LOAN AND SECURITY AGREEMENT AMONG BANK HAPOALIM B.M. as Administrative Agent, Collateral Agent and Joint Lead Arranger
Exhibit 10.1
AMONG
BANK HAPOALIM B.M.
as Administrative Agent, Collateral Agent and Joint Lead Arranger
FEAC AGENT, LLC
as Co-Collateral Agent and Joint Lead Arranger
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders
XCEL BRANDS, INC.,
as Borrower
and
IM BRANDS, LLC,
JR LICENSING, LLC,
H LICENSING, LLC,
C WONDER LICENSING, LLC,
XCEL DESIGN GROUP, LLC,
XXXXXX XXXXX FINE JEWELRY, LLC,
H HERITAGE LICENSING, LLC,
XCEL-CT MFG, LLC
GOLD LICENSING, LLC
as Guarantors
Dated: April 12, 2021
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Table of Contents
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Table of Contents
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Table of Contents
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INDEX OF EXHIBITS AND SCHEDULES
Schedule I | - | Conditions Precedent |
Schedule II | - | Financial Covenants |
Schedule III | - | Addresses for Notices |
Schedule IV | - | Commitments |
Exhibit A | - | Form of Revolving Loan Note |
Exhibit B-1 | - | Form of Term Loan A Note |
Exhibit B-2 | - | Form of Term Loan B Note |
Exhibit C | | Form of Borrowing Base Certificate |
Exhibit D | - | Form of Certificate of Compliance |
Exhibit E | - | Form of Power of Attorney |
Exhibit F | - | Form of Quarterly Royalty Collections Report |
Exhibit G | - | Form of Assignment Agreement |
Exhibit H | | Form of Request for Revolving Loan |
Disclosure Schedule 7.2 | - | Names, Organizational Information and Collateral Locations |
Disclosure Schedule 7.6 | - | Real Estate |
Disclosure Schedule 7.7 | - | Ventures, Subsidiaries and Affiliates |
Disclosure Schedule 7.9 | - | Taxes |
Disclosure Schedule 7.12 | - | Litigation |
Disclosure Schedule 7.13 | - | Intellectual Property |
Disclosure Schedule 7.15 | - | Environmental Matters |
Disclosure Schedule 7.16 | - | Insurance |
Disclosure Schedule 7.17 | - | Deposit and Disbursement Accounts |
Disclosure Schedule 9.10 | - | Indebtedness |
Disclosure Schedule 9.11 | - | Permitted Liens |
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This Loan and Security Agreement is made as of April 12, 2021 by and among XCEL BRANDS, INC., a Delaware corporation (“Borrower”), each other Credit Party executing or becoming a party to this Agreement, the financial institutions from time to time party to this Agreement (collectively, “Lenders” and individually, each a “Lender”), BANK HAPOALIM B.M. (“BHI”) as administrative agent and collateral agent for Lenders (BHI in such capacity together with its successors and assigns in such capacity, “Administrative Agent”) and FEAC Agent, LLC (“FEAC”), as co-collateral agent (FEAC in such capacity together with its successors and assigns in such capacity, “Co-Collateral Agent”).
BACKGROUND
Borrower has requested that (a) the Term Loan A Lenders extend credit to Borrower in the form of Term Loan A on the Closing Date in an aggregate principal amount of $10,000,000, (b) the Term Loan B Lenders extend credit to Borrower in the form of Term Loan B on the Closing Date in an aggregate principal amount of up to $15,000,000, and (c) the Revolving Lenders establish a revolving credit facility for the benefit of the Borrower in an aggregate principal amount of up to $4,000,000.
Lenders have indicated their willingness to extend credit to the Borrower on the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants and undertakings and terms and conditions contained herein, the parties hereto agree as follows:
“Account Debtor” means any Person who is or may become obligated with respect to, or on account of, an Account, Chattel Paper or General Intangibles (including a Payment Intangible).
“Accounting Change” means any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants.
“Accounts” means all “accounts,” as such term is defined in the UCC, now owned or hereafter acquired by any Person.
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“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person or of any business or a division of a Person, (b) the acquisition of Intellectual Property from another Person (without regard to whether such Intellectual Property constitutes all or substantially all of such Person’s assets or Intellectual Property), (c) the acquisition of all or a portion of the Equity Interests of any Person, or (d) a merger or consolidation or other combination with another Person.
“Acquisition Documentation” means with respect to an Acquisition (a) notice to Agents of such Acquisition setting forth in reasonable detail the terms and conditions of such Acquisition, pro forma financial statements of Borrower and the Included Subsidiaries after giving effect to the consummation of such Acquisition and the incurrence or assumption of any Indebtedness in connection therewith and to the extent available, a due diligence package with respect to such Acquisition, in each case, prior to closing of such Acquisition; (b) a certificate of a Responsible Officer of Borrower demonstrating on a pro forma basis, after giving effect to the consummation of such Acquisition, compliance with the Financial Covenants set forth on Schedule II calculated as of the last day of the most recent completed Fiscal Quarter for which financial statements have been delivered; (c) to the extent available, such other information agreements, instruments and other documents as Agents may reasonably request; and (d) as soon as available, executed counterparts of the respective agreements, documents or instruments pursuant to which such Acquisition is to be consummated including any schedules to such agreements, documents or instruments and all other material ancillary agreements, instruments and documents to be executed or delivered in connection therewith and, to the extent required under the related acquisition agreement, all consents and approvals from applicable Governmental Authorities and other Persons.
“Additional Financing” means Indebtedness incurred by Credit Parties after the Closing Date (other than the Obligations) in an additional amount not to exceed $50,000,000 to the extent consented to by the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by Administrative Agent.
“Affiliate” means with respect to any Person (a) each other Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more of the Equity Interests having ordinary voting power for the election of directors of such Person; (b) each other Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person; or (c) each of such Person’s officers, directors, joint venturers and partners. For the purpose of this definition, “control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
“Agent Report” has the meaning given to such term in Section 13.5(c).
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“Agents” means the collective reference to Administrative Agent and Co-Collateral Agent. Singular references in this Agreement to an “Agent” refer to the Administrative Agent and/or the Co-Collateral Agent, as the context may require.
“Agreement” means this Agreement including all appendices, exhibits or schedules attached or otherwise identified thereto, restatements and modifications and supplements thereto, and any appendices, exhibits or schedules to any of the foregoing, each as in effect at the time such reference becomes operative; provided, that except as specifically set forth in this Agreement, any reference to the Disclosure Schedules to this Agreement shall be deemed a reference to the Disclosure Schedules as in effect on the Closing Date or in a written amendment thereto executed by Borrower and Agents.
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction to the extent applicable to any Credit Party or any of Subsidiary of a Credit Party from time to time concerning or relating to bribery, corruption or money laundering.
“Applicable Agent” means Administrative Agent or Co-Collateral Agent, as context requires.
“Applicable Margin” means with respect to (a) Base Rate Loans, one and one-half percent (1.50%), (b) with respect to LIBOR Rate Loans that are Revolving Loans, three and three-quarter percent (3.75%), (c) with respect Term Loan A, four percent (4.00%), (d) with respect to Term Loan B, eight percent (8.00%) and (e) with respect to each Incremental Term Loan, a percentage per annum to be agreed to among the applicable Incremental Term Loan Lenders and Borrower.
“Approved Appraiser” means each of (i) Xxxxxx Xxxxxxxx, (ii) Hilco, (iii) X. Xxxxx f/k/a Great American, (iv) Tiger Group, (v) Consensus and (vi) any other independent appraiser mutually agreed upon among Agents and Borrower.
“Approved Fund” means, with respect to any Lender, any Person (other than a natural Person) that (a) (i) is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business or (ii) temporarily warehouses loans for any Lender or any Person described in clause (i) above and (b) is advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other than an individual) or any Affiliate of any Person (other than an individual) that administers or manages such Lender.
“Assignment” has the meaning given to such term in Section 14.11(b).
“Assignment Agreement” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 14.11 (with the consent of any party whose consent is required by Section 14.11), accepted by Administrative Agent, substantially in the form of Exhibit G or any other form approved by Administrative Agent.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers.
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“Bail-In Legislation” means:
“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101, et seq.).
“Bankruptcy Event” means with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding or a corporate statutory arrangement proceeding having similar effect, is subject to, or any Person that directly or indirectly controls such Person is subject to, a forced liquidation, or has had a receiver, manager, controller, conservator, trustee, administrator, examiner, custodian, monitor, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it or any substantial part of its assets, or, in the good faith determination of Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment; provided, that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, so long as 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 Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Bank Account” means a checking, NOW or money market account or any other account on which Borrower can draw checks with an office of Agent in the United States.
“Base Rate” means the greater on any day of (a) BHI’s stated prime rate as reflected in its books and records, as such prime rate may change from time to time, or (b) 2.00% per annum plus the overnight federal funds rate published by the Federal Reserve Bank of New York. The Base Rate is a reference rate and is not necessarily the lowest interest rate charged by BHI.
“Base Rate Loans” means those Loans bearing interest based upon the Base Rate.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. Section 1010.230.
“BHI” has the meaning given to such term in the preamble to this Agreement.
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“Board Voting Interests” means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
“Books and Records” means all books, records, board minutes, contracts, licenses, insurance policies, environmental audits, business plans, files, computer files, computer discs and other data and software storage and media devices, accounting books and records, financial statements (actual and pro forma), filings with Governmental Authorities and any and all records and instruments relating to, or otherwise necessary or helpful in the collection of or realization upon, the Collateral or Borrower’s business.
“Borrower” has the meaning given to such term in the preamble to this Agreement.
“Borrowing Base” means, as of any date of determination, (a) the aggregate amount of Eligible Accounts multiplied by the Accounts Advance Rate minus (b) all Reserves.
“Borrowing Base Certificate” means a certificate in the form of Exhibit C.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided, that, when used in connection with a LIBOR Rate Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in US Dollar deposits in the London interbank market.
“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any Lender or of any corporation controlling any Lender.
“Capital Expenditures” means all payments or accruals (including obligations under capital leases) for any fixed assets or improvements or for replacements, substitutions or additions thereto, that have a useful life of more than one year and that are required to be capitalized under GAAP.
“Cash Equivalents” means:
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“Cash Management Obligations” means obligations owed by any Credit Party to a Lender in respect of or in connection with Cash Management Services and designated by such Lender and Borrower in writing to Administrative Agent as “Cash Management Obligations”.
“Cash Management Services” means any treasury, depositary, disbursement, lockbox, funds transfer, pooling, netting, overdraft, cash management and similar services and any automated clearing house transfer of funds.
“Change of Control” means the occurrence of any of the following: (a) any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13(d)-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended), directly or indirectly, of Board Voting Interests (or other securities convertible into such Board Voting Interests) representing 51% or more of the combined voting power of all Board Voting Interests of Borrower; (b) during any period of up to 12 consecutive months, Continuing Directors shall cease for any reason to constitute a majority of the board of directors of the Borrower, (c) any event, transaction or occurrence as a result of which Borrower ceases to have the power, alone or in conjunction with others, directly or indirectly, through voting securities, by contract or otherwise, to direct or cause the direction of a Credit Party’s management and policies. As used in this definition of “Change of Control”, Borrower shall be deemed to be a reference to Borrower or any other Credit Party.
“Change of Management” means Xxxxxx X. X’Xxxxx shall no longer have the duties of the Chairman of the Board of Directors of Borrower.
“Charges” means all federal, state, county, city, municipal, local, foreign or other governmental taxes (including taxes owed to PBGC at the time due and payable), levies, customs or other duties, assessments, charges, liens, and all additional charges, interest, penalties, expenses, claims or encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c) the employees, payroll, income or gross receipts of a Credit Party, (d) the ownership or use of any assets by a Credit Party, or (e) any other aspect of a Credit Party’s business.
“Chattel Paper” means all “chattel paper,” as such term is defined in the UCC, now owned or hereafter acquired by any Person.
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“Closing Date” means the Business Day on which the conditions precedent set forth in Sections 6.1 and 6.2 have been satisfied or specifically waived in writing by Administrative Agent and Co-Collateral Agent.
“Collateral” has the meaning given to such term in Section 10.1.
“Commitment” means, for each Lender, the sum of such Lender’s Revolving Loan Discretionary Commitment, such Lender’s Term Loan A Commitment, such Lender’s Term Loan B Commitment and such Lender’s Incremental Term Loan Commitment.
“Commitment Percentage” means, (a) as to any Revolving Lender, such Revolving Lender’s Revolving Loan Percentage, (b) as to any Term Loan A Lender, such Term Loan A Lender’s Term Loan A Percentage, (c) as to any Term Loan B Lender, such Term Loan B Lender’s Term Loan B Percentage and (d) as to any Incremental Term Loan Lender, such Incremental Term Loan Lender’s Incremental Term Loan Percentage, and once each Term Loan has been funded, Commitment Percentages shall be determined for such Term Loan by reference to the outstanding principal balances thereof as of any date of determination rather than the Commitments therefor; provided, further, that following acceleration of the Loans, such term means, as to any Lender, the percentage equivalent of the principal amount of the Loans held by such Lender, divided by the aggregate principal amount of the Loans held by all Lenders.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1, et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” means a compliance certificate substantially in the form of Exhibit D hereto.
“Contingent Acquisition Obligations” means the aggregate cash consideration paid by Credit Parties with respect to Acquisitions consummated after the Closing Date in connection with earnouts and other payments which are triggered by financial performance by any Credit Party.
