UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of Earliest Event Reported):
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June 30, 2015
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SKECHERS U.S.A., INC.
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(Exact name of registrant as specified in its charter)
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Delaware
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001-14429
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95-4376145
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_____________________
(State or other jurisdiction
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_____________
(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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228 Manhattan Beach Boulevard, Manhattan Beach, California
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90266
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_________________________________
(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
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(310) 318-3100
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Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
Credit Agreement
On June 30, 2015, the Company entered into a credit agreement (the "Credit Agreement") by and among the Company, certain of its subsidiaries that are also borrowers under the Credit Agreement, certain of its subsidiaries that are guarantors under the Credit Agreement, and the following lenders: Bank of America, N.A., MUFG Union Bank, N.A. and HSBC Bank USA, National Association.
The Credit Agreement replaces the credit agreement dated June 30, 2009 that was entered into by and among the Company, certain of its subsidiaries and certain lenders including Wells Fargo Foothill, LLC, Bank of America, N.A., and Banc of America LLC, which expired on June 30, 2015.
The Company intends to use the proceeds from the Credit Agreement for the general corporate needs of the borrowers and for the financing of certain types of transaction as permitted by the Credit Agreement.
Form of Loans and Borrowing Limits
Borrowings made pursuant to the Credit Agreement may be in the form of revolving loans up to a maximum limit of $250 million (subject to increase to up to $350 million). The aggregate amount of revolving loans that may be issued also may not exceed the "borrowing base" of the borrowers less "revolver usage". The borrowing base is calculated based on a percentage of the borrowers’ eligible accounts receivable plus the sum of (a) the lesser of (i) a percentage of eligible inventor to be sold at wholesale and (ii) a percentage of net orderly liquidation value of eligible inventory to be sold at wholesale, plus (b) the lesser of (i) a percentage of the value of eligible inventory to be sold at retail and (ii) a percentage of net orderly liquidation value of eligible inventory to be sold at retail, plus (c) the lesser of (i) a percentage of the value of eligible in-transit Inventory and (ii) a percentage of the net orderly liquidation value of eligible in-transit inventory. Amounts borrowed as revolving loans under the Credit Agreement may be borrowed, repaid and re-borrowed from time to time.
Interest
Interest will accrue at a floating rate based on, at the borrowers' election, (a) LIBOR or (b) the greater of (i) the Prime Rate, (ii) the Federal Funds Rate plus 0.5% and (iii) LIBOR for a 30 day period plus 1.0%, in each case, plus an applicable margin based on the average daily principal balance of revolving loans available under the Credit Agreement.
Fees
A line of credit fee will be payable monthly at an amount equal to 0.25%, multiplied by the $250 million line of credit (subject to increase to up to $350 million) less the average daily principal balance of outstanding revolving loans and the average daily undrawn amounts of letters of credit outstanding during such month. This fee will be payable on the first day of each month in arrears. In addition, in connection with the execution and performance of the Credit Agreement, the lenders and agent receive customary fees.
Security
All payment obligations of the borrowers to the lenders under the Credit Agreement are secured by a lien on all personal property of the borrowers and certain subsidiaries of the borrowers. In addition, all obligations under the Credit Agreement are guaranteed by certain subsidiaries of the Company. The obligations under the Credit Agreement are also secured by a pledge of the capital stock of certain of the Company's subsidiaries.
Dividends and Stock Redemption
The Credit Agreement permits the Company to pay dividends to its stockholders so long as the Company is able to satisfy certain financial conditions both before and immediately after giving effect to the proposed declaration and payment of dividends. The Credit Agreement also permits the Company to redeem shares of its stock so long as the Company is able to satisfy certain financial conditions both before and immediately after giving effect to the proposed redemption including on a pro forma at all times after the proposed date of such proposed redemption.
Covenants
The Credit Agreement contains customary affirmative and negative covenants for secured credit facilities of this type, including covenants that will limit the ability of the Company and its subsidiaries to, among other things, incur debt, grant liens, make certain acquisitions, dispose assets, effect a change of control of the Company, make certain restricted payments including certain dividends and stock redemptions, make certain investments or loans, enter into certain transactions with affiliates and certain prohibited uses of proceeds. The Credit Agreement also requires compliance with a minimum fixed charge coverage ration if Availability drops below 10% of the Revolver Commitments (as such terms are defined in the Credit Agreement) until the date when no event of default has existed and Availability has been over 10% for 30 consecutive days.
Events of Default
The Credit Agreement provides for customary events of default including payment defaults, breaches of representations or warranties or covenants, cross defaults with certain other indebtedness to third parties, certain judgments/awards/orders, certain losses, theft, damage or destruction of collateral, a change of control, criminal indictments or convictions of senior officers in certain circumstances and bankruptcy events, with, in certain circumstances, cure periods. In the case of a continuing event of default, the lenders may, among other remedies, accelerate the payment of all obligations due from the borrowers to the lenders, charge the borrowers the default rate of interest on all then outstanding or thereafter incurred obligations, and terminate the lenders' commitments to make any further loans or issue any further letters of credit. In the event of certain defaults, the commitments of the lenders will be automatically terminated and all outstanding obligations of the borrowers will automatically become due. In addition, the lenders may take possession of, and enforce the borrowers' rights with respect to, the borrowers' collateral, including selling the collateral.
This summary does not purport to be complete and is subject to and qualified in its entirety by reference to the text of the Credit Agreement included as Exhibit 10.1 to this filing. Exhibit 10.1 is incorporated by reference into this Item 1.01.
Certain of the lenders party to the Credit Agreement, and their respective affiliates, have performed, and may in the future perform for the Company and its subsidiaries, various commercial banking, investment banking, underwriting and other financial advisory services, for which they have received, and will receive, customary fees and expenses.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained under the heading "Credit Agreement" in Item 1.01 is incorporated by reference in this Item 2.03.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
10.1 Credit Agreement dated June 30, 2015, by and among the Registrant, certain of its subsidiaries who are also borrowers under the Agreement, certain of its subsidiaries who are guarantors under the Agreement, and Bank of America, N.A., MUFG Union Bank, N.A. and HSBC Bank USA, National Association.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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SKECHERS U.S.A., INC.
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July 6, 2015
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By:
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David Weinberg
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Name: David Weinberg
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Title: Chief Operating Officer
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Exhibit Index
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Exhibit No.
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Description
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10.1
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Credit Agreement dated June 30, 2015, by and among the Registrant, certain of its subsidiaries who are also borrowers under the Agreement, certain of its subsidiaries who are guarantors under the Agreement, and Bank of America, N.A., MUFG Union Bank, N.A. and HSBC Bank USA, National Association.
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LOAN AND SECURITY AGREEMENT
Dated as of June 30, 2015
SKECHERS U.S.A., INC.,
SKECHERS U.S.A., INC. II
and
SKECHERS BY MAIL, INC.
as Borrowers,
THE OTHER PERSONS FROM TIME TO TIME PARTY HERETO,
as Guarantors,
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,
BANK OF AMERICA, N.A.,
as Agent,
MUFG UNION BANK, N.A.
as Syndication Agent,
HSBC BANK USA, NATIONAL ASSOCIATION,
as Managing Agent
and
BANK OF AMERICA, N.A.,
as Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
Page
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SECTION 1.
1.1
1.2
1.3
1.4
SECTION 2.
2.1
2.2
2.3
SECTION 3.
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
SECTION 4.
4.1
4.2
4.3
4.4
4.5
4.6
SECTION 5.
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
SECTION 6.
6.1
6.2
6.3
SECTION 7.
7.1
7.2
7.3
7.4
7.5
7.6
SECTION 8.
8.1
8.2
8.3
8.4
8.5
8.6
8.7
SECTION 9.
9.1
9.2
SECTION 10.
10.1
10.2
10.3
SECTION 11.
11.1
11.2
11.3
11.4
11.5
SECTION 12.
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
12.10
12.11
12.12
12.13
12.14
SECTION 13.
13.1
13.2
13.3
13.4
SECTION 14.
14.1
14.2
14.3
14.4
14.5
14.6
14.7
14.8
14.9
14.10
14.11
14.12
14.13
14.14
14.15
14.16
14.17
14.18
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DEFINITIONS; RULES OF CONSTRUCTION
Definitions.
Accounting Terms.
Uniform Commercial Code.
Certain Matters of Construction.
CREDIT FACILITIES
Revolver Commitment
2.1.1Revolver Loans
2.1.2Notes
2.1.3Use of Proceeds
2.1.4Voluntary Reduction or Termination of Revolver Commitments.
2.1.5Overadvances
2.1.6Protective Advances
2.1.7Increase in Revolver Commitments
[Intentionally Omitted].
Letter of Credit Facility
2.3.1Issuance of Letters of Credit
2.3.2Reimbursement; Participations.
2.3.3Cash Collateral
2.3.4Resignation of Issuing Bank
INTEREST, FEES AND CHARGES
Interest.
3.1.1Rates and Payment of Interest.
3.1.2Application of LIBOR to Outstanding Loans.
3.1.3Interest Periods
3.1.4Interest Rate Not Ascertainable
Fees.
3.2.1Unused Line Fee
3.2.2LC Facility Fees
3.2.3Closing Fee
3.2.4Fee Letters
Computation of Interest, Fees, Yield Protection.
Reimbursement Obligations.
Illegality.
Inability to Determine Rates.
Increased Costs; Capital Adequacy.
3.7.1Increased Costs Generally
3.7.2Capital Requirements
3.7.3LIBOR Loan Reserves
3.7.4Compensation
Mitigation.
Funding Losses.
LOAN ADMINISTRATION
Manner of Borrowing and Funding Revolver Loans.
4.1.1Notice of Borrowing.
4.1.2Fundings by Lenders.
4.1.3Swingline Loans; Settlement.
4.1.4Notices.
Defaulting Lender.
4.2.1Reallocation of Pro Rata Share; Amendments.
4.2.2Payments; Fees.
4.2.3Status; Cure.
Number and Amount of LIBOR Loans; Determination of Rate.
Borrower Agent.
One Obligation.
Effect of Termination.
PAYMENTS
General Payment Provisions.
Repayment of Revolver Loans.
[Intentionally Omitted].
Payment of Other Obligations.
Marshaling; Payments Set Aside.
Application and Allocation of Payments.
5.6.1Application
5.6.2Post-Default Allocation
5.6.3Erroneous Application
Dominion Account.
Account Stated.
Taxes.
5.9.1Payments Free of Taxes; Obligation to Withhold; Tax Payment
5.9.2Payment of Other Taxes
5.9.3Tax Indemnification
5.9.4Evidence of Payments
5.9.5Treatment of Certain Refunds
5.9.6Survival
Lender Tax Information
5.10.1Status of Lenders
5.10.2Documentation
5.10.3Redelivery of Documentation
Guaranty; Nature and Extent of Liability.
5.11.1Guaranty; Joint and Several Liability
5.11.2Permitted Actions
5.11.3Waivers
5.11.4Extent of Liability; Contribution.
5.11.5Qualified ECP and Swap Obligations.
5.11.6Joint Enterprise.
5.11.7Subordination.
5.11.8Subrogation.
5.11.9Independent Obligations.
5.11.10Stay of Acceleration.
CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT
Conditions Precedent to Initial Loans
Conditions Precedent to All Credit Extensions.
Conditions Subsequent.
COLLATERAL
Grant of Security Interest.
Lien on Deposit Accounts and Securities Accounts; Cash Collateral.
7.2.1Deposit Accounts and Securities Accounts
7.2.2Cash Collateral
Pledged Collateral.
7.3.1Pledged Equity.
7.3.2Covenants
7.3.3Other Rights.
7.3.4Additional Interests
7.3.5Registration Rights
Other Collateral
7.4.1Commercial Tort Claims
7.4.2Certain After-Acquired Collateral
Limitations.
Further Assurances.
COLLATERAL ADMINISTRATION
Borrowing Base Reports.
Accounts.
8.2.1Records and Schedules of Accounts
8.2.2Taxes
8.2.3Account Verification
8.2.4Maintenance of Dominion Account
8.2.5Proceeds of Collateral
Inventory.
8.3.1Records and Reports of Inventory
8.3.2Returns of Inventory
8.3.3Acquisition, Sale and Maintenance
Equipment.
8.4.1Records and Schedules of Equipment
8.4.2Dispositions of Equipment
8.4.3Condition of Equipment
Deposit Accounts and Securities Accounts.
8.5.1Accounts Generally
8.5.2Retail Deposit Accounts
General Provisions.
8.6.1Location of Collateral
8.6.2Insurance of Collateral
8.6.3Protection of Collateral
8.6.4Defense of Title
Power of Attorney
REPRESENTATIONS AND WARRANTIES
General Representations and Warranties.
