A.National Association, as Administrative Agent (in such capacity under each and Collateral Agent. Pursuant to the provisions of Section 2.19(g)(ii)(B)(4) of the Credit Agreement, the “Administrative Agent”)undersigned hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. Capitalized terms used but not The undersigned has furnished its participating Lender with a certificate of its non-US Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (b) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings specified given to them in the Credit Agreements, Restated Security Agreement and Collateral Agreement referred to therein, as applicableAgreement. This Certificate is dated as of [ ][NAME OF PARTICIPANT] By: Name: Title: Date: ________ __, 20[ ] TO FUSION CONNECT, INC. SECOND LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the Second Lien Credit and is delivered pursuant Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Pursuant to the provisions of Section 5.01(f2.19(g)(ii)(B)(4) of the ABL Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the participation in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such participation, (c) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. [NAME OF PARTICIPANT] By: Name: Title: Date: ________ __, 20[ ] TO FUSION CONNECT, INC. SECOND LIEN CREDIT AND GUARANTY AGREEMENT US TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For US Federal Income Tax Purposes) Reference is hereby made to the Second Lien Credit and Guaranty Agreement dated as of May 4, 2018 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Fusion Connect, Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower party thereto, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent and Collateral Agent. Pursuant to the provisions of Section 5.01(e2.19(g)(ii)(B)(4) of the Term Credit Agreement Agreement, the undersigned hereby certifies that (this Certificate and each other Certificate heretofore delivered pursuant to Section 5.01(fa) it is the sole record owner of the ABL Credit Agreement and Section 5.01(eLoan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the Term Credit Agreement being referred to sole beneficial owners of such Loan(s) (as a “Supplemental Perfection Certificate”well as any Note(s) evidencing such Loan(s)), and supplements the information set forth in the Perfection Certificate delivered on the Second Restatement Effective Date (as supplemented from time to time by the Supplemental Perfection Certificates delivered after the Second Restatement Effective Date and prior to the date hereof, the “Prior Perfection Certificate”); provided that Sections 2 and 15 (and the Schedules related theretoc) shall be deemed a part of the Supplemental Perfection Certificate solely with respect to the ABL extension of credit pursuant to this Credit AgreementAgreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (d) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code. The undersigned, an executive officer or a Financial Officer of the Company, solely in his capacity as an officer, and not individually, hereby certifies to undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each other Lender Party of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and Secured Party the Administrative Agent, and (ii) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with respect a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the Company undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the Subsidiariesmeanings given to them in the Credit Agreement. [NAME OF LENDER] By: Name: Title: Date: ________ __, as follows:20[ ]
Appears in 1 contract
Trademark Applications. Registered Owner Mark Xxxx Country Application No. Filing Date Schedule 10 Commercial Tort Claims Schedule 11 Deposit Accounts Loan Party Depositary Institution (including address) Type of Account Account Name and Number Schedule 12 Securities Accounts Loan Party Financial Institution (including address) Type of Account Account Number Schedule 13 Letters of Credit LC Number Issuing Bank Beneficiary Purpose Issue Date Expiration Date Face Value Schedule 14 Chattel Paper Loan Party Obligor Type (Tangible/Electronic) Due Date Outstanding Principal Amount Schedule 15 Credit Card Agreements EXHIBIT G [G-2][/[G] [FORM OF] SUPPLEMENTAL PERFECTION CERTIFICATE Reference is made to (i) the (a) Amended and Restated Credit Agreement dated as of January 3, 2011, as further amended and restated as of June 14, 2012 2012, March 13, 2013, and August [21], 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), among Ascena Retail Group, Inc., a Delaware corporation (the “Company”), the Borrowing Subsidiaries (as defined therein) party thereto, the other Loan Parties (as defined therein) party thereto, the Lenders lenders from time to time party thereto (the “ABL Lenders”) and JPMorgan Chase Bank, N.A.N.A. as administrative agent for the ABL Lenders (in such capacity, as the “ABL Administrative Agent Agent”) and (bii) the Term Credit Agreement dated as of June 14August [21], 2012 2015 (as it may be amended, restated, supplemented or otherwise modifiedmodified from time to time, the “Term Credit Agreement” and, together with the ABL Credit Agreement, the “Credit Agreements”), among the Company, AnnTaylor Retail, Inc., the Lenders lenders from time to time party thereto (the “Term Lenders”) and JPMorgan Chase Bank, N.A.Xxxxxxx Xxxxx Bank USA, as Administrative Agent administrative agent for the Term Lenders (in such capacity under each Credit Agreementcapacity, the “Term Administrative Agent”). Capitalized terms used but not otherwise defined herein shall have the meanings specified assigned in the ABL Credit Agreements, Agreement (or the Restated Security Agreement and referred to therein) or the Term Credit Agreement (or the Collateral Agreement referred to therein), as applicable. This Certificate is dated as of [ ], 20[ ] and is delivered pursuant to Section 5.01(f) of the ABL Credit Agreement and Section 5.01(e5.01(d) of the Term Credit Agreement (this Certificate and each other Certificate heretofore delivered pursuant to Section 5.01(f) of the ABL Credit Agreement and Section 5.01(e) of the Term Credit Agreement being referred to as a “Supplemental Perfection Certificate”), and supplements the information set forth in the Perfection Certificate delivered on on, in the Second case of the ABL Credit Agreement, the Fourth Restatement Effective Date, and in the case of the Term Credit Agreement, the Effective Date (as supplemented from time to time by the Supplemental Perfection Certificates delivered after the Second Fourth Restatement Effective Date and the Effective Date, respectively, and prior to the date hereof, the “Prior Perfection Certificate”); provided that Sections 2 and 15 (and the Schedules related thereto) shall be deemed a part of the Supplemental Perfection Certificate solely with respect to the ABL Credit AgreementCertificate. The undersigned, an executive officer or a Financial Officer of the Company, solely in his or her capacity as an officer, and not individually, hereby certifies to each of the ABL Administrative Agent, the Term Administrative Agent and each other Lender Party and Secured Party with respect to the Company and the Subsidiaries, its Subsidiaries as follows:
Appears in 1 contract
Samples: Assignment and Assumption (Ascena Retail Group, Inc.)