“Continuing Directors” means in the case of the Borrower and, with respect to any period, the directors of the Borrower on the first day of such period and each other director if, in each case, such other director’s nomination for election to the board of directors of the Borrower is recommended by at least a majority of the then Continuing Directors. As used in this definition of “Continuing Directors”, Borrower shall be deemed to be a reference to Borrower, or any direct or indirect holding company of Borrower.
“Contracts” means all the contracts, undertakings, or agreements (other than rights evidenced by Chattel Paper, Documents or Instruments) in or under which any Person may now or hereafter have any right, title or interest, including any agreement relating to the terms of payment or the terms of performance of any Account.
“Contractual Obligation” means, with respect to any Person, (a) the Organizational Documents of such Person and (b) any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.
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“Control Agreement” means, with respect to any Deposit Account, securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to Agents, among Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Credit Party maintaining such account, effective to grant “control” (within the meaning of Articles 8 and 9 under the applicable UCC) over such account to Administrative Agent.
“Credit Parties” means Borrower and each Guarantor.
“C Wonder” means C Wonder Licensing, LLC, a Delaware limited liability company.
“Debtor Relief Laws” means the Bankruptcy Code and other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, administration, administrative receivership, scheme of arrangement, examinership, reorganization, dissolution, winding up, compromise, arrangement or similar debtor relief or insolvency laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally and including the statutory arrangement provisions of any corporations statute having similar effect.
“Default” means any act or event which, with the giving of notice or passage of time or both, would unless cured or waived become an Event of Default.
“Default Rate” means the sum of (a) the applicable Interest Rate in effect from time to time as respects each Loan and (b) two percent (2.00%).
“Defaulting Lender”: means any Revolving 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 Loans or (ii) pay over to any Lender or any Agent any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Revolving Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Revolving Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied or waived, (b) has notified Borrower or either Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with all or a portion of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Revolving Lender’s good faith determination that a condition precedent (specifically identified and including the particular 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 three (3) Business Days after written request by Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Revolving Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Revolving Loans (unless such Revolving Lender indicates that such position is based on such Revolving Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Revolving Loan under this Agreement cannot be satisfied), provided, that such Revolving Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon each Agent’s and Borrower’s receipt of such certification in form and substance
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reasonably satisfactory to the Agents, (d) has, or has a direct or indirect parent that (i) admits that it is insolvent, or (ii) has become the subject of a Bankruptcy Event or (e) has, or has a direct or indirect parent that has, become subject to a Bail-In Action. Any determination by an Agent that a Revolving Lender is a Defaulting Lender under clauses (a) through (e) above shall be conclusive and binding absent manifest error, and such Revolving Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to Borrower and each Lender.
“Deposit Accounts” means all “deposit accounts” as such term is defined in the UCC, now or hereafter held in the name of any Person.
“Determination Time” means 12:00 noon (or any later time determined by Agent in its sole discretion), New York City time, of a Business Day that is three (3) Business Days prior to the date of the applicable Loan.
“Disclosure Schedules” means the Disclosure Schedules prepared by Borrower and denominated as Disclosure Schedules 7.2 through 9.11 in the Index of Exhibits and Schedules to this Agreement.
“Disposition” means with respect to any assets, any sale, license, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (excluding Liens); and the terms “Dispose” and “Disposed of” shall have correlative meanings.
“Dollars”, “dollars” and “$” each mean the lawful money of the United States of America.
“Documents” means all “documents,” as such term is defined in the UCC, now owned or hereafter acquired by any Person, wherever located, including all bills of lading, dock warrants, dock receipts, warehouse receipts, and other documents of title, whether negotiable or non-negotiable.
“EBITDA” means, for the applicable period, for a Person, an amount equal to (a) Net Income for Borrower and the Included Subsidiaries on a consolidated basis for such period, minus, (b) to the extent included in calculating Net Income for Borrower and the Included Subsidiaries on a consolidated basis, the sum of, without duplication, (i) interest income (whether cash or non-cash) for such period, (ii) income tax credits for such period, (iii) gain from extraordinary or non-recurring items for such period (including, without limitation, non-cash items related to purchase accounting) and (iv) deferred compensation payments (regardless of when accrued), plus (c) the following to the extent deducted in calculating such Net Income, (i) interest charges for such period, (ii) the provision for all federal, state, local and foreign taxes payable for such period and the amount of payments permitted pursuant to Section 9(h)(ii), (iii) the amount of depreciation and amortization expense for such period, (iv) the transaction fees, costs and expenses incurred in connection with (A) the negotiation and execution of this Agreement and the other Loan Documents and any amendments thereto, (B) Permitted Acquisitions, and (C) the LG Acquisition, (v) all other extraordinary or non-recurring non-cash charges (including, without limitation, non-cash items related to purchase accounting), (vi) deferred management salaries (accrued but not paid), (vii) all non-cash compensation (including without limitation, stock or equity compensation) in such period, (viii) the amount of the non-cash bad debt reserve taken
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during the Fiscal Years ending December 31, 2020 and December 31, 2021 relating to the bankruptcy of Lord & Xxxxxx, Le Tote, Steinmart and Belks in an aggregate amount not to exceed $300,000, (ix) costs and expenses incurred in connection with the termination of real property leases from and after the Closing Date in an amount not to exceed $200,000 and (x) expenses not to exceed $100,000 to in connection with a proposed financing arrangement with Blue Torch.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“Eligible Account” means, at any time of determination, a Wholesale Account owned by a Credit Party which satisfies the general criteria set forth below and which is otherwise acceptable to Administrative Agent in its sole discretion. A Wholesale Account shall be deemed to meet the current general criteria if:
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“Eligible Assignee” means (a) any Lender, any Affiliate of a Lender and any Approved Fund and (b) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course of its business; provided, that “Eligible Assignee” shall not include (i) any Lender that is, as of the date of the applicable assignment, a Defaulting Lender or an Impacted Lender, (ii) any natural Person or (iii) any Credit Party or any of its Affiliates.
“Employment Agreement” means any employment agreement with a natural person identified in the definition of “Life Insurance Policies” or any other spokesperson or key principal of a Credit Party whose name or likeness is associated with the Intellectual Property which is included in the IP Appraisal and in any event excluding the employment contracts for any natural person who is an officer of a Credit Party but whose name or likeness is not associated with the Intellectual Property of a Credit Party.
“Environmental Laws” means all federal, state and local laws, statutes, ordinances and regulations, now or hereafter in effect, and in each case as amended or supplemented from time to time, and any applicable judicial or administrative interpretation thereof relating to the regulation and protection of human health, safety, the environment and natural resources (including ambient air, surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation).
“Environmental Liabilities” means all liabilities, obligations, responsibilities, remedial actions, removal costs, losses, damages of whatever nature, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim, suit, action or demand of whatever nature by any Person, and which relate to any health or safety condition regulated under any Environmental Law, environmental permits or in connection with any Release, threatened Release, or the presence of a Hazardous Material.
“Equipment” means all “equipment” as such term is defined in the UCC, now owned or hereafter acquired by any Person, wherever located.
“Equity Funded Acquisition” means an Acquisition by an Equity Funded Subsidiary as long as (a) no Default or Event of Default exists prior to or after giving effect to such Acquisition on a pro forma basis, (b) the consideration for such Acquisition consists solely of a combination of Equity Interests of Borrower and/or the proceeds of the issuance of Equity Interests of Borrower, provided that the aggregate amount of Equity Interests of Borrower and/or proceeds of such Equity Issuance for Equity Funded Acquisitions does not exceed $20,000,000 during the term of this Agreement and (c) the Credit Parties have demonstrated pro forma compliance with Section 8.2 after giving effect to such Acquisition, in each case as determined by Agents following Agents’ receipt and review of such documentation and other supporting evidence as Agents may reasonably request.
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“Equity Funded Subsidiary” means a Subsidiary formed or acquired by a Credit Party after the Closing Date in connection with an Equity Funded Acquisition which Subsidiary complies with Section 7.25.
“Equity Interests” means all certificated and uncertificated shares, options, warrants, membership interests, general or limited partnership interests, participation or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common Equity Interests, preferred Equity Interests, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act).
“Equity Interests Holder” means, as respects each Person, each holder of Equity Interests of such Person.
“ERISA” means the Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and any regulations promulgated thereunder.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the IRC or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(b) of the IRC or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Credit Party of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Credit Party from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (f) the incurrence by any Credit Party of any liability with respect to any withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any Credit Party of any notice, or the receipt by any Multiemployer Plan from any Credit Party of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Erroneous Payment” has the meaning assigned to it in Section 13.11(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 13.11(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 13.11(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 13.11(d).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 13.11(d).
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“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default” has the meaning given to such term in Section 12.1.
“Exchange Act” means the Securities Exchange Act of 1934.
“Excluded Accounts” means any (a) zero balance accounts, (b) payroll accounts, (c) trust accounts, (d) employee benefits accounts, (e) 401(k) accounts, (f) pension fund accounts, (g) tax withholding accounts (to the extent maintained by a Credit Party exclusively for the purpose of maintaining or holding tax withholding amounts payable to applicable Governmental Authorities), (h) cash collateral accounts subject to Liens permitted pursuant to clause (i) of the definition of “Permitted Liens”, and (i) other Deposit Accounts and Securities Accounts so long as the aggregate amount held in all such Deposit Accounts and Securities Accounts that are not otherwise under the control (as such term is used in Section 9.104 of the UCC) of Administrative Agent does not exceed $500,000 for any consecutive three (3) Business Day period at any one time outstanding.
“Excluded Acquisition” means an Acquisition by an Excluded Subsidiary for which (a) Lenders decline to provide financing pursuant to Section 7.23, (b) Outside Financing is provided to Borrower or a Credit Party following compliance by Borrower with Section 7.23; (c) no Default or Event of Default exists prior to or after giving effect to such Acquisition on a pro forma basis would occur; (d) after giving pro forma effect to such Acquisition the Fixed Charge Coverage Ratio would be at least 1.50 to 1.00; (e) the amount of balance sheet cash (excluding cash from new equity issued by Borrower) contributed by Credit Parties to consummate such acquisitions does not exceed $500,000 in any Fiscal Year or an aggregate amount of $1,000,000 during the term of this Agreement; (f) the aggregate amount proceeds of such Equity Issuance for Exempt Acquisitions and Excluded Acquisitions does not exceed $10,000,000 during the term of this Agreement and (g) Borrower has entered into a services agreement on terms reasonably satisfactory to Lenders (provided that such approval is not unreasonably withheld, conditioned or delayed), with such Excluded Subsidiary pursuant to which such Excluded Subsidiary shall compensate Borrower on market terms for the services and management provided to such Excluded Subsidiary by Borrower.
“Excluded Assets” means a collective reference to:
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“Excluded Equity Interests” means any (a) Equity Interests of Excluded Subsidiaries and (b) an voting Equity Interests in excess of 65% of the outstanding voting stock of any Foreign Subsidiary. For the purposes of this definition, “voting Equity Interests” means, with respect to any issuer, the issued and outstanding shares of each class of Equity Interests of such issuer entitled to vote (within the meaning of Treasury Regulations § 1.956-2(c)(2)).
“Excluded Subsidiary” means (a) a Subsidiary formed by a Credit Party after the Closing Date solely to effectuate an Acquisition and such Acquisition has not yet been consummated, (b) Longaberger Licensing, LLC, The Beauty Solution, LLC, Tribe Cosmetics LLC and Xcel Acquisition Co., LLC and (c) a Subsidiary formed or acquired by a Credit Party after the Closing Date in connection with an Excluded Acquisition which is financed in whole or in part with Outside Financing following Borrower’s compliance with Section 7.23.
“Excluded Swap Obligation” means with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract
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participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Credit Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion 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.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to an Agent or any Lender , or required to be withheld or deducted from any payment to any such recipient: (a) Taxes imposed on (or measured by) net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, US Federal withholding Taxes that are imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such recipient’s failure to comply with Section 3.4, and (d) any US Federal withholding Taxes imposed under FATCA.
“Exempt Acquisition” means an Acquisition by an Exempt Subsidiary as long as (a) no Default or Event of Default exists prior to or after giving effect to such Acquisition on a pro forma basis, (b) the consideration for such Acquisition consists solely of a combination of Seller Financing or Take-Back Financing and/or Equity Interests of Borrower and/or the proceeds of the issuance of Equity Interests of Borrower, provided that the aggregate amount of Equity Interests of Borrower and/or proceeds of such Equity Issuance for Exempt Acquisitions and Excluded Acquisitions does not exceed $10,000,000 during the term of this Agreement and (c) Borrower has entered into a services agreement on terms reasonably satisfactory to Lenders (provided that such approval is not unreasonably withheld, conditioned or delayed), with such Exempt Subsidiary pursuant to which such Exempt Subsidiary shall compensate Borrower on market terms for the services and management provided to such Exempt Subsidiary by Borrower.
“Exempt Subsidiary” means a Subsidiary formed or acquired by a Credit Party after the Closing Date in connection with an Exempt Acquisition.
“FATCA” means Sections 1471 through 1474 of the IRC, any current or future regulations or official interpretations thereof, any intergovernmental agreements with respect thereto, any law, regulation, or other official guidance enacted in a non-US jurisdiction pursuant to an intergovernmental agreement with respect thereto, any agreements entered into pursuant to Section 1471(b)(1) of the IRC and any law, regulation, or other published administrative guidance implementing an intergovernmental agreement entered into in connection with the implementation of such sections of the IRC.
“FCPA” means United States Foreign Corrupt Practices Act of 1977.
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“FEAC” has the meaning given to such term in the preamble to this Agreement.
“Federal Funds Effective Rate” means for any day, the weighted average of the rates on overnight Federal funds, as published on the next succeeding Business Day by the Federal Reserve Bank of New York or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1%) of the quotations for the day for such transactions received by Administrative Agent from three federal funds brokers of recognized standing selected by it.