9.1.1Organization and Qualification
9.1.2Power and Authority
9.1.3Enforceability
9.1.4Capital Structure
9.1.5Title to Properties; Priority of Liens
9.1.6Accounts
9.1.7Financial Statements
9.1.8Surety Obligations
9.1.9Taxes
9.1.10Brokers
9.1.11Intellectual Property
9.1.12Governmental Approvals
9.1.13Compliance with Laws
9.1.14Compliance with Environmental Laws
9.1.15Burdensome Contracts
9.1.16Litigation
9.1.17No Defaults
9.1.18ERISA
9.1.19Trade Relations
9.1.20Labor Relations
9.1.21Payable Practices
9.1.22Not a Regulated Entity
9.1.23Margin Stock
9.1.24OFAC
9.1.25Anti-Corruption Laws.
Complete Disclosure.
COVENANTS AND CONTINUING AGREEMENTS
Affirmative Covenants.
10.1.1Inspections; Appraisals
10.1.2Financial and Other Information
10.1.3Notices
10.1.4Landlord and Storage Agreements
10.1.5Compliance with Laws
10.1.6Taxes
10.1.7Insurance
10.1.8Licenses
10.1.9Future Subsidiaries
10.1.10Anti-Corruption Laws
10.1.11Business Locations.
Negative Covenants.
10.2.1Permitted Debt
10.2.2Permitted Liens
10.2.3[Intentionally Omitted]
10.2.4Distributions; Upstream Payments
10.2.5Restricted Investments
10.2.6Disposition of Assets
10.2.7Loans
10.2.8Restrictions on Payment of Certain Debt
10.2.9Fundamental Changes
10.2.10Subsidiaries
10.2.11Organic Documents
10.2.12Tax Consolidation
10.2.13Accounting Changes
10.2.14Restrictive Agreements
10.2.15Hedging Agreements
10.2.16Conduct of Business
10.2.17Affiliate Transactions
10.2.18Plans
10.2.19Amendments to Subordinated Debt
Financial Covenants.
10.3.1Fixed Charge Coverage Ratio
EVENTS OF DEFAULT; REMEDIES ON DEFAULT
Events of Default.
Remedies upon Default.
License.
Setoff.
Remedies Cumulative; No Waiver.
11.5.1Cumulative Rights
11.5.2Waivers
AGENT
Appointment, Authority and Duties of Agent
12.1.1Appointment and Authority
12.1.2Duties
12.1.3Agent Professionals.
12.1.4Instructions of Required Lenders.
Agreements Regarding Collateral and Borrower Materials
12.2.1Lien Releases; Care of Collateral
12.2.2Possession of Collateral
12.2.3Reports
Reliance By Agent.
Action Upon Default.
Ratable Sharing.
Indemnification.
Limitation on Responsibilities of Agent.
Successor Agent and Co-Agents.
12.8.1Resignation; Successor Agent.
12.8.2Co-Collateral Agent.
Due Diligence and Non-Reliance.
Remittance of Payments and Collections.
12.10.1Remittances Generally.
12.10.2Failure to Pay
12.10.3Recovery of Payments
Individual Capacities.
Titles.
Bank Product Providers.
No Third Party Beneficiaries.
BENEFIT OF AGREEMENT; ASSIGNMENTS
Successors and Assigns.
Participations.
13.2.1Permitted Participants; Effect
13.2.2Voting Rights
13.2.3Participant Register
13.2.4Benefit of Setoff
Assignments.
13.3.1Permitted Assignments
13.3.2Effect; Effective Date
13.3.3Certain Assignees
13.3.4Register.
Replacement of Certain Lenders.
MISCELLANEOUS
Consents, Amendments and Waivers.
14.1.1Amendment
14.1.2Limitations
14.1.3Payment for Consents
Indemnity.
Notices and Communications.
14.3.1Notice Address
14.3.2Communications
14.3.3Platform
14.3.4Public Information
14.3.5Non-Conforming Communications
Performance of Obligors Obligations; Lien Waivers
Credit Inquiries.
Severability.
Cumulative Effect; Conflict of Terms.
Counterparts; Execution.
Entire Agreement.
Relationship with Lenders.
No Advisory or Fiduciary Responsibility.
Confidentiality.
[Intentionally Omitted].
GOVERNING LAW.
Consent to Forum.
14.15.1Forum
14.15.2Other Jurisdictions
14.15.3Judicial Reference
Waivers by Obligors.
Patriot Act Notice.
NO ORAL AGREEMENT. |
LIST OF EXHIBITS AND SCHEDULES
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Exhibit A
Exhibit B
Exhibit C
Exhibit D
Schedule P-1
Schedule 1.1
Schedule 2.3.1
Schedule 7.3
Schedule 8.6.1
Schedule 9.1.4(a)
Schedule 9.1.4(b)
Schedule 9.1.11
Schedule 9.1.14
Schedule 9.1.15
Schedule 9.1.16
Schedule 9.1.18
Schedule 9.1.20
Schedule 10.2.2
Schedule 10.2.5
Schedule 10.2.7
Schedule 10.2.17
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Assignment
Form of Note
Form of Compliance Certificate
Assignment Notice
Permitted Holders
Commitments of Lenders
Existing Letters of Credit
Pledged Equity
Business Locations
Names and Capital Structure
Closing Date Debt
Patents, Trademarks, Copyrights and Licenses
Environmental Matters
Restrictive Agreements
Commercial Tort Claims
Pension Plans
Labor Contracts
Existing Liens
Closing Date Investments
Closing Date Intercompany Loans
Existing Affiliate Transactions |
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is dated as of June 30, 2015, among SKECHERS U.S.A., INC., a
Delaware corporation (Skechers), SKECHERS U.S.A., INC. II, a Delaware corporation
(Skechers II), SKECHERS BY MAIL, INC., a Delaware corporation (Skechers By Mail
and, together with Skechers and Skechers II, collectively, the Borrowers and,
individually, each a Borrower), the other Persons party to this Agreement from time to
time as Guarantors (the Guarantors), the financial institutions party to this Agreement
from time to time as Lenders, and
BANK OF AMERICA, N.A., a national banking association, as agent for the Lenders (Agent).
R E C I T A L S:
Borrowers have requested that Lenders provide a credit facility to Borrowers to finance their
mutual and collective business enterprise. Lenders are willing to provide the credit facility on
the terms and conditions set forth in this Agreement.
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NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:
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SECTION 1.DEFINITIONS; RULES OF CONSTRUCTION
1.1
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Definitions. As used herein, the following terms have the meanings set forth below: |
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Account: as defined in the UCC, including all rights to payment for goods sold or
leased, or for services rendered.
Account Debtor: a Person obligated under an Account, Chattel Paper or General
Intangible.
Accounts Formula Amount: 85% of the Value of Eligible Accounts; provided, that
(a) no greater than $10,000,000 of the Accounts Formula Amount may be derived from Eligible
Extended Terms Accounts, and (b) no greater than $10,000,000 of the Accounts Formula Amount may be
derived from Eligible U.S. Government Accounts. If any single Account would constitute both an
Eligible Extended Terms Account and an Eligible U.S. Government Account, the full amount of such
Account shall be included for purposes of calculating both of the sublimits described in clauses
(a) and (b) above.
Acquisition: a transaction or series of transactions resulting in (a) acquisition of a
business, division or substantially all assets of a Person; (b) record or beneficial ownership of
50% or more of the Equity Interests of a Person; or (c) merger, consolidation or combination of any
Borrower or Subsidiary with another Person.
Affiliate: with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified; provided, that if any Obligor or Subsidiary owns,
directly or indirectly, 10% or more of the outstanding Equity Interests of any Person (including
any joint venture), such Person shall be deemed to be an Affiliate of such Obligor or Subsidiary.
Agent Indemnitees: Agent and its officers, directors, employees, Affiliates, agents
and attorneys.
Agent Professionals: attorneys, accountants, appraisers, auditors, business valuation
experts, environmental engineers or consultants, turnaround consultants, and other professionals
and experts retained by Agent.
Allocable Amount: as defined in Section 5.11.4.
Anti-Terrorism Law: any law relating to terrorism or money laundering, including the
Patriot Act.
Applicable Law: all laws, rules, regulations and governmental guidelines applicable to
the Person, conduct, transaction, agreement or matter in question, including all applicable
statutory law, common law and equitable principles, and all provisions of constitutions, treaties,
statutes, rules, regulations, orders and decrees of Governmental Authorities.
Applicable Margin: for any date of determination, the applicable margin set forth
below opposite the average daily Availability for the most recently completed Fiscal Quarter:
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Level |
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Average Daily |
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Base Rate Revolver |
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LIBOR Revolver Loans |
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Availability |
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Loans |
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I
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Greater than or equal
to $150,000,000
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0.25%
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1.25%
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II
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Greater than or equal
to $75,000,000 but
less than
$150,000,000
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0.50%
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1.50%
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III
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Less than $75,000,000
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0.75 |
% |
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1.75 |
% |
Until September 30, 2015, margins shall be determined as if Level I were applicable. Thereafter,
margins shall be subject to increase or decrease by Agent on the first day of the calendar month
following each Fiscal Quarter end. If Agent is unable to calculate average daily Availability for
a Fiscal Quarter due to Borrowers failure to deliver any Borrowing Base Report when required
hereunder, then, at the option of Agent or Required Lenders, margins shall be determined as if
Level III were applicable until the first day of the calendar month following its receipt.
Applicable Reporting Date: (a) with respect to quarterly reports, the close of
business of the most recently ended Fiscal Quarter, (b) with respect to monthly reports, the close
of business of the most recently ended month, (c) with respect to weekly reports, the close of
business of the most recently ended week, and (d) with respect to reports due on any Applicable
Reporting Deadline set by Agent pursuant to clause (c) of the definition thereof, the close of
business of such day Agent may require in its Permitted Discretion.
Applicable Reporting Deadline: quarterly Borrowing Base Reports will be delivered to
Agent within thirty (30) days after the end of each Fiscal Quarter; provided that (a) while
Availability is less than $100,000,000 and/or during any Dominion Period, monthly Borrowing Base
Reports will be delivered to Agent within thirty (30) days after the end of each month, (b) during
a Dominion Period, in addition to the monthly Borrowing Base Reports required pursuant to clause
(a) above, weekly Borrowing Base Report roll-forwards will be delivered to Agent weekly, by
Wednesday of each week for the report covering the preceding week, and (c) during the existence of
an Event of Default, in addition to the monthly and weekly Borrowing Base Reports and roll-forwards
required pursuant to clauses (a) and (b) above, Borrowing Base Report roll-forwards will be
delivered to Agent with such frequency as Agent may require in its sole discretion;
provided, further that, unless otherwise agreed by Agent and Borrower Agent, no
Applicable Reporting Deadline shall be deemed to have occurred earlier than 5 Business Days
following delivery to Borrower Agent of the draft ineligible Account information initially prepared
by Agent as described in Section 8.1.
Approved Fund: any Person (other than a natural Person) engaged in making, purchasing,
holding or otherwise investing in commercial loans in its ordinary course of activities and which
is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
Asset Disposition: a sale, lease, license, consignment, transfer or other disposition
of Property of an Obligor, including any disposition in connection with a sale-leaseback
transaction or synthetic lease.
Assignment: an assignment agreement between a Lender and Eligible Assignee, in the
form of Exhibit A or otherwise satisfactory to Agent.
Availability: the Borrowing Base minus Revolver Usage.
Availability Reserve: the sum (without duplication) of (a) the Inventory Reserve;
(b) the Rent and Charges Reserve; (c) the Bank Product Reserve; (d) the aggregate amount of
liabilities secured by Liens upon Eligible Inventory, Eligible In-Transit Inventory or Eligible
Accounts that are senior to Agents Liens (but imposition of any such reserve shall not waive an
Event of Default arising therefrom); (e) the Dilution Reserve; (f) reserves, if any, as the Agent
in its Permitted Discretion may elect to impose in respect of (and not to exceed the amount
of) judgments, orders or awards for the payment of money entered or filed against an Obligor or any
of its Subsidiaries (or with respect to any of their respective assets) for which the applicable
insurer has issued a denial of coverage or a reservation of rights therefor, if either (i) there is
a period of 30 consecutive days at any time after the entry of any such judgment, order, or award
during which the same is not discharged or satisfied or a stay of enforcement thereof is not in
effect, or (ii) enforcement proceedings are commenced upon such judgment, order, or award; and
(g) such additional reserves, if any, in such amounts and with respect to such matters, as Agent in
its Permitted Discretion may elect to impose from time to time, including without limitation with
respect to accrued Royalties, whether or not then due and payable by a Borrower.
