Contract
Exhibit 10.12
EXECUTION VERSION
WAIVER AND AMENDMENT NO. 3 dated as of February 15, 2019 (this “Amendment”) to the Credit Agreement dated as of August 28, 2017 (as amended, supplemented or modified prior to the date hereof, the “Credit Agreement”), by and among LULU’S FASHION LOUNGE, LLC, a Delaware limited liability company (the “Borrower”), LULU’S FASHION LOUNGE PARENT, LLC, a Delaware limited liability company (“Holdings”), the Lenders party thereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) and as collateral agent (in such capacity, including any successor thereto, the “Collateral Agent” and, together with the Administrative Agent, the “Agent”) for the Lenders.
A. The Borrower has requested that the Credit Agreement be amended in order to extend the date by which the Borrower is required to furnish to the Agent (i) its internally prepared unaudited consolidated financial statements and related documentation with respect to the Fiscal Quarter ended on or about December 31, 2018 and (ii) its annual budget and projections with respect to the Fiscal Year ended on or about December 31, 2019.
B. The Required Lenders are willing to amend the Credit Agreement, on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms; Interpretation; Etc. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Credit Agreement. The rules of construction set forth in Section 11.2 of the Credit Agreement shall apply mutatis mutandis to this Amendment.
SECTION 2. Waiver. Certain Defaults have occurred and are continuing as a result of the Borrower’s failure to comply with (i) Section 4.1(b) of the Credit Agreement with respect to the internally prepared unaudited financial statements and related documentation with respect to the Fiscal Quarter ending on or about December 31, 2018 and (ii) Section 4.2(d) of the Credit Agreement with respect to the annual budget and projections with respect to the Fiscal Year ending on or about December 31, 2019 (such Defaults, the “Designated Defaults”). The Lenders party hereto, constituting the Required Lenders, hereby waive the Designated Defaults.
SECTION 3. Amendment to the Credit Agreement. Effective as of the Effective Date (as defined below), the Credit Agreement is hereby amended as follows:
| a.. | Section 4.1(b) of the Credit Agreement is hereby amended by inserting the following proviso at the end thereof: |
“provided that, with respect to the Fiscal Quarter ended on or about December 31, 2018, the Borrower shall furnish such internally prepared unaudited financial statements and reports on or prior to February 22, 2019;”
| b.. | Section 4.2(d) of the Credit Agreement is hereby amended by inserting the following proviso at the end thereof: |
“provided that, with respect to the annual budget and projections to be delivered with respect to the Fiscal Year ending on or about December 31, 2019, the Borrower shall furnish such annual budget and projections on or prior to February 22, 2019;”
SECTION 4. Conditions Precedent to Effectiveness. This Amendment shall become effective on the date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Amendment that, when taken together, bear the signatures of (a) the Borrower and (b) the Required Lenders.
SECTION 5. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Borrower represents and warrants to the Agent and each Lender that, as of the Effective Date, (a) the representations and warranties set forth in Article III of the Credit Agreement and in each other Loan Document are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the Effective Date, except to the extent that any representation or warranty expressly relates to an earlier date or period (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date or period) and (b) no Default (other than the Designated Defaults) or Event of Default has occurred and is continuing.
SECTION 6. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which shall continue in full force and effect. Nothing herein shall be deemed to entitle any Credit Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. After the date hereof, any reference in any Loan Document to the Credit Agreement shall be deemed to refer without further amendment to the Credit Agreement as amended hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Amendment by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 8. Governing Law. The laws of the State of New York shall govern all matters arising out of, in connection with or relating to this Amendment, including, without limitation, its validity, interpretation, construction, performance and enforcement (including, without limitation, any claims based in contract or tort law arising out of the subject matter hereof and any determinations with respect to post-judgment interest).