“Fee Letter” means that certain Fee Letter Agreement dated as of the date of this Agreement by and among the Agents and the Borrower.
“Financial Statements” means income statement, balance sheet and statement of cash flows of (a) Borrower and the Included Subsidiaries, internally prepared for each Fiscal Month and Fiscal Quarter, (b) Borrower and its Subsidiaries, internally prepared for each Fiscal Month and Fiscal Quarter and (c) Borrower and its Subsidiaries, audited each Fiscal Year, in each case prepared in accordance with GAAP as it relates to financial statements prepared for any Fiscal Quarter or Fiscal Year.
“Fiscal Month” means any of the monthly accounting periods of each Credit Party.
“Fiscal Quarter” means any of the quarterly accounting periods of each Credit Party.
“Fiscal Year” means the 12 month period of each Credit Party ending on December 31 of each year. Subsequent changes of the Fiscal Year of each Credit Party shall not change the term “Fiscal Year” unless Agent shall consent in writing to such change.
“Fixed Charge Coverage Ratio” means for any period, as respects any Person, the ratio of (a) an amount equal to (i) EBITDA of such Person for such period minus (b) the sum of (i) the LG Earnout Payments actually paid during such period (to the extent not included in the calculation of Net Income) and (ii) the Contingent Acquisition Obligations actually paid during such period to (b) the Fixed Charges for such period.
“Fixed Charges” means for any period, as respects any Person, the sum of (a) the cash interest expense on Indebtedness (other than the SBA PPP Loans) of such Person for such period, (b) the principal amount of total Indebtedness (other than the SBA PPP Loans) of such Person having a scheduled due date during such period other than any such amounts payable in Equity Interests, (c) unfinanced Capital Expenditures, (d) all federal, state, local and foreign taxes paid, including payments made pursuant to Section 9.3(c) hereof, during such period and (e) all other Restricted Payments made in cash by such Person during such period, other than Restricted payments made to Borrower by a direct or indirect Subsidiary of Borrower.
“Foreign Lender” means any Lender that is not a US Person.
“Foreign Subsidiary” means, with respect to any Person, a Subsidiary of such Person that is a “controlled foreign corporation” under Section 957 of the IRC.
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“GAAP” means generally accepted accounting principles, practices and procedures in effect from time to time in the United States of America.
“General Event of Default” means an Event of Default that is not a Specified Event of Default.
“General Intangibles” means all “general intangibles” as such term is defined in the UCC, now owned or hereafter acquired by any Person including all right, title and interest which such Person may now or hereafter have in or under any Contract, all Payment Intangibles, customer lists, Licenses, Intellectual Property, interests in partnerships, joint ventures and other business associations, permits, proprietary or confidential information, inventions (whether or not patented or patentable), technical information, procedures, designs, knowledge, know-how, Software, data bases, data, skill, expertise, experience, processes, models, drawings, materials, Books and Records, Goodwill (including the Goodwill associated with any Intellectual Property), all rights and claims in or under insurance policies (including insurance for fire, damage, loss, and casualty, whether covering personal property, real property, tangible rights or intangible rights, all liability, life, key-person, and business interruption insurance, and all unearned premiums), uncertificated securities, choses in action, deposit accounts, rights to receive tax refunds and other payments, rights to receive dividends, distributions, cash Instruments and other property in respect of or in exchange for pledged Equity Interests and Investment Property, and rights of indemnification.
“Gold Licensing” means Gold Licensing, LLC, a Delaware limited liability company.
“Goods” means all “goods”, as such term is defined in the UCC, now owned or hereafter acquired by any Person, wherever located, including embedded software to the extent included in “goods” as defined in the UCC.
“Goodwill” means all goodwill, trade secrets, proprietary or confidential information, technical information, procedures, formulae, quality control standards, designs, operating and training manuals, customer lists, and distribution agreements now owned or hereafter acquired by any Person.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, taxing, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Guaranteed Indebtedness” means, as to any Person, any obligation of such Person guaranteeing any indebtedness, lease, dividend, or other obligation (“primary obligations”) of any other Person (the “primary obligor”) in any manner, including any obligation or arrangement of such guaranteeing Person (whether or not contingent): (i) to purchase or repurchase any such primary obligation; (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of
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such primary obligation; or (iv) to indemnify the owner of such primary obligation against loss in respect thereof.
“Guarantor” means IM Brands, JR Licensing, H Licensing, C Wonder, Xcel Design, JR Jewelry, H Heritage, Xcel-CT, Gold Licensing and each other Person which guarantees or supports the Obligations of any Credit Party to any Secured Party in connection with the transactions contemplated by this Agreement.
“Guaranty” means any agreement to perform all or any portion of the Obligations on behalf of Borrower, in favor of, and in form and substance satisfactory to Agent, together with all amendments, modifications and supplements thereto, and shall refer to such Guaranty as the same may be in effect at the time such reference becomes operative.
“Hazardous Material” means any substance, material or waste which is regulated by or forms the basis of liability now or hereafter under, any Environmental Laws, including any material or substance which is (a) defined as a “solid waste,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or other similar term or phrase under any Environmental Laws, (b) petroleum or any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB’s), or any radioactive substance.
“Hazardous Waste” has the meaning given to such term in the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et. seq.).
“Hedge Agreements” means all interest rate or currency swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements (which, for the avoidance of doubt, shall include any master agreement that governs the terms of one or more interest rate or currency swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements) entered into by any Credit Party providing for protection against fluctuations in interest rates, currency exchange rates, commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies.
“H Heritage” means the Heritage Licensing, LLC, a Delaware limited liability company.
“H Heritage Purchase Agreement” means the Asset Purchase Agreement among Borrower, H Heritage, The H Company IP, LLC and House of Halston, LLC.
“H Licensing” means H Licensing, LLC, a Delaware limited liability company.
“IM Brands” means IM Brands, LLC, a Delaware limited liability company.
“Impacted Lender” means any Revolving Lender that fails to provide Administrative Agent, within three (3) Business Days following Administrative Agent’s written requests, satisfactory assurance that such Revolving Lender will not become a Defaulting Lender.
“Included Subsidiary” means a Subsidiary of Borrower that is a party to this Agreement on the Closing Date or that becomes a party to this Agreement after the Closing Date.
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“Incremental Facility Amendment” has the meaning given to such term in Section 2.3.
“Incremental Term Loan Closing Date” has the meaning given to such term in Section 2.3.
“Incremental Term Loan Commitment” means as to any Incremental Term Loan Lender, the obligation of such Incremental Term Loan Lender to make an Incremental Term Loan to Borrower hereunder pursuant to an Incremental Facility Amendment in a principal amount not to exceed the amount set forth under the heading “Incremental Term Loan Commitment” opposite such Incremental Term Loan Lender’s name on Schedule IV, as Schedule IV may be amended in connection with an Incremental Facility Amendment or in the Assignment Agreement pursuant to which such Incremental Term Loan Lender became a party hereto, in each case as the same may be changed from time to time pursuant to the terms hereof.
“Incremental Term Loan Lender” each Person that is a holder of an Incremental Term Loan.
“Incremental Term Loan Percentage” means with respect to any Incremental Term Loan Lender, the percentage which the aggregate principal amount of such Incremental Term Loan Lender’s Incremental Term Loan then outstanding constitutes of the aggregate principal amount of the Incremental Term Loans of all Incremental Term Loan Lenders then outstanding.
“Incremental Term Loans” has the meaning given to such term in Section 2.3.
“Indebtedness” of any Person means (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (including reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers’ acceptances, whether or not matured, but not including obligations to trade creditors incurred in the ordinary course of business and not more than 90 days past due); (ii) all obligations evidenced by notes, bonds, debentures or similar instruments; (iii) all indebtedness created or arising under any conditional sale or other title retention agreements with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (iv) all obligations under capital leases that are properly classified as a liability on a balance sheet in accordance with GAAP; (v) all Guaranteed Indebtedness; (vi) all Indebtedness referred to in clauses (i), (ii), (iii), (iv) or (v) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; and (vii) the Obligations.
“Indemnified Person” has the meaning given to such term in Section 14.3(b).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise defined in clause (a), Other Taxes.
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“Instruments” means all “instruments”, as such term is defined in the UCC, now owned or hereafter acquired by any Person, wherever located, including all certificated securities and all notes and other evidences of indebtedness, other than instruments that constitute, or are a part of a group of writings that constitute, Chattel Paper.
“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, state, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, service marks, technology, internet domain name registrations and uniform resource locations (URLs) to which the registered domain names resolve, know-how and processes, recipes, formulas, trade secrets and all rights to xxx at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Intellectual Property Security Agreement” means each Intellectual Property Security Agreement made in favor of Administrative Agent by each applicable Credit Party.
“Intercreditor Agreement” means any intercreditor and subordination agreement in form and substance acceptable to the Agents from time to time with respect to Indebtedness of or Liens on assets of any Credit Party.
“Interest Payment Date” means the last Business Day of each calendar month.
“Interest Rate” means with respect to (a) Revolving Loans that are LIBOR Rate Loans, the sum of the LIBOR Rate plus the Applicable Margin for Revolving Loans bearing interest at the LIBOR Rate, (b) Revolving Loans that are Base Rate Loans, the sum of the Base Rate plus the Applicable Margin for Base Rate Loans, (c) the Term Loan A, the sum of the LIBOR Rate plus the Applicable Margin for the Term Loan A, (d) the Term Loan B, the sum of the LIBOR Rate plus the Applicable Margin for the Term Loan B, and (e) each Incremental Term Loan, the interest rate set forth in the applicable Incremental Facility Amendment.
“Inventory” means all “inventory”, as such term is defined in the UCC, now or hereafter owned or acquired by any Person, wherever located.
“Investments” has the meaning given to such term in Section 9.4.
“Investment Property” means all “investment property”, as such term is defined in the UCC, now owned or hereafter acquired by any Person, wherever located.
“IP Appraisal” means an appraisal (or update thereto) of the Intellectual Property owned by Credit Parties reasonably satisfactory to Administrative Agent and Co-Collateral Agent, conducted by an Approved Appraiser selected by Agents and received by Co-Collateral Agent.
“IP Office” means each of the United States Patent and Trademark Office and the United States Copyright Office.
“IRC” and “IRS” means respectively, the Internal Revenue Code of 1986, as amended, and the Internal Revenue Service, and any successors thereto.
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“JR Jewelry” means Xxxxxx Xxxxx Fine Jewelry, LLC, s Delaware limited liability company.
“JR Licensing” means JR Licensing, LLC, a Delaware limited liability company.
“Lender” has the meaning given to such term in the preamble to this Agreement.
“Letter-of-Credit Rights” has the meaning given to “letter-of-credit rights” as such term is defined in the UCC, now owned or hereafter acquired by any Person, including rights to payment or performance under a letter of credit, whether or not such Person, as beneficiary, has demanded or is at the time entitled to demand payment or performance.
“Leverage Ratio” means at the date of determination thereof, the ratio of (a) Indebtedness excluding the SBA PPP Loans to (b) EBITDA for the twelve month period then ended.
“LG Acquisition” means the transactions contemplated by the LG Acquisition Agreement.
“LG Acquisition Agreement” means the Asset Purchase Agreement dated as of March 30, 2021 among Xxxx Xxxxxxxxx, Ltd., Xxxx Xxxxxxxxx and Gold.
“LG Earnout Payments” means cash payments made by Credit Parties pursuant to the LG Acquisition Agreement after the Closing Date pursuant to the terms of the LG Acquisition Agreement excluding an amount equal to $3,641,000 in the aggregate paid by Gold on or before August 31, 2021.
“LIBOR Rate” means a rate of interest equal to the greater of (a) 1.00% per annum, and (b) the rate of interest per annum determined on the basis of the rate for deposits in dollars for an interest period equal to one month (commencing on the date of determination of such interest rate) as published by ICE Benchmark Administration Limited, a United Kingdom company, or a comparable or successor quoting service approved by Administrative Agent, at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day.
“LIBOR Rate Loans” means those Loans bearing interest based upon the LIBOR Rate.
“License” means any rights under any written agreement now or hereafter acquired by any Person to use any trademark, trademark registration, copyright, copyright registration or invention for which a patent is in existence or other license of rights or interests now held or hereafter acquired by any Person.
“Lien” means any mortgage, security deed or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, security interest, charge, claim or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever including any lease or other title retention agreement, any financing lease having
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substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.
“Life Insurance Amount” means (a) for the period commencing ninety (90) days following the Closing Date and ending on the second anniversary of the Closing Date, $10,000,000, (b) during the period commencing on the second anniversary of the Closing Date and ending on the third anniversary of the Closing Date, $7,500,000 and (c) at all times on and after the third anniversary of the Closing Date, $5,000,000.
“Life Insurance Assignment” means an Assignment of Life Insurance Policy as Collateral executed by the owner and the beneficiary thereof, in form and substance satisfactory to Agent, granting Agent for the benefit of Secured Parties a Lien on a Life Insurance Policy to secure payment of the Obligations.
“Life Insurance Policies” means collectively, the life insurance policies maintained by Credit Parties upon the lives of (a) Xxxxx Xxxxxxx in the amount maintained by Credit Parties which may be reduced but in no event to an amount no less than the outstanding principal balance of the Term Loans, (b) Xxxx Xxxxxxxxx in an amount no less than the Life Insurance Amount and (c) any other the spokespersons and key principals of each Credit Party as agreed to between Agents and Borrower in amounts to be agreed upon between Agents and Borrower.