Bank of America: Bank of America, N.A., a national banking association, and its
successors and assigns.
Bank of America Indemnitees: Bank of America and its officers, directors, employees,
Affiliates, agents and attorneys.
Bank Product: any of the following products, services or facilities extended to any
Obligor or Subsidiary by a Lender or any of its Affiliates: (a) Cash Management Services;
(b) products under Hedging Agreements; (c) commercial credit card and merchant card services;
(d) supply chain, inventory floor-planning and other similar types of financings; and (e) other
banking products or services, other than Letters of Credit.
Bank Product Reserve: the aggregate amount of reserves, if any, established by Agent
from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations, based
upon Agents reasonable determination of the credit exposure of the Obligors in respect of Secured
Bank Product Obligations.
Bankruptcy Code: Title 11 of the United States Code.
Base Rate: for any day, a per annum rate equal to the greater of (a) the Prime Rate
for such day; (b) the Federal Funds Rate for such day, plus 0.50%; (c) LIBOR for a 30 day interest
period as of such day, plus 1.0%.
Base Rate Loan: any Loan that bears interest based on the Base Rate.
Base Rate Revolver Loan: a Revolver Loan that bears interest based on the Base Rate.
Board of Directors: the board of directors (or comparable managers) of Skechers or any
committee thereof duly authorized to act on behalf of the board of directors (or comparable
managers).
Board of Governors: the Board of Governors of the Federal Reserve System.
Borrower Agent: as defined in Section 4.4.
Borrower Materials: Borrowing Base Reports, Compliance Certificates and other
information, reports, financial statements and other materials delivered by any Borrower hereunder,
as well as other Reports provided by Agent to Lenders.
Borrowing: a group of Loans that are made or converted together on the same day and
have the same interest option and, if applicable, Interest Period.
Borrowing Base: on any date of determination, an amount equal to the lesser of (a) the
aggregate Revolver Commitments; or (b) the sum of the Accounts Formula Amount, plus the
Inventory Formula Amount, minus the Availability Reserve.
Borrowing Base Report: a report of the Borrowing Base by Borrowers, in form and
substance reasonably satisfactory to Agent.
Business Day: any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the laws of, or are in fact closed in, North Carolina or
California, and if such day relates to a LIBOR Loan, any such day on which dealings in Dollar
deposits are conducted in the London interbank market.
Capital Expenditures: all liabilities incurred or expenditures made by any Borrower or
Subsidiary for the acquisition of fixed assets, or any improvements, replacements, substitutions or
additions thereto, in each case to the extent the same is a capital expenditure in accordance with
GAAP; provided that Capital Expenditures shall only include the amount by which the
purchase price of such fixed asset (or improvement, replacement, substitution or addition
thereto) exceeds (i) the credit granted by the seller of such fixed asset (or improvement,
replacement, substitution or addition thereto) for any other asset being traded in at the time of
purchase and (ii) the amount of any net cash insurance proceeds used by such Borrower or Subsidiary
to purchase such fixed asset (or improvement, replacement, substitution or addition thereto), as
applicable.
Capital Lease: any lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP.
Cash Collateral: cash, and any interest or other income earned thereon, that is
delivered to Agent to Cash Collateralize any Obligations.
Cash Collateral Account: a demand deposit, money market or other account established
by Agent at such financial institution as Agent may select in its discretion, which account shall
be subject to a Lien in favor of Agent.
Cash Collateralize: the delivery of cash to Agent, as security for the payment of
Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC
Obligations, and (b) with respect to any inchoate or contingent Obligations (including any inchoate
or contingent Secured Bank Product Obligations) with respect to which a claim therefor has been
asserted, Agents good faith estimate of the amount due or to become due, including fees, expenses
and indemnification hereunder. Cash Collateralization has a correlative meaning.
Cash Equivalents: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within 1 year from the date of acquisition
thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United
States or any political subdivision of any such state or any public instrumentality thereof
maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from either S&P or Moodys, (c) commercial paper maturing
no more than 270 days from the date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from Moodys, (d) certificates of deposit, time
deposits, overnight bank deposits or bankers acceptances maturing within 1 year from the date of
acquisition thereof issued by any bank organized under the laws of the United States or any state
thereof or the District of Columbia or any United States branch of a foreign bank having at the
date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e) deposit
accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or
(ii) any other bank organized under the laws of the United States or any state thereof so long as
the full amount maintained with any such other bank is insured by the Federal Deposit Insurance
Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of
clause (d) of this definition or recognized securities dealer having combined capital and surplus
of not less than $250,000,000, having a term of not more than seven days, with respect to
securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities
of six months or less from the date of acquisition backed by standby letters of credit issued by
any commercial bank satisfying the criteria described in clause (d) above, and (h) investments in
money market funds substantially all of whose assets are invested in the types of assets described
in clauses (a) through (g) above.
Cash Management Services: services relating to operating, collections, payroll, trust,
or other depository or disbursement accounts, including automated clearinghouse, e-payable,
electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services.
CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. § 9601 et seq.).
CFC: a Subsidiary that is a controlled foreign corporation under Section 957 of the
Code.
Change in Law: the occurrence, after the date hereof, of (a) the adoption or taking
effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any Governmental
Authority; or (c) the making, or issuance of any request, guideline, requirement or directive
(whether or not having the force of law) by any Governmental Authority; provided,
however, that Change in Law shall include, regardless of the date enacted, adopted or
issued, all requests, rules, guidelines, requirements or directives (i) under or relating to the
Dodd-Frank Wall Street Reform and Consumer Protection Act, or (ii) promulgated pursuant to Basel
III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any
similar authority) or any other Governmental Authority.
Change of Control: (a) Permitted Holders fail to own and control, directly or
indirectly, the Majority Voting Equity Interests, (b) the acquisition of direct or indirect Control
of Skechers by any person or group (within the meaning of Sections 13(d) and 14(d) of the
Securities Exchange Act), other than Permitted Holders, (c) Skechers fails to own and
control, directly or indirectly, 100% of the Equity Interests of each other Obligor (except
pursuant to a transaction expressly permitted hereunder), or (d) the sale or transfer of all or
substantially all of assets of an Obligor, except to another Obligor or in a transaction otherwise
expressly permitted hereunder.
Claims: all claims, liabilities, obligations, losses, damages, penalties, judgments,
proceedings, interest, costs and expenses of any kind (including remedial response costs,
reasonable attorneys fees and Extraordinary Expenses) at any time (including after Full Payment of
the Obligations or replacement of Agent or any Lender) incurred by any Indemnitee or asserted
against any Indemnitee by any Obligor or other Person, in any way relating to (a) any Loans,
Letters of Credit, Loan Documents, Borrower Materials, or the use thereof or transactions relating
thereto, (b) any action taken or omitted in connection with any Loan Documents, (c) the existence
or perfection of any Liens granted under any of the Loan Documents, or realization upon any
Collateral, (d) exercise of any rights or remedies under any Loan Documents or under Applicable Law
with respect to the relationships established by the Loan Documents, or (e) failure by any Obligor
to perform or observe any terms of any Loan Document, in each case including all costs and expenses
relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency
Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.
Closing Date: as defined in Section 6.1.
Code: the Internal Revenue Code of 1986.
Collateral: all Property described in Section 7.1, all Property described in any
Security Documents as security for any Obligations, and all other Property that now or hereafter
secures (or is intended to secure) any Obligations.
Commitment: for any Lender, such Lenders Revolver Commitment. Commitments
means the aggregate amount of all Revolver Commitments.
Commitment Termination Date: the earliest to occur of (a) the Revolver Termination
Date; (b) the date on which Borrowers terminate the Revolver Commitments pursuant to Section 2.1.4;
or (c) the date on which the Revolver Commitments are terminated pursuant to Section 11.2.
Commodity Exchange Act: the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
Competitor: any Person that is, or is directly or indirectly Controlled by any Person,
primarily engaged in the footwear business.
Compliance Certificate: a certificate, in the form of Exhibit C, duly completed.
Connection Income Taxes: Other Connection Taxes that are imposed on or measured by net
income (however denominated), or are franchise or branch profits Taxes.
Contingent Obligation: any obligation of a Person arising from a guaranty, indemnity
or other assurance of payment or performance of any Debt (primary obligations) of another
obligor (primary obligor) in any manner, whether directly or indirectly, including any
obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of
an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments
regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to
purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or
payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net
worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of
assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to
assure or hold harmless the holder of any primary obligation against loss in respect thereof. The
amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the
primary obligation (or, if less, the maximum amount for which such Person may be liable under the
instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability with respect thereto.
Control: the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. Controlling and Controlled have correlative
meanings.
Covenant Testing Period: the period (a) commencing at any time Availability is less
than 10.0% of all Revolver Commitments; and (b) continuing until, at all times during each of the
preceding 30 consecutive days: (i) no Event of Default has existed and (ii) Availability has been
greater than 10.0% of all Revolver Commitments.
Credit Card Issuer: any Person who issues or whose members issue credit cards, check
cards, debit cards, stored value cards or other similar cards used by customers of Borrowers to
purchase goods, including Household, Carte Blanche, Diners, Discover, MasterCard, VISA and American
Express.
Credit Card Processor: PayPal, Inc. and any other servicing or processing agent or any
factor or financial intermediary who facilitates, services, processes or manages the credit
authorization, billing transfer and/or payment with respect to any sales transactions of Borrowers
involving (a) credit card, check card, debit card, stored value card or other similar card
purchases by consumers using credit cards, check cards, debit cards, stored value cards or other
similar cards issued by any Credit Card Issuer or (b) purchases by consumers using an account of
such Credit Card Processor.
Credit Card Receivables: all Accounts consisting of the rights of Borrowers to payment
by Credit Card Issuers or Credit Card Processors for merchandise sold to customers of Borrowers who
have purchased such goods using a credit card, check card, debit card, stored value card or other
similar card issued by a Credit Card Issuer or using an account of a Credit Card Processor.
CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Debt: (a) all obligations for borrowed money, including, in the case of any Obligor,
the Obligations, (b) all obligations evidenced by bonds, debentures, notes, or other similar
instruments and all reimbursement or other obligations in respect of letters of credit, bankers
acceptances, or other financial products, (c) all obligations as a lessee under Capital Leases,
(d) all obligations or liabilities of others secured by a Lien on any asset of a Person,
irrespective of whether such obligation or liability is assumed, (e) all obligations to pay the
deferred purchase price of assets (other than trade payables incurred in the ordinary course of
business and repayable in accordance with customary trade practices, and which are not evidenced by
a note or similar instrument), (f) all obligations owing under Hedging Agreements (which amount
shall be calculated based on the amount that would be payable by such Person if the Hedging
Agreement were terminated on the date of determination), (g) all Prohibited Preferred Stock, and
(h) all Contingent Obligations and other obligations guaranteeing or intended to guarantee (whether
directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any
obligation of any other Person that constitutes Debt under any of clauses (a) through (g) above.
For purposes of this definition, (i) the amount of any Debt represented by a guaranty or other
similar instrument shall be the lesser of the principal amount of the obligations guaranteed and
still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant
to the terms of the instrument embodying such Debt, (ii) the amount of any Debt described in clause
(d) above shall be the lower of the amount of the obligation and the fair market value of the
assets securing such obligation, and (iii) the Debt of a Person shall include any recourse Debt of
any partnership in which such Person is a general partner or joint venturer, unless such Debt is
expressly made non-recourse to such Person.
Default: an event or condition that, with the lapse of time or giving of notice, would
constitute an Event of Default.
Default Rate: for any Obligation (including, to the extent permitted by law, interest
not paid when due), 2% plus the interest rate otherwise applicable thereto.
Defaulting Lender: any Lender that (a) has failed to comply with its funding
obligations hereunder, and such failure is not cured within two Business Days; (b) has notified
Agent or any Borrower that such Lender does not intend to comply with its funding obligations
hereunder or under any other credit facility, or has made a public statement to that effect;
(c) has failed, within three Business Days following request by Agent or any Borrower, to confirm
in a manner satisfactory to Agent and Borrowers that such Lender will comply with its funding
obligations hereunder; or (d) has, or has a direct or indirect parent company that has, become the
subject of an Insolvency Proceeding (including reorganization, liquidation, or appointment of a
receiver, custodian, administrator or similar Person by the Federal Deposit Insurance Corporation
or any other regulatory authority); provided, however, that a Lender shall not be a
Defaulting Lender solely by virtue of a Governmental Authoritys ownership of an equity interest in
such Lender or parent company unless the ownership provides immunity for such Lender from
jurisdiction of courts within the United States or from enforcement of judgments or writs of
attachment on its assets, or permits such Lender or Governmental Authority to repudiate or
otherwise to reject such Lenders agreements.