SECTION 9. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
| LULU’S FASHION LOUNGE, LLC, | ||
| by | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx Title: CFO | ||
[Signature Page to Waiver and Amendment No. 3]
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, individually and as Administrative Agent | ||
| by | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx Title: Authorized Signatory | ||
| by | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx Title: Authorized Signatory | ||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC
Name of Lender: BGC Credit Opportunities Fund Ltd | ||||
| By | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | COO of its general partner, Birch Grove Advisors LLC | |||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC
Name of Lender: BGC Income Fund-01 LP | ||||
| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | COO of its general partner, Birch Grove Advisors LLC | |||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| Name of Lender: Swiss Capital Alternative Strategies Fund SPC RE: SC Alternative Strategy 14SP | ||||
| by | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | COO of its general partner, | |||
| Birch Grove Advisors LLC | ||||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| Name of Lender: I-45 SPV LLC | ||||
| by | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| Name of Lender: Snow Hill Designated Activity Company | ||||
| By | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Associate Director | |||
| For any Lender requiring a second signature block: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| Name of Lender: XXXXXXX XXXXX FUNDING INTERNATIONAL LIMITED | ||||
| By | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| MONROE CAPITAL CORPORATION, in its capacity as a Lender | ||||
| By | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| MONROE CAPITAL PRIVATE CREDIT FUND II FINANCING SPV LLC, in its capacity as a Lender | ||
| By: MONROE CAPITAL PRIVATE CREDIT FUND II LP, as Designated Manager | ||
| By: MONROE CAPITAL PRIVATE CREDIT FUND II LLC, its general partner | ||
| By |
/s/ Xxxxxxx Xxxxxxx |
|
|
Name: |
Xxxxxxx Xxxxxxx | ||
| Title: |
Managing Director |
| MONROE CAPITAL PRIVATE CREDIT FUND II (UNLEVERAGED) LP, in its capacity as a Lender | ||
| By: MONROE CAPITAL PRIVATE CREDIT FUND II LLC, its general partner | ||
| By | /s/ Xxxxxxx Xxxxxxx |
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director |
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| MONROE PRIVATE CREDIT FUND A FINANCING SPV LLC, in its capacity as a Lender | ||||
| By: MONROE PRIVATE CREDIT FUND A LP, as its Designated Manager | ||||
| By: MONROE PRIVATE CREDIT FUND A LLC, its general partner | ||||
| By | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| MONROE CAPITAL PRIVATE CREDIT FUND I FINANCING SPV LLC, in its capacity as a Lender | ||||
| By: MONROE CAPITAL PRIVATE CREDIT FUND I LP, as its Designated Manager | ||||
| By: MONROE CAPITAL PRIVATE CREDIT FUND I LLC, its general partner | ||||
| By | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||
| MONROE CAPITAL PRIVATE CREDIT FUND II-O (UNLEVERAGED OFFSHORE) LP, in its capacity as a Lender | ||
| By: MONROE CAPITAL PRIVATE CREDIT FUND II LLC, its general partner | ||
| By | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Managing Director | ||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| Name of Lender: | ||||
| Monroe Capital MML CLO 2014-1, Ltd. | ||||
| By: Monroe Capital Management LLC, as Asset Manager and Attorney-in-fact | ||||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Director | |||
| Name of Lender: | ||||
| Monroe Capital MML CLO 2016-1, Ltd. | ||||
| By: Monroe Capital Management LLC, as Collateral Manager and Attorney-in-fact | ||||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Director | |||
| Name of Lender: | ||||
| Monroe Capital MML CLO 2017-1, Ltd. | ||||
| By: Monroe Capital Management LLC, as Collateral Manager and Attorney-in-fact | ||||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Director | |||
[Signature Page to Waiver and Amendment No. 3]
| SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 3 DATED AS OF THE DATE FIRST WRITTEN ABOVE TO THE CREDIT AGREEMENT OF LULU’S FASHION LOUNGE, LLC | ||||
| Name of Lender: | ||||
| Monroe Capital MML CLO VI, Ltd. | ||||
| By: Monroe Capital Management LLC, as Asset Manager and Attorney-in-fact | ||||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Director | |||
[Signature Page to Waiver and Amendment No. 3]
| TCW DIRECT LENDING, LLC | ||||
| By: TCW Asset Management Company LLC its Investment Advisor | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
| TCW BRAZOS FUND LLC | ||||
| By: TCW Asset Management Company LLC its Investment Advisor | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
| TCW DIRECT LENDING STRATEGIC VENTURES LLC | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
| TCW SKYLINE LENDING, L.P. | ||||
| By: TCW Asset Management Company LLC its Investment Advisor | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
| WEST VIRGINIA DIRECT LENDING LLC | ||||
| By: TCW Asset Management Company LLC its Investment Advisor | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Waiver and Amendment No. 3]