“Liquid Assets” means (a) assets (which are unencumbered except as permitted pursuant to the terms of the Loan Documents) in the form of cash and Cash Equivalents deposited in Deposit Accounts at BHI or Deposit Accounts subject to a Control Agreement, less (b) the amount of any Liens thereon and any unsatisfied judgment, writ, order of attachment, levy or garnishment entered or issued against Borrower or any of the Included Subsidiaries.
“Litigation” means any claim, lawsuit, litigation, investigation or proceeding of or before any arbitrator or Governmental Authority.
“Loan Documents” means this Agreement, each Note, the Fee Letter, each Guaranty, each Power of Attorney, each Intellectual Property Security Agreement, each Pledge Agreement, each Control Agreement, each Life Insurance Assignment and all other documents, instruments and agreements now or hereafter executed and/or delivered in connection herewith or therewith.
“Loan to Value Ratio” means, at any date, the ratio of (a) the outstanding principal amount of the Term Loans to (b) Net Orderly IP Liquidation Value.
“Loans” means the Revolving Loans, the Term Loans and all other extensions of credit hereunder or under any Loan Document.
“Margin Stock” has the meaning given to such term in Section 7.8.
“Material Adverse Effect” means a material adverse effect on (a) the condition, operations, assets or business of Credit Parties taken as a whole, (b) Credit Parties taken as whole ability to pay or perform the Obligations in accordance with the terms hereof or any Loan Document, (c) the value of the Collateral, the Liens on the Collateral or the priority of any such
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Lien or (d) the practical realization of the benefits of Agent’s and Lenders’ rights and remedies under this Agreement and the Loan Documents.
“Material Contract” means any (a) QVC Agreement, (b) any Employment Agreement or (c) any other contract to which any Credit Party is a party, in the case of such contract described in clause (c), the breach, nonperformance or cancellation of which could reasonably be expected, on a pro-forma basis, to result in a breach of the financial covenants set forth on Schedule II.
“Maximum Legal Rate” has the meaning given to such term in Section 5.1(a)(iv).
“Maximum Revolving Loan Amount” means $4,000,000.
“Minimum Actionable Amount” means $750,000.
“Multiemployer Plan” means a “multiemployer plan,” as defined in Section 4001(a) (3) of ERISA, to which any Credit Party is making, is obligated to make, has made or been obligated to make, contributions on behalf of participants who are or were employed by any of them.
“Net Income” means, for the applicable period, for Borrower and the Included Subsidiaries on a consolidated basis, the net income (or loss) after taxes for such period determined in accordance with GAAP, but excluding (a) any net income of minority-owned Subsidiaries (except to the extent of net income distributed or representing a management fee or other similar fee), (c) unrealized gains or losses due solely to fluctuations in currency values, (d) earnings (or losses) resulting from my revaluation or write-up or write-down of assets and (e) unrealized gains or losses under all interest rate or currency forwards, options, swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements entered into by Borrower or any Included Subsidiary providing for protection against fluctuations in interest rates, currency exchange rates, commodity prices, or the exchange of nominal interest obligations, either generally or under specific contingencies.
“Net Orderly IP Liquidation Value” means, as of the applicable date of determination with respect to the Intellectual Property of the Credit Parties, the “net orderly liquidation value” or “NOLV” thereof as such terms are used in the most recent IP Appraisal as determined in a method consistent with industry standards for such appraisals, less reserves established by Co-Collateral Agent from time to time in its good faith judgment.
“Net Worth” means as at any date of determination an amount equal to (a) all of the assets of Borrower and the Included Subsidiaries on a consolidated basis that, in accordance with GAAP, are properly classified as assets on such date minus (b) all liabilities of Borrower and the Included Subsidiaries on a consolidated basis that, in accordance with GAAP, are properly classified as liabilities at such date plus (c) the amount of depreciation and amortization expenses and write downs of general intangibles commencing with the Fiscal Quarter most recently preceding the Closing Date and ending on such date of determination.
“Notes” means the collective reference to the Revolving Loan Notes and the Term Notes.
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“Obligations” means the unpaid principal of and interest and fees on (including interest and fees accruing after the maturity of the Loans and interest and fees accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Credit Party, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) the Loans, and all other obligations and liabilities of the Credit Parties to any Agent or to any Lender or any Qualified Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any Specified Hedge Agreement, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs or expenses (including all fees, charges and disbursements of counsel to any Agent or to any Lender that are required to be paid by any Credit Party pursuant hereto), and any Cash Management Obligations; provided, that (i) obligations of any Credit Party under any Specified Hedge Agreement or any Cash Management Obligations shall be secured and guaranteed pursuant to the Loan Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement or any other Loan Document shall not require the consent of holders of obligations under Specified Hedge Agreements or holders of any Cash Management Obligations. Notwithstanding the foregoing, the “Obligations” of any Credit Party shall not include any Excluded Swap Obligation of such Credit Party.
“OFAC” means as defined in Section 7.26(b).
“OFAC Sanctions Programs means (a) the Requirements of Law and executive orders administered by OFAC, including, without limitation, Executive Order No. 13224, and (b) the list of Blocked Persons, in each case, as renewed, extended, amended, or replaced.
“Organizational Documents” means with respect to any Person and as applicable, the certificate of incorporation, registration or formation, memorandum or articles of association, bylaws, limited liability company agreement, limited partnership agreement or other organizational documents of such Person.
“Other Connection Taxes” means with respect to any Agent or any Lender, Taxes imposed as a result of a present or former connection between such Agent or such Lender and the jurisdiction imposing such Tax (other than a connection arising from such Agent or such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Lender” has the meaning given to such term in Section 4.4.
“Other Taxes” means any and all present or future recording, stamp, court or documentary, property, intangible or filing or similar Taxes imposed by any Governmental Authority arising from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document.
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“Outside Financing” means financing other than Seller Financing or Take-Back Financing obtained by an Excluded Subsidiary from a Person other than Lenders provided that Borrower has complied with Section 7.23 of this Agreement.
“Participant Register” has the meaning given to such term in Section 14.11(g).
“PATRIOT Act” means Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001).
“Payment Intangible” has the meaning give to the term “payment intangible” in the UCC and in any event shall include, a General Intangible under which the Account Debtor’s principal obligation is a monetary obligation.
“Payment Office” means 0000 Xxxxxx xx xxx Xxxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other place as Administrative Agent may from time to time designate in writing.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Permitted Acquisition” means any Acquisition by (a) a Credit Party of Intellectual Property assets of a Target or (b) a Credit Party of more than 50% of the Equity Interests of a Target organized under the laws of any State in the United States causing such Target to become a Subsidiary of such Credit Party, in each case, to the extent (i) not hostile and approved by the board of directors (or similar body) and/or the Equity Interests Holders of the Target and (ii) that each of the following conditions shall have been satisfied: (A) Agents shall have received the draft Acquisition Documentation relating thereto at least fifteen (15) days prior to the consummation of such Acquisition in accordance with such Acquisition Documentation; and (B) no Default or Event of Default shall then exist or would exist after giving effect thereto; and (iv) Agents and Required Lenders shall have approved such Acquisition and any new Subsidiary has satisfied the requirements of Section 7.25.
“Permitted Liens” means the following Liens: (a) Liens for Charges, either not yet due and payable or to the extent that nonpayment thereof is permitted by the terms of Section 7.10; (b) pledges or deposits securing obligations under worker’s compensation, unemployment insurance, social security or public liability laws or similar legislation; (c) pledges or deposits securing bids, tenders, contracts (other than contracts for the payment of money), leases to which any Credit Party is a party as lessee, surety and appeal bonds, performance bonds and other obligations of a like nature incurred or made in the ordinary course of business; (d) deposits securing public or statutory obligations of any Credit Party; (e) inchoate and unperfected workers’, mechanics’, or similar liens arising in the ordinary course of business so long as such Liens attach only to Equipment, fixtures or real estate; (f) carriers’, warehousemen’s, suppliers’ or other similar possessory liens arising in the ordinary course of business and securing indebtedness not yet due and payable; (g) deposits of money securing, or in lieu of, surety, appeal or customs bonds in proceedings to which any Credit Party is a party; (h) Purchase Money Liens securing Purchase Money Indebtedness (or rent) to the extent permitted under this Agreement; (i) Liens in existence on the Closing Date as disclosed on Disclosure Schedule 9.11, provided that (1) no such Lien is spread to cover additional property after the Closing Date and (2) the amount of Indebtedness secured thereby is limited to the amount set forth on Disclosure Schedule 9.11 as of the Closing
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Date; (j) the interests of non-exclusive licensees under license agreement entered into in the ordinary course of business; (k) Liens in favor of Administrative Agent for the benefit of Secured Parties securing the Obligations; (l) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business that do not materially interfere with the ordinary conduct of the business of Credit Parties; and (m) Liens granted in connection with Seller Financing provided that such Liens are limited to solely to the assets of the Person being acquired and such Liens do not include a Lien on any Equity Interests held by a Credit Party in such Person.
“Person” means any individual, sole proprietorship, partnership, limited liability partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, public benefit corporation, entity or government (whether federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof), and shall include such Person’s successors and assigns.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title III of ERISA or Section 412 of the IRC or Section 302 of ERISA, and in respect of which a Credit Party is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Prior Indebtedness” means the Indebtedness and obligations owing by Borrower to BHI pursuant to the terms of the Second Amended and Restated Loan and Security Agreement dated as of February 11, 2019, as amended.
“Proceeds” means “proceeds”, as such term is defined in the UCC and, in any event, shall include: (a) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to any Credit Party or any other Person from time to time with respect to any Collateral; (b) any and all payments (in any form whatsoever) made or due and payable to a Credit Party from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of any Collateral by any governmental body, governmental authority, bureau or agency (or any person acting under color of governmental authority); (c) any claim of a Credit Party against third parties (i) for past, present or future infringement of any Intellectual Property or (ii) for past, present or future infringement or dilution of any trademark or trademark license or for injury to the goodwill associated with any trademark, trademark registration or trademark licensed under any trademark License; (d) any recoveries by a Credit Party against third parties with respect to any litigation or dispute concerning any Collateral, including claims arising out of the loss or nonconformity of, interference with the use of, defects in, or infringement of rights in, or damage to, Collateral; (e) all amounts collected on, or distributed on account of, other Collateral, including dividends, interest, distributions and Instruments with respect to Investment Property and pledged Equity Interests; and (f) any and all other amounts , rights to payment or other property acquired upon the sale, lease, license, exchange or other disposition of Collateral and all rights arising out of Collateral.
“Purchase Money Indebtedness” means (a) any Indebtedness incurred for the payment of all or any part of the purchase price of any fixed asset, (b) any Indebtedness incurred for the sole purpose of financing or refinancing all or any part of the purchase price of any fixed asset, and (c) any renewals, extensions or refinancings thereof (but not any increases in the principal amounts thereof outstanding at that time).
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“Purchase Money Lien” means any Lien upon any fixed assets which secures the Purchase Money Indebtedness related thereto but only if such Lien shall at all times be confined solely to the asset the purchase price of which was financed or refinanced through the incurrence of the Purchase Money Indebtedness secured by such Lien and only if such Lien secures only such Purchase Money Indebtedness.
“Qualified Counterparty” means with respect to any Specified Hedge Agreement or Cash Management Obligations, any counterparty thereto that was an Agent at the time such Specified Hedge Agreement or Cash Management Obligations were entered into, a Lender or an Affiliate of any of the foregoing, regardless of whether any such Person shall thereafter cease to be an Agent, a Lender or an Affiliate of any of the foregoing.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Quarterly Royalty Collections Report” means a report substantially in the form of Exhibit F hereto.
“QVC Agreements” means collectively, (a) the Second Amended and Restated Agreement and Consent to Assignment dated as of September 28, 2011 among QVC, Inc., IM Brands, Borrower and Xxxxx Xxxxxxx, as amended to the Closing Date and (b) the amended and restated agreement between Xxxx Xxxxxxxxx, Ltd. and QVC, Inc. dated as of May 1, 2013, as amended by amendments dated July 23, 2013, May 11, 2016, June 1, 2016, and August 13, 2020 and assumed by Gold Licensing pursuant to the terms of the Assignment and Assumption Agreement dated as of April 1, 2021, in each case, as further amended, supplemented, restated or otherwise modified from time to time.
“Real Property” has the meaning given to such term in Section 7.6.
“Release” means, as to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials in the indoor or outdoor environment by such Person, including the movement of Hazardous Materials through or in the air, soil, surface water, ground water or property.
“Register” has the meaning assigned to such term in Section 4.2(b).
“Related Person” means with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each advisor and other consultants of such Person.
“Request for Revolving Loan” means a request for a Revolving Loan substantially in the form of Exhibit H.
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“Required Lenders” means, at any time, (a) if there are two or fewer Lenders, all Lenders, and (b) if there shall be three or more Lenders, Lenders holding more than 66.67% of (a) (i) until the Closing Date, the Commitments and (ii) thereafter, the sum of (A) the aggregate unpaid principal amount of the Term Loans then outstanding and (B) the Revolving Loan Discretionary Commitments then in effect or, if the Revolving Loan Discretionary Commitments have been terminated, the total of the Revolving Loans; provided, that (1) the Revolving Loans and Revolving Loan Discretionary Commitment of any Defaulting Lender shall be disregarded in making any determination under this definition and (2) Lenders that are Affiliates of one another shall be considered as one Lender.
“Required Revolving Lenders” means, at any time, the holders of more than 66.67% of the sum of the Revolving Loan Discretionary Commitments then in effect or, if the Revolving Loan Discretionary Commitments have been terminated, the total amount of Revolving Loans; provided, that (1) the Revolving Loans and Revolving Loan Discretionary Commitment of any Defaulting Lender shall be disregarded in making any determination under this definition and (2) Lenders that are Affiliates of one another shall be considered as one Lender.