Deposit Account Control Agreement: a control agreement satisfactory to Agent in its
Permitted Discretion executed by an institution maintaining a Deposit Account for an Obligor, to
perfect Agents Lien on such account.
Designated Jurisdiction: a country or territory that is the subject of a Sanction.
Dilution Percent: the percent, determined for the most recent six calendar month
period, equal to (a) Borrowers bad debt write-downs or write-offs, discounts, returns, promotions,
credits, credit memos and other dilutive items with respect to Accounts, divided by (b) Borrowers
gross sales.
Dilution Reserve: as of any date of determination, a reserve against the Eligible
Accounts equal to 1.0% for each whole percentage point (or portion thereof) by which the Dilution
Percent exceeds five percent (5.0%).
Distribution: any declaration or payment of a distribution, interest or dividend on
any Equity Interest (other than payment-in-kind or stock split) or purchase, redemption, or other
acquisition or retirement for value of any Equity Interest.
Dollars: lawful money of the United States.
Domestic Subsidiary: any Subsidiary that is not a Foreign Subsidiary.
Dominion Account: a special account subject at all times to a Deposit Account Control
Agreement, established by Borrowers at Bank of America or another bank acceptable to Agent in its
Permitted Discretion, over which Agent has exclusive control during any Dominion Period for
withdrawal purposes.
Dominion Period: the period (a) commencing at any time that an Event of Default occurs
or at any time Availability is less than 12.5% of all Revolver Commitments; and (b) continuing
until, at all times during each of the preceding 30 consecutive days: (i) no Event of Default has
existed and (ii) Availability has been greater than 12.5% of all Revolver Commitments.
EBITDA: determined for Skechers on a Consolidated Basis, net income, calculated before
interest expense, provision for income taxes, depreciation and amortization (including deferred
financing costs and intangibles) expense, gains or losses arising from the sale of capital assets,
any extraordinary gains, non-cash extraordinary losses, and non-cash stock compensation expenses
(in each case, to the extent included in determining net income). For the purposes of calculating
EBITDA for any period of 4 consecutive Fiscal Quarters (each, a Reference Period), if at
any time during such Reference Period (and after the Closing Date), Borrowers or any of its
Subsidiaries shall have made a Permitted Acquisition, EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto (including pro forma adjustments arising out of
events which are directly attributable to such Permitted Acquisition, are factually supportable,
and are expected to have a continuing impact, in each case to be mutually and reasonably agreed
upon by Borrowers and Agent) or in such other manner acceptable to Agent as if any such Permitted
Acquisition or adjustment occurred on the first day of such Reference Period.
Eligible Account: an Eligible Standard Account, Eligible Extended Terms Account or
Eligible U.S. Government Account.
Eligible Assignee: a Person that is (a) a Lender, Affiliate of a Lender or Approved
Fund; (b) an assignee approved by Borrower Agent (which approval shall not be unreasonably withheld
or delayed, and shall be deemed given if no objection is made within five (5) Business Days after
notice of the proposed assignment) and Agent; provided, it is acknowledged and agreed that
it will not be unreasonable for Borrower Agent to withhold its approval for an assignment to a
Competitor; and (c) during an Event of Default, any Person acceptable to Agent in its discretion.
Eligible Extended Terms Account: an Account that meets the requirements of an Eligible
Standard Account, except clause (a) of such definition, provided that such Account (a) has
selling terms of greater than 90 days, but not more than 120 days, and (b) is not unpaid for more
than 120 days after the original invoice date.
Eligible In-Transit Inventory: Inventory owned by a Borrower that would be Eligible
Inventory if it were not subject to a Document and in transit from a foreign location to a location
of the Borrowers owned or leased within the United States; provided, that without limiting
the foregoing, no Inventory shall be Eligible In-Transit Inventory unless (a) it is subject to
purchase orders and other sale documentation satisfactory to Agent in its Permitted Discretion and
is subject to a negotiable Document showing Agent (or, with the consent of Agent, the applicable
Borrower) as consignee, and which Document is in the possession of (i) Agent, or (ii) a customs
broker, a freight forwarder, or other handler of Inventory that has executed a Lien Waiver; (b) it
is insured in a manner satisfactory to Agent in its Permitted Discretion; (c) it is not sold by a
vendor with respect to whom any Borrower is in default of any obligations; (d) title to such
Inventory has passed to a Borrower; (e) it is shipped by a common carrier that is not affiliated
with the vendor and is not subject to any Sanction or on any specially designated nationals list
maintained by OFAC; and (f) it is not determined by Agent in its Permitted Discretion to be
ineligible for any other reason. Notwithstanding clause (a) above, Inventory in transit from a
foreign location to a location of a Borrower within the United States that is not in compliance
with clause (a) may continue to be considered Eligible In-Transit Inventory as long as no Default
or an Event of Default exists and Availability (calculated without giving effect to Availability
based on any Eligible In-Transit Inventory) is in an amount greater than 25% of all Revolver
Commitments.
Eligible Inventory: Inventory owned by a Borrower that (a) is finished goods or raw
materials, and not work-in-process, packaging or shipping materials, labels, samples, display
items, bags, replacement parts or manufacturing supplies; (b) is not held or placed on consignment,
nor subject to any deposit or down payment; (c) is in new (or returned undamaged and resaleable in
Borrowers Ordinary Course of Business) and saleable condition and is not damaged, defective,
shopworn or otherwise unfit for sale; (d) is not slow-moving, perishable, obsolete or
unmerchantable, and does not constitute returned or repossessed goods (other than goods returned
that are undamaged and resalable in Borrowers Ordinary Course of Business); (e) meets all
standards imposed by any Governmental Authority, has not been acquired from a Person subject to any
Sanction or on any specially designated nationals list maintained by OFAC, and does not constitute
hazardous materials under any Environmental Law; (f) conforms with the covenants and
representations herein; (g) is subject to Agents duly perfected, first priority Lien, and no other
Lien other than Permitted Liens; (h) is within the continental United States, is not in transit
except between locations of Borrowers, and is not consigned to any Person; (i) is not subject to
any warehouse receipt or negotiable Document unless such warehouse receipt or negotiable Document
shows Agent (or, with the consent of Agent, the applicable Borrower) as consignee, and which
warehouse receipt or negotiable Document is in the possession of (i) Agent, or (ii) a customs
broker, a freight forwarder, or other handler of Inventory that has executed a Lien Waiver; (j) is
not subject to any License or other arrangement that restricts such Borrowers or Agents right to
dispose of such Inventory, unless Agent has received an appropriate Lien Waiver; (k) is not located
on premises leased from a Person other than an Obligor (except for leased retail locations) or in
the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or
other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent
and Charges Reserve has been established; (l) is not located in any Landlord Lien Retail Location
unless (i) otherwise agreed by the Agent in its Permitted Discretion, (ii) a Lien Waiver has been
delivered with respect to such location or (iii) an appropriate Rent and Charges Reserve has been
established with respect to such location; (m) is not located on any Obligors owned Real Estate
that is subject to a mortgage, unless the applicable mortgagee has delivered a Lien Waiver or an
appropriate Rents and Charges Reserve has been established in respect thereof; (n) is reflected in
the details of a current perpetual inventory report; and (o) is not determined by Agent in its
Permitted Discretion to be ineligible for any other reason.
Eligible Standard Account: an Account owing to a Borrower that arises in the Ordinary
Course of Business from the sale of goods (but not from the provision of services or the
possession, use or operation by any Person other than Skechers of any Equipment) and is payable in
Dollars; provided, that without limiting the foregoing, no Account shall be an Eligible
Standard Account if (a)(i) it has selling terms of greater than 90 days or (ii) it is unpaid for
more than 60 days after the original due date or more than 90 days after the original invoice date;
(b) 50% or more of the Accounts owing by the Account Debtor are not Eligible Standard Accounts
under the foregoing clause (a)(ii) and do not otherwise qualify as Eligible Extended Terms Accounts
due to failure of the Account Debtor to make payment thereon within 120 days of original invoice
date; (c) when aggregated with other Accounts owing by the Account Debtor, it exceeds 15% of the
aggregate Eligible Standard Accounts (or such higher percentage(s) as Agent may establish for the
Account Debtor from time to time)(it being understood that only the Account or portion thereof in
excess of such concentration limit shall be excluded); (d) it does not conform with a covenant or
representation herein; (e) it is owing by a creditor or supplier which has or has asserted a right
of, or is otherwise subject to, offset, counterclaim, dispute, deduction, discount, recoupment,
reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount
thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor; or the
Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or
winding up its affairs, is not Solvent, or is subject to any Sanction or on any specially
designated nationals list maintained by OFAC; or a Borrower is not able to bring suit or enforce
remedies against the Account Debtor through judicial process; (g) the Account Debtor is organized
or has its principal offices or principal assets outside the United States or Canada, unless the
Account is supported by a letter of credit (delivered to and directly drawable by Agent) or credit
insurance satisfactory in all respects to Agent in its Permitted Discretion; (h) it is owing by a
Governmental Authority, unless the Account Debtor is the United States or any department, agency or
instrumentality thereof and the Account has been assigned to Agent in compliance with the federal
Assignment of Claims Act; (i) it is not subject to a duly perfected, first priority Lien in favor
of Agent, or is subject to any other Lien other than a Permitted Lien; (j) the goods giving rise to
it have not been shipped and billed to the Account Debtor or it otherwise does not represent a
final sale; (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced
to judgment; (l) its payment has been extended or the Account Debtor has made a partial payment;
(m) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, bill-and-hold,
guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return
basis, or from a sale for personal, family or household purposes; (n) it represents a progress
billing or retainage; (o) it includes a billing for interest, fees or late charges, but
ineligibility shall be limited to the extent thereof; (p) it is an Account that constitutes debit
memos; (q) it is an Account with respect to which a Borrower has agreed to grant the Account Debtor
a discount on the amount of the Account if the Account Debtor pays the discounted amount of the
Account within a certain time period, solely to the extent of the maximum proposed discount with
respect to the applicable Account; (r) it is a receivable in the form of royalties or other
payments from licensing activities; (s) it is a Credit Card Receivables; or (t) it is determined by
Agent in its Permitted Discretion to be ineligible for any other reason. In calculating delinquent
portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be
excluded.
Eligible U.S. Government Account: an Account owing by the United States or any
department, agency or instrumentality thereof and that otherwise meets the requirements of Eligible
Standard Account, except clause (h) of such definition.
Enforcement Action: any action to enforce any Obligations (other than Secured Bank
Product Obligations) or Loan Documents or to exercise any rights or remedies relating to any
Collateral (whether by judicial action, self-help, notification of Account Debtors, setoff or
recoupment, credit bid, action in an Obligors Insolvency Proceeding or otherwise).
Environmental Laws: Applicable Laws (including programs, permits and guidance
promulgated by regulators) relating to public health (other than occupational safety and health
regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and
CWA.
Environmental Notice: a notice (whether written or oral) from any Governmental
Authority or other Person of any possible noncompliance with, investigation of a possible violation
of, litigation relating to, or potential fine or liability under any Environmental Law, or with
respect to any Environmental Release, environmental pollution or hazardous materials, including any
complaint, summons, citation, order, claim, demand or request for correction, remediation or
otherwise.
Environmental Release: a release of hazardous materials regulated pursuant to any
Environmental Law (including, without limitation, CERCLA).
Equity Interest: the interest of any (a) shareholder in a corporation; (b) partner in
a partnership (whether general, limited, limited liability or joint venture); (c) member in a
limited liability company; or (d) other Person having any other form of equity security or
ownership interest.
ERISA: the Employee Retirement Income Security Act of 1974.
ERISA Affiliate: any trade or business (whether or not incorporated) under common
control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event: (a) a Reportable Event with respect to a Pension Plan; (b) withdrawal of
an Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) complete or partial withdrawal by an Obligor or ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) filing of a notice of intent to
terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the institution of proceedings by the PBGC to terminate a Pension Plan;
(e) determination that any Pension Plan is considered an at-risk plan or a plan in critical or
endangered status under the Code or ERISA; (f) an event or condition that constitutes grounds under
Section 4042 of ERISA for termination of, or appointment of a trustee to administer, any Pension
Plan; (g) imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon any Obligor or ERISA Affiliate; or (h) failure by
an Obligor or ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules
in respect of a Pension Plan, whether or not waived, or to make a required contribution to a
Multiemployer Plan.
Event of Default: as defined in Section 11.1.
Excluded Accounts: any of the following (i) accounts exclusively used in the Ordinary
Course of Business for payroll, payroll taxes, employee wages or employee benefits, (ii) accounts
containing not more than $2,000,000 in the aggregate at any time, (iii) Retail Deposit Accounts, or
(iv) accounts maintained with Bank of America that are used in the Ordinary Course of Business
solely for disbursement activities.