“Requirement of Law” means as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Requirement of Tax Law” means as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority relating to Taxes, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Reserves” means reserves, established by Administrative Agent from time to time in its good faith credit judgment, including to protect Administrative Agent’s interest in the Collateral, to protect Lender against possible non-payment of Accounts for any reason by Account Debtors, to protect against the diminution in value of any Collateral, to protect Lender against the possible non-payment of any Obligations, to protect Lender for any unpaid taxes, to protect Lender in respect of any state of facts that could constitute a Default or Event of Default.
“Restricted Payment” means: (a) the declaration or payment of any dividend or the incurrence of any liability to make any other payment or distribution of cash or other property or assets on or in respect of Credit Party’s Equity Interests; (b) any payment or distribution made in respect of any Subordinated Debt of any Credit Party in violation of any subordination or other agreement made in favor of Lenders; (c) any payment on account of the purchase, redemption, defeasance or other retirement of any Credit Party’s Equity Interests or Indebtedness or any other payment or distribution made in respect of any thereof, either directly or indirectly; or (d) any payment, loan, contribution, or other transfer of funds or other property to any Equity Interests Holder of such Person which is not expressly and specifically permitted in this Agreement; provided, that no payment to any Lender or any Agent for the benefit of any Secured Party shall constitute a Restricted Payment; provided that any regularly scheduled payments of the principal amount of, and regularly scheduled interest on the SBA PPP Loans at a per annum rate not to exceed 1.00%, to the extent such payments are not deferred or forgiven, shall not be Restricted Payments.
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“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.
“Responsible Officer” means, as to any Person, the chief executive officer, president, chief financial officer, chief accounting officer or treasurer of such Person, but in any event, with respect to financial matters, the chief financial officer, chief accounting officer, or treasurer or director of such Person.
“Revenue License” means each License pursuant to which a Credit Party is entitled to receive revenue from the licensee party thereto, as each such License may be amended, supplemented, restated or otherwise modified from time to time.
“Revolving Lender” means each Lender that has a Revolving Loan Commitment or that is the holder of Revolving Loans.
“Revolving Lender Priority Collateral” means, as respects each Credit Party all of the following property now owned or hereafter acquired by such Credit Party: (a) all Wholesale Accounts; (b) all Inventory of any kind wherever located; (c) all instruments, chattel paper and other contracts evidencing, or substituted for, any Wholesale Account; (d) all guarantees, letters of credit, security and other credit enhancements for the Wholesale Accounts; (e) all documents of title for any Inventory; (f) all claims and causes of action solely to the extent relating to any of the Wholesale Accounts or Inventory; (g) [reserved]; (h) all books and records relating to any of the foregoing; and (i) all substitutions, replacements, accessions, products or proceeds (including, without limitation, insurance proceeds) of any of the foregoing.
“Revolving Loan” means a loan made by a Revolving Lender pursuant to Section 2.1
“Revolving Loan Availability Period” means the period starting on Closing Date and ending on the Revolving Loan Maturity Date, subject to earlier termination after the occurrence of an Event of Default.
“Revolving Loan Discretionary Commitment” means, with respect to each Revolving Lender, the amount set forth opposite such Revolving Lender’s name in Schedule IV under the heading “Revolving Loan Discretionary Commitment” or in the Assignment and Assumption pursuant to which such Revolving Lender became a party hereto, in each case as the same may be changed from time to time pursuant to the terms hereof.
“Revolving Loan Maturity Date” means April 14, 2022, as such date may be extended in accordance with the terms and conditions of this Agreement.
“Revolving Loan Note” means each promissory note executed by Borrower substantially in the form of Exhibit A.
“Revolving Loan Percentage” means with respect to any Revolving Lender at any time, the ratio (expressed as a percentage) of the aggregate amount of such Revolving Lender’s Revolving Loans at such time to the aggregate amount of Revolving Loans made by all Revolving Lenders at such time.
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“Sanctions” has the meaning given to such term in Section 7.26(b).
“SBA Paycheck Protection Loan Program” means the Small Business Administration’s Paycheck Protection Program pursuant to the Coronavirus Aid, Relief and Economic Security Act, as the same may be amended, supplemented or modified from time to time.
“SBA PPP Loans” means unsecured Indebtedness incurred by Borrower under the SBA Paycheck Protection Loan Program.
“SDN List” has the meaning given to such term in Section 7.26.
“SEC” means the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).
“Secured Parties” means each Agent, each Lender and each other holder of an Obligation.
“Seller Financing” means in connection with an Exempt Acquisition, the issuance of a promissory note by an Exempt Subsidiary to the seller thereof, the payment of which is not guaranteed by any Credit Party.
“Settlement Date” has the meaning given to such term in Section 4.3(b).
“Software” means all “software” as such term is defined in the UCC, including all computer programs and all supporting information provided in connection with a transaction related to any program.
“Specified Event of Default” means an Event of Default pursuant to Section 12.1(f).
“Specified Hedge Agreement” means any Hedge Agreement entered into or assumed by any Credit Party and any Qualified Counterparty and designated by the Qualified Counterparty and Borrower in writing to the Administrative Agent as a “Specified Hedge Agreement”.
“SPV” means any special purpose funding vehicle identified as such in writing by any Lender to Agent.
“Subordinated Debt” means any note, document, instrument or agreement now or any time hereafter executed and/or delivered by any Credit Party with or in favor of any Subordinated Lender which evidences the principal, interest and other amounts owed by a Credit Party to such Subordinated Lender.
“Subordinated Lender” means any Person who enters into a Subordination Agreement with Agent with respect to amounts owed by any Credit Party to such Person.
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“Subordination Agreement” means all subordination agreements in form and substance acceptable to the Agents from time to time with respect to Subordinated Debt of any Credit Party.
“Subsidiary” means, with respect to any Person, (i) any corporation of which an aggregate of more than 50% of the outstanding Equity Interests having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, Equity Interests of any other class or classes of such corporation has or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of 50% or more of such Equity Interests whether by proxy, agreement, operation of law or otherwise, and (ii) any partnership or limited liability company in which such Person or one or more Subsidiaries of such Person has an equity interest (whether in the form of voting or participation in profits or capital contribution) of more than 50% or of which any such Person is a general partner or manager or may exercise the powers of a general partner or manager.
“Supporting Obligations” means all “supporting obligations” as such term is defined in the UCC, including Letter-of-Credit Rights or secondary obligations that supports the payment or performance of Accounts, Chattel Paper, Documents, General Intangibles, Instruments, or Investment Property.
“Swap Obligation” means with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Take-Back Financing” means in connection with an Exempt Acquisition, the issuance of a promissory note by an Exempt Subsidiary to the financing source of the seller thereof, the payment of which is not guaranteed by any Credit Party.
“Target” means any Person or business unit or asset group of any Person which is in the business of owning and licensing Intellectual Property acquired or proposed to be acquired in an Acquisition.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholdings), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term” means with respect to (a) Term Loan A, the Closing Date through the Term Loan Maturity Date, (b) the Term Loan B, the Closing Date through the Term Loan Maturity Date, (c) each Incremental Term Loan, the date such Incremental Term Loan is made through the applicable Incremental Term Loan Maturity Date and (d) the Revolving Loan, the Revolving Loan Availability Period, in each case, subject to acceleration upon the occurrence of an Event of Default hereunder or other termination hereunder.
“Term Loan A” has the meaning given to such term in Section 2.2(a).
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“Term Loan A Commitment” means as to any Term Loan A Lender, the obligation of such Term Loan A Lender to make a Term Loan A to Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Term Loan A Commitment” opposite such Term Loan A Lender’s name on Schedule IV. The original aggregate amount of the Term Loan A Commitments as of the Closing Date is $10,000,000. Immediately following the occurrence of the Closing Date the aggregate amount of the Term Loan A Commitments shall be $0.
“Term Loan A Lenders” means each Lender that has a Term Loan A Commitment or is the holder of a Term Loan A.
“Term Loan A Note” means each promissory note of Borrower substantially in the form of Exhibit B-1.
“Term Loan A Percentage” means with respect to any Term Loan A Lender, the percentage which the aggregate principal amount of such Term Loan A Lender’s Term Loan A then outstanding constitutes of the aggregate principal amount of the Term Loan A of all Term Loan A Lenders then outstanding.
“Term Loan B” has the meaning given to such term in Section 2.2(b).
“Term Loan B Commitment” means as to any Term Loan B Lender, the obligation of such Term Loan B Lender to make a Term Loan B to Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Term Loan B Commitment” opposite such Term Loan B Lender’s name on Schedule IV. The original aggregate amount of the Term Loan B Commitments as of the Closing Date is $15,000,000. Immediately following the occurrence of the Closing Date the aggregate amount of the Term Loan B Commitments shall be $0.
“Term Loan B Lenders” means each Lender that has a Term Loan B Commitment or is the holder of a Term Loan B.
“Term Loan B Note” means each promissory note of Borrower substantially in the form of Exhibit B-2.
“Term Loan B Percentage” means with respect to any Term Loan B Lender, the percentage which the aggregate principal amount of such Term Loan B Lender’s Term Loan B then outstanding constitutes of the aggregate principal amount of the Term Loan B of all Term Loan B Lenders then outstanding.
“Term Loan Commitments” means the collective reference to the Term Loan A Commitments, the Term Loan B Commitment and the Incremental Term Loan Commitments.
“Term Loan Installment Payment Date” means the last day of each calendar quarter.
“Term Loan Lenders” means the collective reference to the Tern Loan A Lenders, Term Loan B Lenders and the Incremental Term Loan Lenders.
“Term Loan Lender Priority Collateral” means all Collateral other than the Revolving Lender Priority Collateral.
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“Term Loan Maturity Date” means April 14, 2025, as such date may be extended in accordance with the terms and conditions of this Agreement.
“Term Loan Note” means each of Term Loan A Note, Term Loan B Note and each Incremental Term Loan Note.
“Term Loans” means the collective reference to Term Loan A, Term Loan B and the Incremental Term Loans.
“Termination Date” means the date on which all Obligations under this Agreement are paid in full, in cash, and all Commitments have been terminated.
“Total Revolving Loan Discretionary Commitments” means at any time, the aggregate amount of the Revolving Loan Discretionary Commitments of all Revolving Lenders then in effect which shall initially be in the Maximum Revolving Loan Amount, as such amount may be adjusted from time to time pursuant to this Agreement.
“Trigger Event” means (i) the termination, amendment or modification of a Revenue License (including any QVC Agreement) if, on a pro forma basis, it could reasonably be expected to result in Borrower and Included Subsidiaries on a consolidated basis failing to receive during fiscal periods set forth below set forth below revenue from Revenue Licenses in an amount at least equal to the amount set opposite such fiscal period below or (ii) Borrower and Included Subsidiaries on a consolidated basis shall fail to receive during each fiscal period set forth below revenue from Revenue Licenses in an amount at least equal to the amount set opposite such fiscal period below:
Fiscal Period | Minimum Revenue |
April 1, 2021 thru June 30, 2021 | $5,820,000 |
April 1, 2021 thru September 30, 2021 | $11,719,000 |
April 1, 2021 thru December 31, 2021 | $16,445,000 |
For the trailing twelve month period ending March 31, 2022 | $23,500,000 |
For the trailing twelve month period ending June 30, 2022 | $24, 491,000 |
For the trailing twelve month periods ending September 30, 2022 and each Fiscal Quarter end thereafter | $25,000,000 |
“UCC” means the Uniform Commercial Code as the same may, from time be in effect in the State of New York; provided, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Agent’s
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Lien on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of this Agreement relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
“UK Bail-In Legislation” means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“United States” and “US” means the United States of America.
“US Dollars” and “$” means lawful currency of the United States.
“US Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the IRC.
“US Tax Compliance Certificate” has the meaning given to such term in Section 3.4(f).
“Xcel-CT” means Xcel-CT Mfg, LLC, a Delaware limited liability company.
“Xcel Design” means Xcel Design Group, LLC, a Delaware limited liability company.
“Wholesale Accounts” means those Accounts arising from the sale of Inventory in connection with the Wholesale Business. For the avoidance of doubt and without limiting any other provision hereof, the term “Wholesale Accounts” does not include any licensing fees, royalties, or other amounts received by any Credit Party in respect of such Credit Party’s Intellectual Property.
“Wholesale Business” means the line of business pursuant to which a Credit Party designs, manufactures and sells Inventory to retailers.
“Wholly Owned Subsidiary” means as to any Person, any other Person all of the Equity Interests of which is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
“Withholding Agent” means any Credit Party or any Agent, as applicable.
“Write-Down and Conversion Powers”:
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“Event of Default” shall be deemed to be “continuing” until it is waived in writing in accordance with the terms of this Agreement; unless the context requires otherwise, (a) any reference to any Person shall be construed to include such Person’s legal successors and permitted assigns, (b) any reference to any law or regulation shall refer to such law or regulation as amended, modified or supplemented from time to time, and any successor law or regulation, (c) the words “asset” and “property” shall be construed to have the same meaning and effect, and (d) references to agreements (including this Agreement) or other Contractual Obligations shall be deemed to refer to such agreements or Contractual Obligations as amended, restated, amended and restated, supplemented or otherwise modified from time to time (in each case, to the extent not otherwise prohibited hereunder). Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter. The term “or” is not exclusive. The term “including” (or any form thereof) shall not be limiting or exclusive. All references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations. All references in this Agreement or in the Schedules to this Agreement to sections, schedules, disclosure schedules, exhibits, and attachments shall refer to the corresponding sections, schedules, disclosure schedules, exhibits, and attachments of or to this Agreement. All references to any instruments or agreements, including references to any of this Agreement or any of the other Loan Documents shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof. The expressions “payment in full”, “paid in full” and any other similar terms or phrases when used herein with respect to the Obligations shall mean the payment in full, in immediately available funds, of all of the Obligations (excluding contingent reimbursement and indemnification obligations that are not then due and payable) and termination of all Commitments under this Agreement. The expression “refinancing” and any other similar terms or phrases when used herein shall include any exchange, refunding, renewal, replacement, defeasance, discharge or extension.
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“Benchmark” means initially, USD LIBOR; provided, that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to USD LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (a) of this Section 1.6.
“Benchmark Replacement” means the first alternative set forth in the order below that can be determined by Administrative Agent for the applicable Benchmark Replacement Date:
provided, that, in the case of clauses (1) and (2), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means with respect to any replacement of the then- current Benchmark with an Unadjusted Benchmark Replacement for any setting of such Unadjusted Benchmark Replacement:
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provided, that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” means with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible
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or if Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
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For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section 1.6 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section 1.6.
“Daily Simple SOFR” means for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Early Opt-in Election” means if the then-current Benchmark is USD LIBOR, the occurrence of:
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“Floor” means one percent (1.00%) per annum..
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Reference Time” means with respect to any setting of the then-current Benchmark means (1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two (2) London banking days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by Administrative Agent in its reasonable discretion.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“SOFR” means with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Term SOFR” means, for the applicable corresponding tenor, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
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“USD LIBOR” means the London interbank offered rate for U.S. dollars.
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Revolving Loans, (b) repay all outstanding Revolving Loans and accrued and unpaid interest thereon or (c) prepay all or a portion of the Term Loans or Incremental Term Loans. Each notice of termination or prepayment shall be irrevocable and shall specify the prepayment date and the principal amount of each Loan or portion thereof to be prepaid; provided, that any notice of termination or prepayment may be conditioned upon the effectiveness of other credit facilities or any other financing, Disposition, sale or other transaction. Prepayments shall be accompanied by accrued interest. Each repayment of a Loan (x) in the case of Revolving Loans, shall be applied to the Revolving Loans such that each Revolving Lender holding Revolving Loans included in such repaid Loans receives its ratable share of such repayment based upon its respective Revolving Loan Percentage of the Revolving Loans and (y) in the case of Term Loans, first, to repay outstanding Term Loan A to the full extent thereof, second, to prepay Term Loan B and third, to the other Term Loans in accordance in the terms of the Incremental Facility Amendments.
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affects the amount of capital required or expected to be maintained by such Lender or any entity controlling such Lender and (taking into consideration such Lender’s or such entities’ policies with respect to capital adequacy and such Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its loans, credits or obligations under this Agreement, then, within thirty (30) days of demand of such Lender (with a copy to Administrative Agent), Borrower shall pay to such Lender, as applicable, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender (or the entity controlling such Lender) for such increase; provided, that Borrower shall not be required to compensate such Lender pursuant to this Section 3.5(b) for any amounts incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies Borrower, in writing of the amounts and of such Lender’s intention to claim compensation thereof; provided, further, that if the event giving rise to such increase is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
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To induce Agents and Lenders to enter into this Agreement and to make the Loans, each Credit Party represents and warrants (each of which representations and warranties shall survive the execution and delivery of this Agreement), and promises to and agrees with Agents and Lenders until the Termination Date as follows:
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delivery shall be and will continue to be a legal, valid and binding obligation of each Credit Party, enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency and other similar laws affecting creditors’ rights generally.
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Interests Holders (and in the amounts) set forth on Disclosure Schedule 7.7. All outstanding Indebtedness of each Credit Party as of the Closing Date is described in Disclosure Schedule 9.10. The Beauty Solutions, LLC, Tribe Cosmetics, LLC and Xcel Acquisition Co., LLC Holdings does not engage in any business activities and does not own any property or assets other than activities and contractual rights incidental to maintenance of its legal existence.
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Amount in the aggregate, (b) no notice has been received by any Credit Party identifying it as a “potentially responsible party” or requesting information under CERCLA or analogous state statutes, and to the knowledge of any Credit Party, there are no facts, circumstances or conditions that may result in such Credit Party being identified as a “potentially responsible party” under CERCLA or analogous state statutes; and (c) each Credit Party has provided to Agent copies of all existing environmental reports, reviews and audits and all written information pertaining to actual or potential Environmental Liabilities, in each case relating to any Credit Party. Each Credit Party: (i) shall comply in all material respects with all applicable Environmental Laws and environmental permits; (ii) shall notify Agents in writing within seven (7) days if and when it becomes aware of any Release, on, at, in, under, above, to, from or about any of its Real Property; and (iii) shall promptly forward to Agents a copy of any order, notice, permit, application, or any communication or report received by it or any Credit Party in connection with any such Release.
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Borrower, (ii) the issuance of Equity Interests of Borrower, or (iii) by Seller Financing, Borrower hereby grants to Lenders a right of first offer to provide such financing. Borrower shall notify Agents of its request for such financing and submit in writing to Agents, the sources and uses of funds for the proposed transaction, the requested amount of any such proposed financing, a copy of the term sheet Borrower has received for financing in connection therewith that Borrower is prepared to accept (the “Term Sheet”) and, to the extent not in violation of any applicable confidentiality agreement, the supporting financial information and documentation relating to the proposed Acquisition. Lenders shall have the right, but not the obligation, to provide such financing on the terms and conditions set forth in the Term Sheet. Within ten (10) Business Days of receipt by Agents of all such information required by Agents and Lenders in connection with such request for financing, Agents shall inform Borrower whether or not Lenders are willing to provide such financing on the terms presented to Agents in the Term Sheet. If Lenders are willing to provide such financing and upon acceptance by Borrower of a term sheet from Agents with respect thereto, Lenders shall seek credit approval for such financing and inform Borrower within ten (10) Business Days of receipt of such accepted term sheet as to whether or not Lenders have received approval with respect thereto. If Lenders have declined to provide such financing or Lenders have not received credit approval with respect thereto, Borrower may obtain Outside Financing on the terms set forth in the Term Sheet. In the event that the terms of the Outside Financing deviate from the Term Sheet, Borrower shall so inform Agents and permit the Lenders the opportunity to provide such financing on the terms as so amended.
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7.25 shall prohibit any Credit Party from forming or acquiring a Subsidiary that will be an Excluded Subsidiary.
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financial condition, operations, prospects or management of such Credit Party or the Collateral as any Agent may request, all in reasonable detail. Borrower shall promptly (and in any event within two (2) Business Days or such longer period as the Agents may agree) provide Agents with (a) notice of (i) Borrower’ receipt of proceeds of any SBA PPP Loan and (ii) the forgiveness of any portion of any SBA PPP Loan, (b) the final executed agreements governing the terms of any SBA PPP Loan and (c) any other documents or information related to the SBA PPP Loans reasonably requested by any Agent. Promptly after the request by any Agent or any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (including, without limitation, if any Credit Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to such Credit Party).
Each Credit Party covenants and agrees that from the Closing Date until the Termination Date, such Credit Party shall not and shall not permit any Exempt Subsidiary, directly or indirectly, by operation of law or otherwise:
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hereafter acquired, or, in the case of any Included Subsidiary, issue or sell any shares of such Subsidiary’s Equity Interests to any Person, except:
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of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof; provided, that such license will terminate on the Termination Date and all amounts received by Administrative Agent with respect thereto shall be applied to the Obligations.
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then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Co-Collateral Agent shall, declare any or all of the Obligations to be due and payable, and the same shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable without any necessary action or notice by Administrative Agent.
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and, for each of the items set forth in clauses (i) through (iv) above, each Lender and each Credit Party hereby waives and agrees not to assert any right, claim or cause of action it might have against Agent based thereon.
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Agent or any of its Related Persons, conduct its own independent investigation of the financial condition and affairs of each Credit Party and make and continue to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate. Except for documents expressly required by any Loan Document to be transmitted by any Agent to Lenders, no Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Credit Party or any Affiliate of any Credit Party that may come in to the possession of any Agent or any of its Related Persons.
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Each Lender hereby directs Administrative Agent, and Administrative Agent hereby agrees, upon receipt of notice from Borrower, to execute and deliver or file such documents and to perform other actions reasonably necessary to release the guaranties and Liens when and as directed in this Section 13.10.
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it being agreed that all Lenders shall be deemed to be directly affected by an amendment or waiver of the type described in the preceding clauses (iv), (v), (vi), (vii), (viii) and (ix).
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it being agreed by each Guarantor that its obligations shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
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subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations (other than contingent indemnification obligations for which no claims have been made) are paid in full in cash. Each Credit Party acknowledges and agrees that this waiver is intended to benefit Agents and Lenders and shall not limit or otherwise affect such Credit Party’s liability hereunder or the enforceability of Section 14.4.
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IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; (b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME; (c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH IN SCHEDULE III TO THIS AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH AGENT SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 14.17; AND (d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION.
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insolvency, bankruptcy, dissolution, liquidation or reorganization of any Credit Party, or otherwise, all as though such payments had not been made.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above written.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: EVP, Secretary
IM BRANDS, LLC
JR LICENSING, LLC
H LICENSING, LLC
C WONDER LICENSING, LLC
XCEL DESIGN GROUP, LLC
XXXXXX XXXXX FINE JEWELRY, LLC
H HERITAGE LICENSING, LLC
XCEL-CT MFG, LLC
GOLD LICENSING, LLC
By: | XCEL BRANDS, INC., |
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: EVP, Secretary
[additional signature pages follow]
| | SIGNATURE PAGE TO |
BANK HAPOALIM B.M., as Administrative Agent
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Executive Vice President
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
[additional signature pages follow]
| | SIGNATURE PAGE TO |
FEAC AGENT, LLC, as Co-Collateral Agent.
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Managing Director
[additional signature pages follow]
| | SIGNATURE PAGE TO |
BANK HAPOALIM B.M., as a Lender
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Executive Vice President
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
[additional signature pages follow]
| | SIGNATURE PAGE TO |
FIRST EAGLE ALTERNATIVE
CAPITAL BDC, INC., as a Lender
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Managing Director
FIRST EAGLE DIRECT LENDING FUND IV, LLC, as a Lender
By: First Eagle Alternative Credit, LLC
Its: Manager
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Managing Director
FIRST EAGLE DIRECT LENDING IV CO-INVEST, LLC, as a Lender
By: First Eagle Alternative Credit, LLC
Its: Manager
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Managing Director
FIRST EAGLE DIRECT LENDING LEVERED FUND IV SPV, LLC, as a Lender
By: First Eagle Direct Lending Levered Fund IV, LLC
Its: Manager
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Managing Director
| | SIGNATURE PAGE TO |
SCHEDULE I
CONDITIONS PRECEDENT
The following items must be received by Agents each in form and substance satisfactory to Agents on or prior to the date of the initial Loan:
this Agreement duly executed by each Credit Party, each Lender and each Agent;
the Revolving Loan Notes, the Term Loan A Note A and the Term Loan B Notes duly executed by Borrower;
the Fee Letter duly executed by Borrower;
the Powers of Attorney duly executed by each Credit Party;
duly executed Intellectual Property Security Agreement from each Credit Party;
the Life Insurance Policies (other than with respect to Xxxx Xxxxxxxxx);
the Control Agreements with respect to the Deposit Accounts of Credit Parties other than Excluded Accounts
duly executed Pledge Agreement from Borrower together with copies of the certificates representing the Equity Interests of each Included Subsidiary owned by Borrower, together with copies of an undated stock power for each such certificate executed in blank by a duly authorized officer of Borrower;
copies of financing statements (Form UCC-l) to be filed under the UCC and all other recordings and filings (including UCC-3 termination statements and other Lien release documentation) in all jurisdictions as may be necessary or, in the opinion of Agents, desirable to perfect Administrative Agent’s Lien on the Collateral and ensure such Collateral is free and clear of other Liens;
certified copies of UCC, tax lien and judgment searches, or other evidence satisfactory to Agents, listing all effective financing statements which name each Credit Party (under present name, any previous name or any trade or doing business name) as debtor and covering all jurisdictions requested by Agents, together with copies of such other financing statements;
a copy of the charter or other similar Organizational Document of each Credit Party and each amendment thereto, certified (as of a date reasonably near the date of the initial extension of credit) as being a true and correct copy thereof by either (a) the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Credit Party is organized or incorporated, or (b) in those jurisdictions where a Governmental Authority does not customarily certify as to any Organizational Documents, a director or other officer of the applicable Credit Party.