Excluded Assets: as defined in Section 7.1.
Excluded Swap Obligation: with respect to an Obligor, each Swap Obligation as to
which, and only to the extent that, such Obligors guaranty of or grant of a Lien as security for
such Swap Obligation is or becomes illegal under the Commodity Exchange Act because the Obligor
does not constitute an eligible contract participant as defined in the act (determined after
giving effect to any keepwell, support or other agreement for the benefit of such Obligor and all
guarantees of Swap Obligations by other Obligors) when such guaranty or grant of Lien becomes
effective with respect to the Swap Obligation. If a Hedging Agreement governs more than one Swap
Obligation, only the Swap Obligation(s) or portions thereof described in the foregoing sentence
shall be Excluded Swap Obligation(s) for the applicable Obligor.
Excluded Taxes: Any of the following Taxes imposed on or with respect to a Recipient
or required to be withheld or deducted from a payment to a Recipient (a) Taxes imposed on or
measured by a Recipients net income (however denominated), franchise Taxes and branch profits
Taxes (i) imposed as a result of such Recipient being organized under the laws of, or having its
principal office or applicable Lending Office located in, the jurisdiction imposing such Tax (or
any political subdivision thereof), or (ii) constituting Other Connection Taxes; (b) U.S. federal
withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to its
interest in a Loan or Commitment pursuant to a law in effect when the Lender acquires such interest
(except pursuant to an assignment request by Borrower Agent under Section 13.4) or changes its
Lending Office, unless the Taxes were payable to its assignor immediately prior to such assignment
or to the Lender immediately prior to its change in Lending Office; (c) Taxes attributable to a
Recipients failure to comply with Section 5.10; and (d) U.S. federal withholding Taxes imposed
pursuant to FATCA.
Existing Letters of Credit: the Letters of Credit set forth on Schedule 2.3.1.
Extraordinary Expenses: all reasonable costs, expenses or advances that Agent may
incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of
an Obligor, including those relating to (a) any audit, inspection, repossession, storage, repair,
appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other
preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding
(whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors
of an Obligor or any other Person) in any way relating to any Collateral (including the validity,
perfection, priority or avoidability of Agents Liens with respect to any Collateral), Loan
Documents, Letters of Credit or Obligations, including any lender liability or other Claims;
(c) the exercise, protection or enforcement of any rights or remedies of Agent in, or the
monitoring of, any Insolvency Proceeding with respect to an Obligor or Affiliate of an Obligor;
(d) settlement or satisfaction of taxes, charges or Liens with respect to any Collateral; (e) any
Enforcement Action; and (f) negotiation and documentation of any modification, waiver, workout,
restructuring or forbearance with respect to any Loan Documents or Obligations. Such reasonable
costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs,
permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers and
auctioneers fees and commissions, accountants fees, environmental study fees, wages and salaries
paid to employees of any Obligor or independent contractors in liquidating any Collateral, and
travel expenses.
FATCA: Sections 1471 through 1474 of the Code as of the date hereof (or any amended or
successor version if substantively comparable and not materially more onerous to comply with), and
any agreements entered into pursuant to Section 1471(b)(1) of the Code.
Federal Funds Rate: (a) the weighted average of interest rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers on
the applicable Business Day (or on the preceding Business Day, if the applicable day is not a
Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or
(b) if no such rate is published on the next Business Day, the average rate (rounded up, if
necessary, to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such
transactions, as determined by Agent; provided, if the Federal Funds Rate as determined
above is less than 0.0% per annum, then the Federal Funds Rate shall be deemed to be 0.0% per
annum.
Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal
Year.
Fiscal Year: the fiscal year of Borrowers and Subsidiaries for accounting and tax
purposes, ending on December 31 of each year.
Fixed Charge Coverage Ratio: the ratio, determined for Skechers on a Consolidated
Basis for the most recent 12 months, of (a) EBITDA minus Capital Expenditures made (except
those financed with Debt other than Revolver Loans) and cash taxes paid, to (b) Fixed Charges.
Fixed Charges: the sum of interest expense (other than payment-in-kind) paid in cash,
scheduled principal payments made on Debt, and Distributions made (other than Distributions made
in-kind and excluding, for the avoidance of doubt, any Upstream Payments).
FLSA: the Fair Labor Standards Act of 1938.
Foreign Lender: any Lender that is not a U.S. Person.
Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed
to by any Obligor or Subsidiary that is not subject to the laws of the United States; or
(b) mandated by a government other than the United States for employees of any Obligor or
Subsidiary.
Foreign Subsidiary: any Subsidiary that is not organized or incorporated in the United
States or any State or territory thereof.
Fronting Exposure: a Defaulting Lenders interest in LC Obligations, Swingline Loans
and Protective Advances, except to the extent Cash Collateralized by the Defaulting Lender or
allocated to other Lenders hereunder.
Full Payment or Full Payment of the Obligations: with respect to any
Obligations, (a) the full and indefeasible cash payment of all Obligations that are due and
payable, including any interest, fees and other charges accruing during an Insolvency Proceeding or
that would have accrued but for the commencement of any Insolvency Proceeding (whether or not
allowed in the proceeding), (b) if such Obligations are LC Obligations, Cash Collateralization
thereof (or delivery of a standby letter of credit acceptable to Agent in its Permitted Discretion,
in the amount of required Cash Collateral), and (c) if such Obligations are inchoate or contingent
in nature (other than LC Obligations) and a claim has been asserted with respect thereto, Cash
Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent in its
Permitted Discretion, in the amount required Cash Collateral). No Loans shall be deemed to have
been paid in full unless all Commitments related to such Loans have terminated.
GAAP: generally accepted accounting principles in effect in the United States from
time to time.
Governmental Approvals: all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and required reports to, all Governmental
Authorities.
Governmental Authority: any federal, state, local, foreign or other agency, authority,
body, commission, court, instrumentality, political subdivision, central bank, or other entity or
officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions for any governmental, judicial, investigative, regulatory or self-regulatory authority
(including the Financial Conduct Authority, the Prudential Regulation Authority and any
supra-national bodies such as the European Union or European Central Bank).
Guarantors: Savvas Cafe, Inc., BrandBlack, LLC and each other Person that guarantees
payment or performance of Obligations.
Guaranty: each guaranty agreement executed by a Guarantor in favor of Agent, including
pursuant to Section 5.11 of this Agreement.
Hedging Agreement: a swap agreement as defined in Section 101(53B)(A) of the
Bankruptcy Code.
HF Logistics: means HF Logistics I, LLC, a Delaware limited liability company.
Immaterial Subsidiary: means any non-operating Subsidiary of the Obligors that holds
or owns assets with an aggregate net book value of $1,000,000 or less; and Immaterial
Subsidiaries means all of them; provided, however, that if any Subsidiary that
previously constituted an Immaterial Subsidiary ever either (a) holds or owns assets with an
aggregate net book value of greater than $1,000,000 or (b) becomes an operating Subsidiary, then
such Subsidiary shall immediately and automatically cease to be an Immaterial Subsidiary and the
Borrowers shall be required to comply with the provisions of Section 10.1.9 of this Agreement with
respect to such Subsidiary.
Incur: to issue, create, assume, guarantee, incur or otherwise become liable for; the
terms Incurred and Incurrence have meanings correlative to the foregoing.
Indemnified Taxes: (a) Taxes, other than Excluded Taxes, imposed on or relating to any
payment of an Obligation; and (b) to the extent not otherwise described in clause (a), Other Taxes.
Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank
of America Indemnitees.
Insolvency Event: any case or proceeding commenced by or against any Obligor under any
state, federal or foreign law for, or any agreement of such Obligor to, (a) the entry of an order
for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment
law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other
custodian for such Obligor or any substantial part of its Property; or (c) an assignment or trust
mortgage for such Obligor or any substantial part of its Property for the benefit of creditors.
Insolvency Proceeding: any case or proceeding commenced by or against a Person under
any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an
order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt
adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator
or other custodian for such Person or any part of its Property; or (c) an assignment or trust
mortgage for such Person or any part of its Property for the benefit of creditors.
Intellectual Property: all intellectual and similar Property of a Person, including
inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets,
confidential or proprietary information, customer lists, know-how, software and databases; all
embodiments or fixations thereof and all related documentation, applications, registrations and
franchises; all licenses or other rights to use any of the foregoing; and all books and records
relating to the foregoing.
Intellectual Property Claim: any claim or assertion (whether in writing, by suit or
otherwise) that any Borrower or any Subsidiarys ownership, use, marketing, sale or distribution of
any Inventory, Equipment, Intellectual Property or other Property violates another Persons
Intellectual Property.
Interest Period: as defined in Section 3.1.3.
Inventory: as defined in the UCC, including all goods intended for sale, lease,
display or demonstration; all work in process; and all raw materials, and other materials and
supplies of any kind that are or could be used in connection with the manufacture, printing,
packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or
consumed in a Borrowers business (but excluding Equipment).
Inventory Formula Amount: the sum of (a) the lesser of (i) 75% of the aggregate Value
of Eligible Inventory consisting of Inventory to be sold at wholesale and (ii) 85% of the NOLV
Percentage of the aggregate Value of Eligible Inventory consisting of Inventory to be sold at
wholesale, plus (b) the lesser of (i) 75% of the aggregate Value of Eligible Inventory consisting
of Inventory to be sold at retail and (ii) 85% of the NOLV Percentage of the aggregate Value of
Eligible Inventory consisting of Inventory to be sold at retail, plus (c) the lesser of (i) 75% of
the aggregate Value of Eligible In-Transit Inventory and (ii) 85% of the NOLV Percentage of the
aggregate Value of Eligible In-Transit Inventory.
Inventory Reserve: reserves established by Agent in its Permitted Discretion to
reflect factors that may negatively impact the Value of Inventory, including change in salability,
obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or mix, duties,
freight, markdowns and vendor chargebacks.
Investment: an Acquisition, an acquisition of record or beneficial ownership of any
Equity Interests of a Person, or an advance or capital contribution to or other investment in a
Person.
Investment Property: the Investment Property (as such term is defined in the UCC) of
any Obligor, other than Excluded Assets.
IP Assignment: a collateral assignment or security agreement pursuant to which an
Obligor grants a Lien on its Intellectual Property to Agent, as security for its Obligations.
IRS: the United States Internal Revenue Service.
Issuers: all issuers of Investment Property or Pledged Equity.
Issuing Bank: Bank of America (including any Lending Office of Bank of America), or
any replacement issuer appointed pursuant to Section 2.3.4.
Issuing Bank Indemnitees: Issuing Bank and its officers, directors, employees,
Affiliates, agents and attorneys.
Landlord Lien Retail Location: those leased retail store locations where any Inventory
of any Obligor is located and either (i) such location is located in Washington, Pennsylvania,
Virginia and any other state or other jurisdiction in which a landlords claim for rent is entitled
to priority over Agents Lien on any of the Collateral, or (ii) the landlord with respect to such
location otherwise has a perfected contractual Lien on any Collateral that is entitled to priority
over Agents Lien on any of the Collateral.
LC Application: an application by a Borrower Agent to Issuing Bank for issuance of a
Letter of Credit, in form and substance reasonably satisfactory to Issuing Bank and Agent.
LC Conditions: the following conditions necessary for issuance of a Letter of Credit:
(a) each of the conditions set forth in Section 6.2 (or in the case of a Letter of Credit to be
issued on the Closing Date, Sections 6.1 and 6.2); (b) after giving effect to such issuance, total
LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and Revolver Usage
does not exceed the Borrowing Base; (c) the Letter of Credit and payments thereunder are
denominated in Dollars or other currency satisfactory to Agent and Issuing Bank; and (d) the
purpose and form of the proposed Letter of Credit are satisfactory to Agent and Issuing Bank in
their reasonable discretion.
LC Documents: all documents, instruments and agreements (including LC Requests and LC
Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in connection
with any Letter of Credit.
LC Obligations: the sum (without duplication) of (a) all amounts owing by Borrowers
for drawings under Letters of Credit; and (b) the Stated Amount of all outstanding Letters of
Credit.
LC Request: a request for issuance of a Letter of Credit, to be provided by Borrower
Agent to Issuing Bank, in form reasonably satisfactory to Agent and Issuing Bank.
Lender Indemnitees: Lenders and Secured Bank Product Providers, and their officers,
directors, employees, Affiliates, agents and attorneys.
Lenders: lenders party to this Agreement (including Agent in its capacity as provider
of Swingline Loans) and any Person who hereafter becomes a Lender pursuant to an Assignment,
including any Lending Office of the foregoing.