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to the extent customarily provided in the relevant jurisdiction, a copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Credit Party is organized, dated reasonably near the date of the initial extension of credit, certifying that such Person is duly organized and in good standing or in full force and effect under the laws of such jurisdiction.
a certificate of the Secretary, Assistant Secretary or other appropriate Responsible Officer of each Credit Party (or, if such Credit Party has not appointed any officers, the Secretary, Assistant Secretary or other appropriate Responsible Officer of the (direct or indirect) holder of all of the Capital Stock of such Credit Party) dated the Closing Date and certifying (a) that attached thereto is a true and complete copy of the by-laws, or operating or partnership agreement or other similar Organizational Document of such Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (b) below, (b) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors, managers or members, as applicable authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (c) that the certificate or articles of incorporation, partnership agreement or other Organizational Documents of such Credit Party have not been amended since the date set forth therein, (d) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Credit Party.
the LG Purchase Agreement duly executed by all parties thereto together with all schedules, disclosure schedules and exhibits executed in connection therewith;
all conditions precedent to the consummation of the LG Acquisition will have been satisfied or duly waived and the LG Acquisition will have been consummated in accordance with the LG Purchase Agreement;
any and all subordination and/or intercreditor agreements as Agent shall have deemed necessary or appropriate with respect to any Indebtedness of any Credit Party;
all documentation and other information about the Credit Parties with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (including a completed OFAC questionnaire and, if any Credit Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulations, a Beneficial Ownership Certification with respect to such Credit Party);
a fully executed pay-off letter confirming that all obligations owing by any Credit Party to Prior Lender will be repaid in full from the proceeds of the initial Loans and all Liens upon any of the property of the Credit Parties or any of their Subsidiaries in favor of Prior Lender shall be terminated by Prior Lender immediately upon such payment;
evidence and certificates of insurance as required pursuant to Section 7.16;
evidence reasonably satisfactory to Agents that immediately subsequent to the Closing Date, the Liquid Assets of Borrower and the Included Subsidiaries on a consolidated basis shall be at least $4,000,000;
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executed opinion of counsel to the Credit Parties in form and scope customary for the transactions contemplated under this Agreement and the other Loan Documents;
all documentation and other information about each Agent and each Lender with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act (including a completed OFAC questionnaire and, if any Agent or any Lender qualifies as a “legal entity customer” under the Beneficial Ownership Regulations, a Beneficial Ownership Certification with respect to such Agent or such Lender) shall have been received and approved by BHI and funding of the Term Loans shall occur no later than close of business on April 21, 2021 unless such date is extended by Agents ; and
such other certificates, documents and agreements respecting any Credit Party as Agents may reasonably request.
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SCHEDULE II
FINANCIAL COVENANTS
Fiscal Period | Minimum EBITDA |
April 1, 2021 to June 30, 2021 | $1,750,000 |
April 1, 2021 to September 30, 2021 | $4,875,000 |
April 1, 2021 to December 31, 2021 | $6,500,000 |
For the trailing twelve month periods ending March 31, 2022, June 30, 2022 and September 30, 2022 | $6,500,000 |
For the trailing twelve month periods ending December 31, 2022, March 31, 2023, June 30, 2023 and September 30, 2023 | $7,000,000 |
For the trailing twelve month periods ending December 31, 2023, March 31, 2024, June 30, 2024, September 30, 2024, December 31, 2024 and March 31, 2025 | $7,500,000 |
Minimum Liquid Assets. Liquid Assets of Borrower and the Included Subsidiaries on a consolidated basis shall be at least $4,000,000 at all times.
Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio of Borrower and the Included Subsidiaries on a consolidated basis for the twelve Fiscal Month period ending at the end of each Fiscal Quarter commencing with the Fiscal Quarter ending December 31, 2021 shall not be less than 1.25 to 1.00.
Maximum Leverage Ratio. The Leverage Ratio of Borrower and the Included Subsidiaries on a consolidated basis for the twelve Fiscal Month period ending at the end of each Fiscal Quarter shall not exceed (a) 4.50 to 1.00 for the Fiscal Quarter ending December 31, 2021 and (b) 4.00 to 1.00 for each Fiscal Quarter ending on and after March 31, 2022.
Loan To Value Ratio. At no time shall the Loan to Value Ratio exceed 50%.
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SCHEDULE III
ADDRESSES FOR NOTICES
Administrative Agent and BHI’s Address:
Name: | Bank Hapoalim B.M. |
Address: | 0000 Xxxxxx xx xxx Xxxxxxxx |
Attention: | Xxxxx Xxxxx, First Vice President |
Telephone: | (000) 000-0000 |
Facsimile: | (000) 000-0000 |
e-mail: | xxxxxx@xxxxxx.xxx |
and
Attention: | Xxxxxxxx Xxxxxxx, Senior Vice President |
Telephone: | (000) 000 0000 |
Facsimile: | (000) 000 0000 |
e-mail: | xxxxxxxx@xxxxxx.xxx |
Co-Collateral Agent and FEAC’s Address:
Name: | FEAC Agent, LLC |
Address: | 000 Xxxxxxxx Xxxxxx, Xxxxx 0000 |
Attention: | Xxxx Xxxxxxx |
Telephone: | (000) 000-0000 |
e-mail: | xxxx.xxxxxxx@xxxx.xx, |
and
Attention: | Xxxxxxxx Xxxxx |
Telephone: | (000) 000-0000 |
e-mail: | xxxxxxxx.xxxxx@xxxx.xxx |
Each Lender’s Address:
As set forth in such Lender’s Administrative Questionnaire
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Each Credit Party’s and Borrower’s Address:
Name: |
Address: | 0000 Xxxxxxxx, 00xx Xxxxx |
Attention: | Xxxxx Xxxxx |
Telephone: | (000) 000-0000 |
Facsimile: | (000) 000-0000 |
e-mail: | xxxxxx@xxxxxxxxxx.xxx |
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SCHEDULE IV
COMMITMENTS
Revolving Loan Discretionary Commitments:
Revolving Loan Lender | Revolving Loan Discretionary Commitment |
Bank Hapoalim B.M | $4,000,000 |
Term Loan A Commitments:
Term Loan A Lender | Term Loan A Commitment |
Bank Hapoalim B.M | $10,000,000 |
Term Loan B Commitments:
Term Loan B Lender | Term Loan B Commitment |
First Eagle Alternative Capital BDC, Inc. | $5,625,000.00 |
First Eagle Direct Lending Fund IV, LLC | $6,445,802.26 |
First Eagle Direct Lending IV Co-Invest, LLC | $527,172.98 |
First Eagle Direct Lending Levered Fund IV SPV, LLC | $2,402,024.76 |
| Total: $15,000,000 |
Incremental Term Loan Commitments:
Incremental Term Loan Lender | Incremental Term Loan Commitment |
| $0 |
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EXHIBIT A
REVOLVING LOAN NOTE
This Revolving Loan Note (this “Note”) is executed and delivered under and pursuant to the terms of that certain Loan and Security Agreement dated as of April 12, 2021 (as amended, modified, supplemented or restated from time to time, the “Loan Agreement”) by and among [________] (“Lender”), XCEL BRANDS, INC. (“Borrower”), and any other Credit Party executing or becoming a party to the Loan Agreement, the financial institutions party thereto from time to time as Lenders, BANK HAPOALIM B.M., as administrative agent and collateral agent for Lenders and FEAC Agent, LLC, as co-collateral agent. Capitalized terms not otherwise defined herein shall have the meanings given thereto in the Loan Agreement.
FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender at the offices of Administrative Agent at offices located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as the holder hereof may from time to time designate to Borrower in writing:
(i)the principal sum of [__________ ($________)], or if different from such amount, Lender’s Revolving Loan Percentage of the unpaid principal balance of Revolving Loans as may be due and owing from time to time under the Loan Agreement, payable in accordance with the provisions of the Loan Agreement, subject to acceleration upon the occurrence of an Event of Default under the Loan Agreement, or earlier termination of the Loan Agreement pursuant to the terms thereof; and
(ii)interest on the principal amount of this Note from time to time outstanding, payable at the applicable interest rate in accordance with the provisions of the Loan Agreement. Upon and after the occurrence of an Event of Default, and during the continuation thereof, interest shall be payable at the applicable Default Rate to the extent provided by the Loan Agreement. In no event, however, shall interest hereunder exceed the maximum interest rate permitted by law.
This Note is the Revolving Loan Note referred to in the Loan Agreement and is secured, inter alia, by the Liens granted pursuant to the Loan Agreement and the other Loan Documents, is entitled to the benefits of the Loan Agreement and the other Loan Documents, and is subject to all of the agreements, terms and conditions therein contained.
This Note may be voluntarily prepaid, in whole or in part, on the terms and conditions set forth in the Loan Agreement.
If an Event of Default under Section 12.1(f) of the Loan Agreement shall occur, then this Note shall immediately become due and payable, without notice, together with attorneys’ fees if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof. If any other Event of Default shall occur under the Loan Agreement or any of the other Loan Documents which is not cured within any applicable grace period, then this Note may, as provided in the Loan Agreement, be declared to be immediately due and payable, without notice, together
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with attorneys’ fees, if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
To the fullest extent permitted by applicable law, Borrower waives: (a) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all of the Obligations, the Loan Agreement, this Note or any other Loan Documents; (b) all rights to notice and a hearing prior to Administrative Agent’s taking possession or control of, or to Administrative Agent’s replevy, attachment or levy upon, the Collateral or any bond or security that might be required by any court prior to allowing Agent to exercise any of its remedies; and (c) the benefit of all valuation, appraisal and exemption laws.
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Borrower acknowledges that this Note is executed as part of a commercial transaction and that the proceeds of this Note will not be used for any personal or consumer purpose.
By:
Name:
Title:
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EXHIBIT B-1
FORM OF TERM LOAN A NOTE
This Term Loan A Note (this “Note”) is executed and delivered under and pursuant to the terms of that certain Loan and Security Agreement dated as of April 12, 2021 (as amended, modified, supplemented or restated from time to time, the “Loan Agreement”) by and among [_________] (“Lender”), XCEL BRANDS, INC. (“Borrower”), and any other Credit Party executing or becoming a party to the Loan Agreement, the financial institutions party thereto as Lenders, BANK HAPOALIM B.M., as administrative agent and collateral agent for Lenders and FEAC Agent, LLC, as co-collateral agent for Lenders. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender at the offices of Administrative Agent located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as the holder hereof may from time to time designate to Borrower in writing:
(i)the principal sum of [________] ($[________]), payable, subject to acceleration upon the occurrence of an Event of Default under the Loan Agreement, or earlier termination of the Loan Agreement pursuant to the terms thereof, on the dates and in the manner set forth in the Loan Agreement, with the entire unpaid balance due and payable on the Term Loan Maturity Date; and
(ii)interest on the principal amount of this Note from time to time outstanding, payable at the applicable interest rate and set forth in the Loan Agreement on the dates and in the manner set forth in the Loan Agreement. Upon and after the occurrence of an Event of Default, and during the continuation thereof, interest shall be payable at the applicable Default Rate to the extent provided by the Loan Agreement. In no event, however, shall interest hereunder exceed the maximum interest rate permitted by law.
This Note is the Term Loan A Note referred to in the Loan Agreement and is secured, inter alia, by the liens granted pursuant to the Loan Agreement and the other Loan Documents, is entitled to the benefits of the Loan Agreement and the other Loan Documents, and is subject to all of the agreements, terms and conditions therein contained.
Payments received by Lender shall be applied against principal and interest as provided for in the Loan Agreement. This Note may be voluntarily prepaid, in whole or in part, on the terms and conditions set forth in the Loan Agreement.
If an Event of Default under Section 12.1(f) of the Loan Agreement shall occur, then this Note shall immediately become due and payable, without notice, together with attorneys’ fees if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof. If any other Event of Default shall occur under the Loan Agreement or any of the other Loan Documents which is not cured within any applicable grace period, then this Note may, as provided in the Loan Agreement, be declared to be immediately due and payable, without notice, together
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with attorneys’ fees, if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
To the fullest extent permitted by applicable law, Borrower waives: (a) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all of the Obligations, the Loan Agreement, this Note or any other Loan Documents; (b) all rights to notice and a hearing prior to Agent’s taking possession or control of, or to Agent’s replevy, attachment or levy upon, the Collateral or any bond or security that might be required by any court prior to allowing Agent to exercise any of its remedies; and (c) the benefit of all valuation, appraisal and exemption laws.
Borrower acknowledges that this Note is executed as part of a commercial transaction and that the proceeds of this Note will not be used for any personal or consumer purpose.
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Borrower agrees to pay to Agent all fees and expenses described in the Loan Agreement and the other Loan Documents.
By:
Name:
Title:
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EXHIBIT B-2
FORM OF TERM LOAN B NOTE
This Term Loan B Note (this “Note”) is executed and delivered under and pursuant to the terms of that certain Loan and Security Agreement dated as of April 12, 2021 (as amended, modified, supplemented or restated from time to time, the “Loan Agreement”) by and among [__________] (“Lender”), XCEL BRANDS, INC. (“Borrower”), and any other Credit Party executing or becoming a party to the Loan Agreement, the financial institutions party thereto as Lenders, BANK HAPOALIM B.M., as administrative agent and collateral agent for Lenders and FEAC Agent, LLC, as co-collateral agent. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement.
FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender at the offices of Administrative Agent located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as the holder hereof may from time to time designate to Borrower in writing:
(i)the principal sum of [________] ($[________]), payable, subject to acceleration upon the occurrence of an Event of Default under the Loan Agreement, or earlier termination of the Loan Agreement pursuant to the terms thereof, on the dates and in the manner set forth in the Loan Agreement, with the entire unpaid balance due and payable on the Term Loan Maturity Date; and
(ii)interest on the principal amount of this Note from time to time outstanding, payable at the applicable interest rate and set forth in the Loan Agreement on the dates and in the manner set forth in the Loan Agreement. Upon and after the occurrence of an Event of Default, and during the continuation thereof, interest shall be payable at the applicable Default Rate to the extent provided by the Loan Agreement. In no event, however, shall interest hereunder exceed the maximum interest rate permitted by law.
This Note is the Term Loan B Note referred to in the Loan Agreement and is secured, inter alia, by the liens granted pursuant to the Loan Agreement and the other Loan Documents, is entitled to the benefits of the Loan Agreement and the other Loan Documents, and is subject to all of the agreements, terms and conditions therein contained.
Payments received by Lender shall be applied against principal and interest as provided for in the Loan Agreement. This Note may be voluntarily prepaid, in whole or in part, on the terms and conditions set forth in the Loan Agreement.