Lending Office: the office (including any domestic or foreign Affiliate or
branch) designated as such by a Lender or Issuing Bank by notice to Agent and Borrower Agent.
Letter of Credit: any standby or documentary letter of credit, foreign guaranty,
documentary bankers acceptance or similar instrument issued by Issuing Bank for the account or
benefit of any Borrower or Affiliate of a Borrower, including the Existing Letters of Credit.
Letter of Credit Subline: $100,000,000.00.
LIBOR: the per annum rate of interest (rounded up to the nearest 1/8th of 1% and in no
event less than zero) determined by Agent at or about 11:00 a.m. (London time) two Business Days
prior to an Interest Period, for a term equivalent to such period, equal to the London Interbank
Offered Rate, or comparable or successor rate approved by Agent, as published on the applicable
Reuters screen page (or other commercially available source designated by Agent from time to time);
provided, that any comparable or successor rate shall be applied by Agent, if
administratively feasible, in a manner consistent with market practice. Notwithstanding the
foregoing, if LIBOR as determined above is less than 0.0% per annum, then LIBOR shall be deemed to
be 0.0% per annum.
LIBOR Loan: each set of LIBOR Revolver Loans having a common length and commencement
of Interest Period.
LIBOR Revolver Loan: a Revolver Loan that bears interest based on LIBOR.
License: any license or agreement under which an Obligor is authorized to use
Intellectual Property in connection with any manufacture, marketing, distribution or disposition of
Collateral, any use of Property or any other conduct of its business.
Licensor: any Person from whom an Obligor obtains the right to use any Intellectual
Property.
Lien: any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit
arrangement, encumbrance, lien (statutory or other), security interest, statutory trust,
reservation of title, or other security arrangement and any other preference, priority or
preferential arrangement of any kind or nature whatsoever, including any conditional sale contract
or other title retention agreement, the interest of a lessor under a Capital Lease and any
synthetic or financing lease having substantially the same economic effect as any of the foregoing.
Lien Waiver: an agreement, in form and substance satisfactory to Agent in its
Permitted Discretion, by which (a) for any Collateral located on leased or mortgaged premises, the
lessor or mortgagee waives or subordinates any Lien it may have on the Collateral, and agrees to
permit Agent to enter upon the premises and remove the Collateral or to use the premises to store
or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper,
customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the
Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for
Agent, and agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a
repairman, mechanic or bailee, such Person acknowledges Agents Lien, waives or subordinates any
Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and
(d) for any Collateral subject to a Licensors Intellectual Property rights, the Licensor grants to
Agent the right, vis-à-vis such Licensor, to enforce Agents Liens with respect to the Collateral,
including the right to dispose of it with the benefit of the Intellectual Property, whether or not
a default exists under any applicable License.
Loan: a Revolver Loan.
Loan Documents: this Agreement, Other Agreements and Security Documents.
Loan Year: each 12 month period commencing on the Closing Date and on each anniversary
of the Closing Date.
Majority Voting Equity Interests: Equity Interests representing greater than 51% of
the Equity Interests of Skechers having the right to vote for the election of members of the Board
of Directors.
Margin Stock: as defined in Regulation U of the Board of Governors.
Master Intercompany Subordinated Note: that certain Master Intercompany Subordinated
Note, dated as of the Closing Date, made by the Obligors and certain of their Subsidiaries, as
amended, restated, supplemented or otherwise modified from time to time in accordance with this
Agreement.
Material Adverse Effect: (a) a material adverse effect on the business, operations,
Properties, prospects or condition (financial or otherwise) of Obligors (taken as a whole) or of
Skechers and its Subsidiaries (taken as a whole), on the value of any material Collateral, or on
the enforceability of any Loan Documents; (b) a material impairment of Skechers and its
Subsidiaries ability to perform their obligations under the Loan Documents to which they are
parties or of Agents ability to enforce the Obligations or realize upon the Collateral, or (c) a
material impairment of the enforceability or priority of Agents Liens with respect to the
Collateral (in each case with respect to clause (c), other than as a result of an action taken by
the Agent or an action not taken that is solely in the control of Agent).
Material Contract: any agreement or arrangement to which any Obligor or any Subsidiary
is party (other than the Loan Documents) (a) that is deemed to be a material contract under any
securities law applicable to such Person, including the Securities Act; (b) for which breach,
termination, nonperformance or failure to renew could reasonably be expected to have a Material
Adverse Effect; or (c) that relates to Debt (including Subordinated Debt) in an aggregate amount of
$25,000,000 or more.
Moodys: Moodys Investors Service, Inc., and its successors.
Multiemployer Plan: any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which an Obligor or ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.
Net Proceeds: with respect to an Asset Disposition of Collateral, proceeds (including,
when received, any deferred or escrowed payments) received by any Borrower or Subsidiary in cash
from such disposition, net of (a) reasonable and customary costs and expenses actually incurred in
connection therewith, including legal fees and sales commissions; (b) amounts applied to repayment
of Debt secured by a Permitted Lien senior to Agents Liens on Collateral sold; (c) transfer or
similar taxes; and (d) reserves for indemnities, until such reserves are no longer needed.
NOLV Percentage: the net orderly liquidation value of Inventory, expressed as a
percentage, expected to be realized at an orderly, negotiated sale held within a reasonable period
of time, net of all liquidation expenses, as determined from the most recent appraisal of
Borrowers Inventory performed by an appraiser and on terms reasonably satisfactory to Agent.
Notice of Borrowing: a request by Borrower Agent of a Borrowing of Revolver Loans, in
form reasonably satisfactory to Agent.
Notice of Conversion/Continuation: a request by Borrower Agent of a conversion or
continuation of any Loans as LIBOR Loans, in form reasonably satisfactory to Agent.
Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC
Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest,
expenses, fees, indemnification obligations, Extraordinary Expenses and other amounts payable by
Obligors under Loan Documents, (d) Secured Bank Product Obligations, and (e) other Debts,
obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, whether
now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in
any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of
credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect,
absolute or contingent, due or to become due, primary or secondary, or joint or several;
provided, that Obligations of an Obligor shall not include its Excluded Swap Obligations.
Obligor: each Borrower or Guarantor.
OFAC: Office of Foreign Assets Control of the U.S. Treasury Department.
Ordinary Course of Business: the ordinary course of business of any Borrower or
Subsidiary, undertaken in good faith and consistent with Applicable Law and past practices.
Organic Documents: with respect to any Person, its charter, certificate or articles of
incorporation, bylaws, certificate or articles of organization or formation, limited liability
agreement, operating agreement, members agreement, shareholders agreement, partnership agreement,
certificate of partnership, certificate of formation, voting trust agreement, or similar agreement
or instrument governing the formation or operation of such Person.
OSHA: the Occupational Safety and Hazard Act of 1970.
Other Agreement: the Master Intercompany Subordinated Note and each LC Document, fee
letter, Lien Waiver, Borrowing Base Report, Compliance Certificate, Borrower Materials, or other
note, document, instrument or agreement (other than this Agreement or a Security Document) now or
hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any
transactions relating hereto.
Other Connection Taxes: Taxes imposed on a Recipient due to a present or former
connection between it and the taxing jurisdiction (other than connections arising from the
Recipient having executed, delivered, become party to, performed obligations or received payments
under, received or perfected a Lien or engaged in any other transaction pursuant to, enforced, or
sold or assigned an interest in, any Loan or Loan Document).
Other Taxes: all present or future stamp, court, documentary, intangible, recording,
filing or similar Taxes that arise from any payment made under, from the execution, delivery,
performance, enforcement or registration of, from the receipt or perfection of a Lien under, or
otherwise with respect to, any Loan Document, except Other Connection Taxes imposed with respect to
an assignment (other than an assignment made pursuant to Section 13.4(c)).
Overadvance: as defined in Section 2.1.5.
Overadvance Loan: a Base Rate Revolver Loan made when an Overadvance exists or is
caused by the funding thereof.
Participant: as defined in Section 13.2.
Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
Payment Item: each check, draft or other item of payment payable to a Borrower,
including those constituting proceeds of any Collateral.
PBGC: the Pension Benefit Guaranty Corporation.
Pension Funding Rules: Code and ERISA rules regarding minimum required contributions
(including installment payments) to Pension Plans set forth in, for plan years ending prior to the
Pension Protection Act of 2006 effective date, Section 412 of the Code and Section 302 of ERISA,
both as in effect prior to such act, and thereafter, Sections 412, 430, 431, 432 and 436 of the
Code and Sections 302, 303, 304 and 305 of ERISA.
Pension Plan: any employee pension benefit plan (as defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by an Obligor or ERISA Affiliate or to which the Obligor or ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or other plan described
in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan
years.
Permitted Acquisition: any Acquisition (other than any transaction permitted by
Section 10.2.9(a) (which do not need to meet the requirements of this definition in order to be
permitted)) consummated if (a)(i) both immediately before and immediately after giving pro forma
effect to such Acquisition, Availability is greater than 10.0% of all Revolver Commitments and no
Default or Event of Default exists or is caused thereby, (ii) the Acquisition is consensual;
(iii) the assets, business or Person being acquired is useful or engaged in the business of
Borrowers and Subsidiaries or any business materially related or incidental thereto; (iv) no Debt
is assumed other than Permitted Debt and no Liens are assumed other than Permitted Liens;
provided that such Permitted Liens do not attach to Accounts, Inventory, Deposit Accounts
or Securities Accounts of any Obligor (or any proceeds of the foregoing) without the prior written
consent of Agent and Required Lenders in their sole discretion, (v) either (A) the Fixed Charge
Coverage Ratio, determined on a pro forma basis immediately after giving pro forma effect to such
Acquisition (as if such Acquisition were made on the last day of the most recently ended period for
which financial statements have been delivered pursuant to Section 10.1.2), is greater than 1.0 to
1.0, or (B) at all times during each of the 30 consecutive days preceding such Acquisition,
Availability (determined on a pro forma basis as if such Acquisition were made at the start of such
30-day period) has been greater than 17.5% of all Revolver Commitments, and (vi) Borrowers deliver
to Agent, at least 10 Business Days prior to such Acquisition, copies of all material agreements
relating thereto and a certificate, in form and substance reasonably satisfactory to Agent and
signed by a Senior Officer, stating that the Acquisition is a Permitted Acquisition and
demonstrating compliance with the foregoing requirements, or (b) approved in writing by Agent and
Required Lenders in their sole discretion.
Permitted Asset Disposition: an Asset Disposition that is (a) a sale of Inventory in
the Ordinary Course of Business; (b) a disposition of Equipment that, in the aggregate during any
12 month period, has a fair market or book value (whichever is more) of $5,000,000 or less; (c) a
disposition of Inventory that is obsolete, unmerchantable or otherwise unsalable in the Ordinary
Course of Business; (d) termination of a lease of real or personal Property that is not necessary
for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse
Effect and does not result from an Obligors default; (e) the licensing (i) on a non-exclusive
basis, of patents, trademarks, copyrights, and other intellectual property rights in the Ordinary
Course of Business or (ii) on an exclusive basis, of patents, trademarks, copyrights, and other
intellectual property rights in the Ordinary Course of Business so long as either (A) the patents,
trademarks, copyrights, and other intellectual property subject to such exclusive license are not
owned by an Obligor or, if owned by an Obligor, the territory with respect to which the exclusive
license is granted does not include the United States or a territory within the United States, or
(B) such exclusive license does not grant a right to use such patents, trademarks, copyrights, and
other intellectual property rights in connection with the manufacture, design, distribution or sale
of footwear of any kind; (f) a use or transfer of money or Cash Equivalents in a manner that is not
prohibited by the terms of this Agreement or the other Loan Documents, including, in any event,
forfeiture of deposits in connection with proposed acquisitions that are not consummated; (g) a
granting of Permitted Liens; (h) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, a sale or discount, in each case without recourse, of
Accounts arising in the Ordinary Course of Business, but only in connection with the compromise or
collection thereof; (i) any involuntary loss, damage or destruction of property; (j) any
involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, or confiscation or requisition of use of property; (k) a leasing (or subleasing) in the
Ordinary Course of Business of Real Estate owned (or leased) by Skechers or its Subsidiaries, so
long as the same do not materially impede the Ordinary Course of Business of Skechers or its
Subsidiaries; (l) a sale, issuance or split of Equity Interests (other than Prohibited Preferred
Stock) of Skechers; (m) a making of an Investment other than a Restricted Investment; (n) a payment
of Distributions but only to the extent that they are permitted pursuant to Section 10.2.4; (o) a
termination of contracts, licenses, leases or subleases in the Ordinary Course of Business to the
extent that they are not economically desirable in the conduct of the Obligors business (taken as
a whole) and so long as the termination thereof is not materially adverse to the interests of the
Lenders; (p) a closing of retail stores and dispositions of Inventory or Equipment in connection
therewith, so long as, if after giving effect to any proposed closure of a retail store by any
Obligor or any series of related retail store closures by any of the Obligors, the aggregate amount
of retail stores closed by the Obligors in the immediately preceding twelve month period would
equal or exceed twenty (20) retail stores, then the Borrowers shall provide Agent with not less
than 45 Business Days prior written notice before conducting such retail store closure or series of
related retail store closures; (q) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, any disposition of Real Estate, (r) a conveyance, sale,
lease, license, assignment, transfer, or other disposition of patents, trademarks, copyrights or
other intellectual property of Skechers or its Subsidiaries (including in connection with the
settlement or other resolution of claims, disputes, litigation, arbitration, or other adverse
proceedings) to the extent not necessary in the conduct of Skechers and its Subsidiaries
business, taken as a whole; (s) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, a sale of all of the Equity Interests of the Skechers/HF JV
Entity held by Skechers RB to HF Logistics pursuant to the buy-sell provisions of Article 8 of the
Skechers/HF JV LLC Agreement (as in effect on the date hereof); (t) a disposition of all of the
Equity Interests of the Skechers/HF JV Entity held by Skechers RB in connection with the
dissolution and windup of the Skechers/HF JV Entity pursuant to Section 13.3 of the Skechers/HF JV
LLC Agreement (as in effect on the date hereof); (u) consummated where both immediately before and
immediately after giving pro forma effect thereto, Availability is greater than 15% of all Revolver
Commitments, and no Default or Event of Default has occurred and is continuing or would result
therefrom; or (v) approved in writing by Agent and Required Lenders; and provided that the
Net Proceeds of any Asset Disposition of Property that constitutes Collateral are remitted to an
account that is subject to a Deposit Account Control Agreement, which account must be a Dominion
Account (or a lockbox relating to a Dominion Account) to the extent such Net Proceeds are received
during a Dominion Period.
Permitted Contingent Obligations: Contingent Obligations (a) arising from endorsements
of Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from
Hedging Agreements permitted hereunder; (c) existing on the Closing Date, and any extension or
renewal thereof that does not increase the amount of such Contingent Obligation when extended or
renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal,
performance, statutory or bid bonds, or other similar obligations; (e) arising from customary
indemnification obligations in favor of purchasers in connection with dispositions of Property
permitted hereunder; (f) arising under the Loan Documents; or (g) in an aggregate amount of
$5,000,000 or less at any time.
Permitted Debt: as defined in Section 10.2.1.
Permitted Discretion: a determination made in the exercise, in good faith, of
reasonable business judgment (from the perspective of a secured, asset-based lender).
Permitted Holder: the Persons identified on Schedule P-1.
Permitted Lien: as defined in Section 10.2.2.
Permitted Purchase Money Debt: Purchase Money Debt of Borrowers and Subsidiaries that
is unsecured or secured only by a Purchase Money Lien, as long as the aggregate principal amount
does not exceed $25,000,000 at any time.
Person: any individual, corporation, limited liability company, partnership, joint
venture, association, trust, unincorporated organization, Governmental Authority or other entity.
Plan: an employee benefit plan (as defined in Section 3(3) of ERISA) maintained for
employees of an Obligor or ERISA Affiliate, or to which an Obligor or ERISA Affiliate is required
to contribute on behalf of its employees.
Platform: as defined in Section 14.3.3.
Pledged Equity: except to the extent any of the following would constitute Excluded
Assets, the Equity Interests listed on Schedule 7.3, together with any other Equity Interests,
certificates, options or rights of any nature whatsoever in respect of the Equity Interests of any
Person that may be issued or granted to, or held by, any Obligor while this Agreement is in effect.
Preferred Stock: as applied to the Equity Interests of any Person, the Equity
Interests of any class or classes (however designated) that is preferred with respect to the
payment of dividends, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over shares of Equity Interests of any other class of
such Person.
Prime Rate: the rate of interest publicly announced by Bank of America from time to
time as its prime rate. Such rate is set by Bank of America on the basis of various factors,
including its costs and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above or below such rate. Any
change in such rate publicly announced by Bank of America shall take effect at the opening of
business on the day specified in the announcement.
Pro Rata: with respect to any Lender, a percentage (rounded to the ninth decimal
place) determined (a) by dividing the amount of such Lenders Revolver Commitment by the aggregate
outstanding Revolver Commitments; or (b) following termination of the Revolver Commitments, by
dividing the amount of such Lenders Loans and LC Obligations by the aggregate outstanding Loans
and LC Obligations or, if all Loans and LC Obligations have been paid in full and/or Cash
Collateralized, by dividing such Lenders and its Affiliates remaining Obligations by the
aggregate remaining Obligations.
Prohibited Preferred Stock: any Preferred Stock that by its terms is mandatorily
redeemable or subject to any other payment obligation (including any obligation to pay dividends,
other than dividends of shares of Preferred Stock of the same class and series payable in kind or
dividends of shares of common stock) on or before a date that is less than one year after the
Revolver Termination Date, or, on or before the date that is less than one year after the Revolver
Termination Date, is redeemable at the option of the holder thereof for cash or assets or
securities (other than distributions in kind of shares of Preferred Stock of the same class and
series or of shares of common stock).
Properly Contested: with respect to any obligation of an Obligor, (a) the obligation
is subject to a bona fide dispute regarding amount or the Obligors liability to pay; (b) the
obligation is being properly contested in good faith by appropriate proceedings promptly instituted
and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP;
(d) non-payment could not have a Material Adverse Effect; (e) no Lien is imposed on assets of the
Obligor, unless bonded and stayed to the satisfaction of Agent in its Permitted Discretion; and
(f) if the obligation results from entry of a judgment or other order, there is not a period of
more than 30 consecutive days during which a stay of such judgment or order pending appeal or other
judicial review is not in effect.
Property: any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.
Protective Advances: as defined in Section 2.1.6.
Purchase Money Debt: (a) Debt (other than the Obligations) for payment of any of the
purchase price of Equipment or other fixed assets; (b) Debt (other than the Obligations) incurred
within 30 days before or after acquisition of any Equipment or other fixed assets, for the purpose
of financing any of the purchase price or cost thereof; and (c) any renewals, extensions or
refinancings (but not increases) thereof.
Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the
Equipment or other fixed assets acquired or leased with such Debt, all parts, attachments,
accessories, accessions, substitutions or replacements thereto and the proceeds thereof and
constituting a Capital Lease or a purchase money security interest under the UCC.
Qualified ECP: an Obligor with total assets exceeding $10,000,000, or that constitutes
an eligible contract participant under the Commodity Exchange Act and can cause another Person to
qualify as an eligible contract participant under Section 1a(18)(A)(v)(II) of such act.
RCRA: the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).
Real Estate: all right, title and interest (whether as owner, lessor or lessee) in any
real Property or any buildings, structures, parking areas or other improvements thereon.
Real Estate Holding Subsidiary: means a Subsidiary of Skechers which does not own any
property or assets other than (i) Real Estate and other assets necessary in connection with the
ownership of such Real Estate or (ii) Equity Interests in an Affiliate or joint venture which does
not own any Property or assets other than Real Estate and other assets necessary in connection with
the ownership of such Real Estate, including each of the Subsidiaries identified on Schedule
9.1.4(a) as a real estate holding company.
Recipient: Agent, Issuing Bank, any Lender or any other recipient of a payment to be
made by an Obligor under a Loan Document or on account of an Obligation.
Refinancing Conditions: the following conditions for Refinancing Debt: (a) it is in
an aggregate principal amount that does not exceed the principal amount of the Debt being extended,
renewed or refinanced; (b) it has a final maturity no sooner than, and a weighted average life no
less than the Debt being extended, renewed or refinanced and the interest rate and fees payable
with respect thereto are on market terms at the time of such Refinancing; (c) it is subordinated to
the Obligations at least to the same extent as the Debt being extended, renewed or refinanced;
(d) the representations, covenants and defaults applicable to it, taken as a whole, are no less
favorable to Borrowers than those applicable to the Debt being extended, renewed or refinanced;
(e) no additional Lien is granted to secure it; (f) no additional Person is obligated on such Debt;
and (g) upon giving effect to it, no Default or Event of Default exists.
Refinancing Debt: Debt that is the result of an extension, renewal or refinancing of
Debt permitted under Sections 10.2.1(b), (c), (d), (f) or (q).
Reimbursement Date: as defined in Section 2.3.2.
Rents and Charges Reserve: the aggregate of (a) all past due rent, payments and other
amounts owing by an Obligor (or any Affiliate of Skechers that owns any Real Estate subject to a
mortgage) to any mortgagee, landlord, warehouseman, processor, repairman, mechanic, shipper,
freight forwarder, broker or other Person who possesses any Collateral or leases to such Obligor a
location where any Collateral is stored, and (b) with respect to Landlord Lien Retail Locations and
locations where Collateral is located (other than retail store locations), a reserve not to exceed
three months rent, payments and other charges that would be payable to any such Person, unless
(i) a Lien Waiver has been delivered with respect to such location or (ii) with respect to Landlord
Lien Retail Locations, Agent determines in its discretion not to impose such reserve.
Report: as defined in Section 12.2.3.
Reportable Event: any event set forth in Section 4043(c) of ERISA, other than an event
for which the 30 day notice period has been waived.
Required Lenders: two or more unaffiliated Secured Parties holding more than 50% of
(a) the aggregate outstanding Revolver Commitments; or (b) following termination of the Revolver
Commitments, the aggregate outstanding Loans and LC Obligations or, if all Loans and LC Obligations
have been paid in full, the aggregate remaining Obligations; provided, however,
that Commitments, Loans and other Obligations held by a Defaulting Lender and its Affiliates shall
be disregarded in making such calculation, but any related Fronting Exposure shall be deemed held
as a Loan or LC Obligation by the Secured Party that funded the applicable Loan or issued the
applicable Letter of Credit.
Restricted Investment: any Investment by an Obligor, other than (a) Investments in
Subsidiaries to the extent existing on the Closing Date; (b) cash and Cash Equivalents maintained
in accordance with Section 8.5; (c) loans and advances permitted under Section 10.2.7;
(d) Permitted Acquisitions; (e) Investments described on Schedule 10.2.5 hereto outstanding on the
Closing Date; (f) Investments permitted by Section 10.2.9(a); (g) Investments in negotiable
instruments deposited or to be deposited for collection in the Ordinary Course of Business;
(h) deposits on, and advance payments in respect of the purchase price for, purchases of goods or
services in the Ordinary Course of Business; (i) Investments received in settlement or satisfaction
of amounts due to any Obligor or any of its Subsidiaries effected in the Ordinary Course of
Business or owing to any Obligor or any of its Subsidiaries as a result of Insolvency Proceedings
involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of an
Obligor or its Subsidiaries; (j) Investments which constitute Permitted Debt; (k) deposits of cash
made in the Ordinary Course of Business to secure performance of operating leases; and (l) any
other Investment made if (i) both immediately before and immediately after giving pro forma effect
to such Investment, Availability is greater than 10.0% of all Revolver Commitments and no Default
or Event of Default exists or is caused thereby, and (ii) either (x) the Fixed Charge Coverage
Ratio, determined on a pro forma basis immediately after giving pro forma effect to such Investment
(as if such Investment were made on the last day of the most recently ended period for which
financial statements have been delivered pursuant to Section 10.1.2), is greater than 1.0 to 1.0,
or (y) at all times during each of the 30 consecutive days preceding such Investment, Availability
(determined on a pro forma basis as if such Investment were made at the start of such 30-day
period) has been greater than 17.5% of all Revolver Commitments at all times.
Restrictive Agreement: an agreement (other than a Loan Document) that conditions or
restricts the right of any Borrower or other Obligor to incur or repay the Obligations, to grant
Liens on any Collateral, to declare or make Distributions or to modify, extend or renew any other
agreement evidencing Obligations.
Retail Deposit Accounts: accounts exclusively used by Borrowers retail stores for
the deposit of collections in the Ordinary Course of Business.
Revolver Commitment: for any Lender, its obligation to make Revolver Loans and to
participate in LC Obligations up to the maximum principal amount shown on Schedule 1.1, as
hereafter modified pursuant to Sections 2.1.4(b) or 2.1.7 or an Assignment to which it is a party.
Revolver Commitments means the aggregate amount of such commitments of all Lenders.
Revolver Loan: a loan made pursuant to Section 2.1, and any Swingline Loan,
Overadvance Loan or Protective Advance.
Revolver Termination Date: June 30, 2020.