If an Event of Default under Section 12.1(f) of the Loan Agreement shall occur, then this Note shall immediately become due and payable, without notice, together with attorneys’ fees if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof. If any other Event of Default shall occur under the Loan Agreement or any of the other Loan Documents which is not cured within any applicable grace period, then this Note may, as provided in the Loan Agreement, be declared to be immediately due and payable, without notice, together
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with attorneys’ fees, if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
To the fullest extent permitted by applicable law, Borrower waives: (a) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all of the Obligations, the Loan Agreement, this Note or any other Loan Documents; (b) all rights to notice and a hearing prior to Administrative Agent’s taking possession or control of, or to Administrative Agent’s replevy, attachment or levy upon, the Collateral or any bond or security that might be required by any court prior to allowing Agent to exercise any of its remedies; and (c) the benefit of all valuation, appraisal and exemption laws.
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Borrower acknowledges that this Note is executed as part of a commercial transaction and that the proceeds of this Note will not be used for any personal or consumer purpose.
XCEL BRANDS, INC.
By:
Name:
Title:
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EXHIBIT C
FORM OF BORROWING BASE CERTIFICATE
Date: [______]
This Borrowing Base Certificate (this “Certificate”) is given by Xcel Brands, Inc., a Delaware corporation (the “Borrower”), pursuant to that certain Loan and Security Agreement, dated as of April 12, 2021, among Borrower, the other Credit Parties party thereto from time to time, Lenders party thereto from time to time, Bank Hapoalim B.M., as administrative agent and collateral agent for such Lenders and FEAC Agent, LLC, as co-collateral agent for such Lenders (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Loan Agreement.
The undersigned is a Responsible Officer of Borrower and is duly authorized to execute and deliver this Certificate on behalf of Credit Parties. By executing this Certificate, such officer of Borrower hereby certifies to the Agents and Lenders on behalf of Credit Parties that:
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IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed as of the date first above written.
XCEL BRANDS, INC.,
as Borrower
By:
Name:
Title:
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Schedule 1
Borrowing Base Calculations
[See attached.]
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EXHIBIT D
FORM OF CERTIFICATE OF COMPLIANCE
[Date]
This Compliance Certificate (this “Certificate”) is given by Xcel Brands, Inc., a Delaware corporation (the “Borrower”), pursuant to that certain Loan and Security Agreement, dated as of April 12, 2021, among Borrower, the other Credit Parties party thereto from time to time, Lenders party thereto from time to time, Bank Hapoalim B.M., as administrative agent and collateral agent for such Lenders and FEAC Agent, LLC, as co-collateral agent for such Lenders (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Loan Agreement.
The undersigned is a Responsible Officer of Borrower and is duly authorized to execute and deliver this Certificate on behalf of Credit Parties. By executing this Certificate, such officer of Borrower hereby certifies to the Agents and Lenders on behalf of Credit Parties that:
1.The Financial Statements attached hereto for the Fiscal [Quarter][Year] ending ____________________ are true and complete in all material respects and fairly present in all material respects the financial condition of Borrower and the Included Subsidiaries as at the end of such Fiscal [Quarter][Year].
2.The calculations set forth in Annex 1 are computations of the financial covenants set forth on Schedule II of the Loan Agreement calculated from the Financial Statements in accordance with the terms of the Loan Agreement.
3. Attached as Annex 2 is the calculation of revenue from the Revenue Licenses and no Trigger Event has occurred
4.Based upon a review of the activities of Borrower and the Included Subsidiaries and the Financial Statements during the period covered thereby, as of the date hereof, [no Default or Event of Default has occurred under the Credit Agreement][a Default or Event of Default has occurred, as described on Annex 3 hereto, and the action proposed to be taken with respect thereto is described on Annex 3 hereto].
5.Annex 4 sets forth a list of each new Material Contract entered into by any Credit Party since the date of the last Compliance Certificate delivered pursuant to the Loan Agreement. Except as set forth on Annex 4, there has been no termination of, any amendment to or other modification of or any default under, any QVC Agreement.
6.Except as set forth on Annex 4, there has been no amendment to or other modification of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is not cured in any applicable grace period.
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7.Except as set forth on Annex 4, there has been no termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminated.
0.Xx Credit Party has formed or acquired any Subsidiary except for: [List new Subsidiaries, including Excluded Subsidiaries, Exempt Subsidiaries and Equity Funded Subsidiaries].
9..The following is a list of Outside Financing obtained by each Excluded Subsidiary: [List Outside Financing].
10.The following is a list of Seller Financing and Take Back Financing obtained by each Exempt Subsidiary: [List Seller Financing and Take Back Financing].
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IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed as of the date first above written.
XCEL BRANDS, INC.,
as Borrower
By:
Name:
Title:
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EXHIBIT E
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by [Insert Name of Credit Party], a [Insert Credit Party’s State of Formation] [Insert Credit Party’s form of organization] (“Grantor”) to Bank Hapoalim B.M. (hereinafter referred to as “Attorney”), as Administrative Agent, under a Loan and Security Agreement, dated as of April 12, 2021 and other related documents (the “Loan Documents”, capitalized terms used herein but not otherwise defined shall have the meaning assigned to them in the Loan Documents). No person to whom this Power of Attorney is presented, as authority for Attorney to take any action or actions contemplated hereby, shall be required to inquire into or seek confirmation from Grantor as to the authority of Attorney to take any action described below, or as to the existence of or fulfillment of any condition to this Power of Attorney, which is intended to grant to Attorney unconditionally the authority to take and perform the actions contemplated herein, and Grantor irrevocable waives any right to commence any suit or action, in law or equity, against any person or entity which acts in reliance upon or acknowledges the authority granted under this Power of Attorney. The power of attorney granted hereby is coupled with an interest, and may not be revoked or canceled by Grantor without Attorney’s written consent.
Grantor hereby irrevocably constitutes and appoints Attorney (and all officers, employees or agents designated by Attorney), with full power of substitution, as Grantor’s true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Grantor and in the name of Grantor or in its own name, from time to time in Attorney’s discretion, to take any and all appropriate action and to execute and deliver any and all documents and instruments which may be necessary or desirable to accomplish the purposes of the Loan Documents and, without limiting the generality of the foregoing, Grantor hereby grants to Attorney the power and right, on behalf of Grantor, without notice to or assent by Grantor, and at any time, to sell, transfer, pledge make any agreement with respect to or otherwise deal with any of the Collateral in such manner as is consistent with the Uniform Commercial Code of the State of New York and as fully and completely as though Attorney were the absolute owner thereof for all purposes, and to do at the Grantor’s expense, at any time, or from time to time, all acts and things which the Bank deems necessary to protect, preserve or realize upon the Collateral and Attorney’s security interest therein, in order to effect the intent of the Loan Documents, all as fully and effectively as Grantor might do, including, without limitation, (i) the filing and prosecuting of registration and transfer applications with the appropriate federal or local agencies or authorities with respect to trademarks, copyrights and patentable inventions and processes, (ii) the exercise of voting rights with respect to voting securities, which rights may be exercised, if Attorney so elects, with a view to causing the liquidation in a commercially reasonable manner of assets of the issuer of any such securities and (iii) the execution, delivery and recording, in connection with any sale or other disposition of any Collateral, of the endorsements, assignments or other instruments of conveyance or transfer with respect to such Collateral Grantor hereby ratifies, to the extent permitted by law, all that said Attorney shall lawfully do or cause to be done by virtue hereof.
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IN WITNESS WHEREOF, this Power of Attorney is executed by Grantor on [ ].
[Insert Name of Credit Party]
By:
Name:
Title:
NOTARY PUBLIC CERTIFICATE
On this _____ day of ______________, 2021, ______________, who is personally known to me appeared before me in his/her capacity as the ____________ of __________ (“Grantor”) and executed on behalf of Grantor the Power of Attorney in favor of Bank Hapoalim B.M. to which this Certificate is attached.
Notary Public
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EXHIBIT F
FORM OF QUARTERLY ROYALTY COLLECTIONS REPORT
[Credit Party Name]
Royalty Collection Report
Quarter Ending [___________________]
Account No. | Licensee | Contract Year | [Quarter] Revenue Payments Received | [Quarter] Guaranteed Minimum Royalties | [Quarter] Revenues (GAAP Basis) |
| | | | | |
| | | | | |
| | | [Total] | [Total] | [Total] |
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EXHIBIT G
FORM OF ASSIGNMENT AGREEMENT
This ASSIGNMENT, dated as of the Closing Date, is entered into between ___________ (“Assignor”) and ___________ (“Assignee”).
The parties hereto hereby agree as follows:
Borrower: | Xcel Brands, Inc., a Delaware (“Borrower”) | |||
Agent: | Bank Hapoalim B.M., as administrative and collateral agent for Lenders (in such capacity and together with its successors and permitted assigns, the “Administrative Agent”) | |||
Loan Agreement: | Loan and Security Agreement, dated as of April 12, 2021, among Borrower, the other Credit Parties party thereto, Lenders, the Agent and FEAC Agent, LLC, as co-collateral agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”; capitalized terms used herein without definition are used as defined in the Loan Agreement) | |||
Effective Date: | _________, ____ | |||
| | |||
Loans/ Commitment Assigned | Aggregate amount of Commitments or principal amount of Loans for all Lenders | Aggregate amount of Commitments or principal amount of Loans Assigned | Percentage Assigned | |
Revolving Loan Discretionary Commitment | $______________ | $______________ | __.___% | |
Term Loan A | $______________ | $______________ | __.___% | |
Term Loan B | $______________ | $______________ | __.___% | |
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
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| 3 | |
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
[NAME OF ASSIGNOR], as Assignor
By:
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By:
Name:
Title:
Lending Office (and address for notices) for any other purpose:
[Insert Address (including contact name, fax number and e-mail address)]
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ACCEPTED and AGREED
this __ day of ______ _____:
BANK HAPOALIM B.M., as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
XCEL BRANDS, INC.,
as Borrower
By:
Name:
Title:
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EXHIBIT H
FORM OF REQUEST FOR REVOLVING LOAN
_______________ __, ____
Bank Hapoalim B.M.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement, dated as of April 12, 2021 a(as the same may be amended, restated, supplemented or otherwise modified from time to time, among Xcel Brands, Inc., the other Credit Parties party thereto from time to time, Lenders party thereto from time to time, Bank Hapoalim B.M., as administrative agent and collateral agent for such Lenders and FEAC Agent, LLC, as co-collateral agent for such Lenders (as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Loan Agreement. Borrower hereby gives Administrative Agent irrevocable notice, pursuant to the Loan Agreement of its request of a Revolving Loan (the “Proposed Loan”) under the Loan Agreement and, in that connection, sets forth the following information:
1.The date of the Proposed Loan is __________, ____ (the “Funding Date”).
2.The aggregate principal amount of requested Revolving Loans is $_________.
3.The Proposed Loan shall bear interest based upon [the Base Rate][LIBOR rate].
Borrower hereby certifies that, except as set forth on Schedule A attached hereto, the following statements are true on the date hereof and will be true on the Funding Date, both before and after giving effect to the Proposed Loan and any other Loan to be made on or before the Funding Date:
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IN WITNESS WHEREOF, Borrower has executed and delivered this Notice by and through an authorized officer as of the date and year first set forth above.
XCEL BRANDS, INC.
By:
Name:
Title:
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DISCLOSURE SCHEDULE 7.2
NAMES, ORGANIZATIONAL INFORMATION, COLLATERAL LOCATIONS
Credit Party’s official name; State of Incorporation or Organization; Type of entity; Organizational identification number issued by Borrower’s state of incorporation or organization or a statement that no such number has been issued:
Chief Executive Office and principal place of business:
Warehouses:
Other Premises at which Collateral is stored or Location:
Locations of Records Concerning Collateral:
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DISCLOSURE SCHEDULE 7.6
REAL ESTATE
[Describe all real property owned or leased or used in business]
Address | Type [owned, leased, warehouse] | County | |
| | | |
| | | |
| | | |
| | | |
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DISCLOSURE SCHEDULE 7.7
VENTURES, SUBSIDIARIES AND AFFILIATES
[List all subsidiaries, affiliates and joint ventures]
Name | Type (subsidiary, affiliate, etc.) | Percentage owned by |
| | |
| | |
| | |
| | |
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DISCLOSURE SCHEDULE 7.9
TAXES
[List all matters described in Section 7.9]
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DISCLOSURE SCHEDULE 7.12
LITIGATION
[Describe all material Litigation and amount in controversy]
| 1 | |
DISCLOSURE SCHEDULE 7.13
INTELLECTUAL PROPERTY
[Describe all Intellectual Property used or licensed]
Description | Owner Registration # | License (if any) | Type (Trademark, Patent, Copyright, etc.) |
|---|---|---|---|
| | | |
| | | |
| | | |
| 1 | |
DISCLOSURE SCHEDULE 7.15
ENVIRONMENTAL MATTERS
[Describe any Environmental Matters referenced to in Section 7.15]
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DISCLOSURE SCHEDULE 7.16
INSURANCE
[List all Insurance Policies]
Type | Insured | Beneficiary | Amount |
| | | |
| | | |
| | | |
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DISCLOSURE SCHEDULE 7.17
DEPOSIT AND DISBURSEMENT ACCOUNTS
Payroll Account
Xxxxx Cash Account
Other Accounts
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DISCLOSURE SCHEDULE 9.10
INDEBTEDNESS
[Give detailed description of Indebtedness existing as of Closing Date.]
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DISCLOSURE SCHEDULE 9.11
PERMITTED LIENS
[Give detailed description of Liens existing as of the Closing Date.]
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