Revolver Usage: (a) the aggregate amount of outstanding Revolver Loans; plus
(b) the aggregate Stated Amount of outstanding Letters of Credit, except to the extent Cash
Collateralized by Borrowers.
Royalties: all royalties, fees, expense reimbursement and other amounts payable by a
Borrower under a License.
S&P: Standard & Poors Financial Services LLC, a subsidiary of The McGraw-Hill
Companies, Inc., and any successor thereto.
Sanction: any sanction administered or enforced by the U.S. Government (including
OFAC), United Nations Security Council, European Union, Her Majestys Treasury or other sanctions
authority.
SEC: the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
Secured Bank Product Obligations: Debt, obligations and other liabilities with respect
to Bank Products owing by any Obligor or Subsidiary to a Secured Bank Product Provider;
provided, that Secured Bank Product Obligations of an Obligor shall not include its
Excluded Swap Obligations.
Secured Bank Product Provider: (a) Bank of America or any of its Affiliates; and
(b) any other Lender or Affiliate of a Lender that is providing a Bank Product, provided
such provider delivers written notice to Agent, in form and substance satisfactory to Agent, within
10 days following the later of the Closing Date or creation of the Bank Product, (i) describing the
Bank Product and setting forth the maximum amount to be secured by the Collateral and the
methodology to be used in calculating such amount, and (ii) agreeing to be bound by Section 12.13.
Secured Parties: Agent, Issuing Bank, Lenders and Secured Bank Product Providers.
Securities Account Control Agreement: a control agreement satisfactory to Agent in its
Permitted Discretion executed by an institution maintaining a Securities Account for an Obligor, to
perfect Agents Lien on such account.
Securities Act: the Securities Act of 1933, as in effect from time to time.
Securities Exchange Act: the Securities Exchange Act of 1934, as in effect from time
to time.
Security Documents: the Guaranties, IP Assignments, Deposit Account Control
Agreements, Securities Account Control Agreements, and all other documents, instruments and
agreements now or hereafter securing (or given with the intent to secure) any Obligations.
Senior Officer: the chairman of the board, president, chief executive officer or chief
financial officer of a Borrower or, if the context requires, an Obligor.
Settlement Report: a report summarizing Revolver Loans and participations in LC
Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in
accordance with their Revolver Commitments.
Skechers/HF JV Entity: means HF Logistics-SKX, LLC, a Delaware limited liability
company.
Skechers/HF JV LLC Agreement: means that certain Limited Liability Company Agreement
of HF Logistics-SKX, LLC, dated January 30, 2010, between Skechers RB and HF Logistics.
Skechers on a Consolidated Basis: the consolidation in accordance with GAAP of the
financial statements of Skechers, its Subsidiaries and each other Person (including variable
interest entities) consolidated therewith in accordance with GAAP.
Skechers RB: means Skechers R.B., LLC, a Delaware limited liability company.
Solvent: as to any Person, such Person (a) owns Property whose fair salable value (as
defined below) is greater than the amount required to pay all of its debts as they become due;
(b) owns Property whose present fair salable value (as defined below) is greater than the probable
total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of
such Person as they become absolute and matured; (c) is able to pay all of its debts as they
mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry
on its business and transactions and all business and transactions in which it is about to engage;
(e) is not insolvent within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has
not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or
otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual
intent to hinder, delay or defraud either present or future creditors of such Person or any of its
Affiliates. Fair salable value means the amount that could be obtained for assets within
a reasonable time, either through collection or through sale under ordinary selling conditions by a
capable and diligent seller to an interested buyer who is willing (but under no compulsion) to
purchase. For purposes of determining whether a Person is Solvent, the amount of any contingent
liability shall be computed as the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or
matured liability.
Specified Obligor: an Obligor that is not then an eligible contract participant
under the Commodity Exchange Act (determined prior to giving effect to Section 5.11).
Star Wars License: those certain Standard Terms and Conditions, dated November 1,
2014, by and between Disney Consumer Products, Inc. and Skechers USA, Inc., as amended by that
certain First Amendment to the Standard Terms and Conditions, dated November 1, 2014, and all
related documents and amendments, whereby Disney Consumer Products, Inc. grants to Skechers the
right to use various Star Wars trademarks on footwear, for wholesale and retail distribution in
various countries throughout the World.
Stated Amount: the outstanding undrawn amount of a Letter of Credit, including any
automatic increase or tolerance (whether or not then in effect) provided by the Letter of Credit or
related LC Documents.
Subordinated Debt: Debt that is expressly subordinate and junior in right of payment
to Full Payment of the Obligations, and is on terms (including maturity, interest, fees, repayment,
covenants and subordination) satisfactory to Agent in its Permitted Discretion.
Subsidiary: with respect to Skechers:
(a) any corporation, association or other business entity (other than a partnership, joint
venture, limited liability company or similar entity) of which more than 50% of the total voting
power of the Equity Interests entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders agreement that effectively transfers
voting power) to vote in the election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled, directly or indirectly, by
that person or one or more of the other Subsidiaries of Skechers (or a combination thereof); and
(b) any partnership, joint venture or limited liability company or similar entity of which
(i) more than 50% of the Equity Interests having voting power are owned or controlled, directly or
indirectly, by Skechers or one or more of the other Subsidiaries of Skechers or a combination
thereof, whether in the form of membership, general, special or limited partnership interests or
otherwise, and (ii) Skechers or any Subsidiary of Skechers is a controlling general partner or
equivalent.
Supermajority Lenders: two or more unaffiliated Secured Parties holding 66.66% or more
of (a) the aggregate outstanding Revolver Commitments; or (b) following termination of the Revolver
Commitments, the aggregate outstanding Loans and LC Obligations or, if all Loans and LC Obligations
have been paid in full, the aggregate remaining Obligations; provided, however,
that Commitments, Loans and other Obligations held by a Defaulting Lender and its Affiliates shall
be disregarded in making such calculation, but any related Fronting Exposure shall be deemed held
as a Loan or LC Obligation by the Secured Party that funded the applicable Loan or issued the
applicable Letter of Credit.
Swap Obligations: with respect to an Obligor, its obligations under a Hedging
Agreement that constitutes a swap within the meaning of Section 1a(47) of the Commodity Exchange
Act.
Swingline Loan: any Borrowing of Base Rate Revolver Loans funded with Agents funds,
until such Borrowing is settled among Lenders or repaid by Borrowers.
Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
Transferee: any actual or potential Eligible Assignee, Participant or other Person
acquiring an interest in any Obligations.
UCC: the Uniform Commercial Code as in effect in the State of New York or, when the
laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform
Commercial Code of such jurisdiction.
Unused Line Fee Rate: a per annum rate equal to 0.25%.
Upstream Payment: a Distribution by a Subsidiary of an Obligor to an Obligor or
another Subsidiary.
U.S. Person: United States Person as defined in Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate: as defined in Section 5.10.2(b)(iii).
Value: (a) for Inventory, its value determined on the basis of the lower of cost or
market, calculated on a first-in, first-out basis, and excluding any portion of cost attributable
to intercompany profit among Borrowers and their Affiliates; and (b) for an Account, its face
amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits,
allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by
the Account Debtor or any other Person.
1.2 Accounting Terms. Under the Loan Documents (except as otherwise specified therein),
all accounting terms shall be interpreted, all accounting determinations shall be made, and all
financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with
the most recent audited financial statements of Borrowers delivered to Agent before the Closing
Date and using the same inventory valuation method as used in such financial statements, except for
any change required or permitted by GAAP if Borrowers certified public accountants concur in such
change, the change is disclosed to Agent, and all relevant provisions of the Loan Documents are
amended in a manner satisfactory to Required Lenders to take into account the effects of the
change.
1.3 Uniform Commercial Code. As used herein, the following terms are defined in accordance
with the UCC in effect in the State of New York from time to time: Chattel Paper, Commercial
Tort Claim, Deposit Account, Document, Equipment, General Intangibles, Goods,
Instrument, Letter-of-Credit Right, Securities Account and Supporting Obligation.
1.4 Certain Matters of Construction. The terms herein, hereof, hereunder and other
words of similar import refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the
computation of periods of time from a specified date to a later specified date, from means from
and including, and to and until each mean to but excluding. The terms including and
include shall mean including, without limitation and, for purposes of each Loan Document, the
parties agree that the rule of ejusdem generis shall not be applicable to limit any provision.
Section titles appear as a matter of convenience only and shall not affect the interpretation of
any Loan Document. All references to (a) laws include all related regulations, interpretations,
supplements, amendments and successor provisions; (b) any document, instrument or agreement include
any amendments, waivers and other modifications, extensions or renewals (to the extent permitted by
the Loan Documents); (c) any section mean, unless the context otherwise requires, a section of this
Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and
schedules attached hereto, which are hereby incorporated by reference; (e) any Person include
successors and assigns; (f) time of day means Pacific time; or (g) discretion of Agent, Issuing
Bank or any Lender mean the sole and absolute discretion of such Person. All references to Value,
Borrowing Base components, Loans, Letters of Credit, Obligations and other amounts herein shall be
denominated in Dollars, unless expressly provided otherwise, and all determinations (including
calculations of Borrowing Base and financial covenants) made from time to time under the Loan
Documents shall be made in light of the circumstances existing at such time. Borrowing Base
calculations shall be consistent with historical methods of valuation and calculation, and
otherwise satisfactory to Agent in its Permitted Discretion (and not necessarily calculated in
accordance with GAAP). Borrowers shall have the burden of establishing any alleged negligence,
misconduct or lack of good faith by Agent, Issuing Bank or any Lender under any Loan Documents. No
provision of any Loan Documents shall be construed against any party by reason of such party
having, or being deemed to have, drafted the provision. Reference to a Borrowers knowledge or
similar concept means actual knowledge of a Senior Officer, or knowledge that a Senior Officer
would have obtained if he or she had engaged in good faith and diligent performance of his or her
duties, including reasonably specific inquiries of employees or agents and a good faith attempt to
ascertain the matter. Any Event of Default shall be deemed to be continuing until waived in
writing by the Required Lenders.
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SECTION 2. |
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CREDIT FACILITIES |
2.1 |
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Revolver Commitment |
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2.1.1 |
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Revolver Loans |
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Each Lender agrees, severally on a Pro Rata basis up to its Revolver Commitment, on the terms
set forth herein, to make Revolver Loans to Borrowers from time to time through the Commitment
Termination Date. The Revolver Loans may be repaid and reborrowed as provided herein. In no event
shall Lenders have any obligation to honor a request for a Revolver Loan if Revolver Usage at such
time plus the requested Loan would exceed the Borrowing Base.
Loans and interest accruing thereon shall be evidenced by the records of Agent and the
applicable Lender. At the request of a Lender, Borrowers shall deliver one or more promissory
notes to such Lender in the form of Exhibit B or otherwise satisfactory to such Lender, Agent and
Borrower Agent, evidencing its Loans.
The proceeds of Revolver Loans shall be used by Borrowers solely (a) to satisfy existing Debt;
(b) to pay fees and transaction expenses associated with the closing of this credit facility;
(c) to pay Obligations in accordance with this Agreement; and (d) for lawful corporate purposes of
Borrowers, including working capital. Borrowers shall not, directly or indirectly, use any Letter
of Credit or Loan proceeds, nor use, lend, contribute or otherwise make available any Letter of
Credit or Loan proceeds to any Subsidiary, joint venture partner or other Person, (i) to fund any
activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of
issuance of the Letter of Credit or funding of the Loan, is the subject of any Sanction; (ii) in
any manner that would result in a violation of a Sanction by any Person (including any Secured
Party or other individual or entity participating in a transaction); or (iii) for any purpose that
would breach the U.S. Foreign Corrupt Practices Act of 1977, UK Bribery Act 2010 or similar law in
any jurisdiction.
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2.1.4 |
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Voluntary Reduction or Termination of Revolver
Commitments. |
(a) The Revolver Commitments shall terminate on the Revolver Termination Date, unless sooner
terminated in accordance with this Agreement. Upon at least 30 days prior written notice to Agent,
Borrowers may, at their option, terminate the Revolver Commitments and this credit facility. Any
notice of termination given by Borrowers shall be irrevocable. On the termination date, Borrowers
shall make Full Payment of the Obligations.
(b) Borrowers may permanently reduce the Revolver Commitments, on a ratable basis for all
Lenders, upon at least 30 days prior written notice to Agent delivered at any time after the First
Loan Year, which notice shall specify the amount of the reduction and shall be irrevocable once
given. Each reduction shall be in a minimum amount of $25,000,000, or an increment of $5,000,000
in excess thereof.
If Revolver Usage exceeds the Borrowing Base (Overadvance) at any time, the excess
amount shall be payable by Borrowers on demand by Agent, but all such Revolver Loans shall
nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the
Loan Documents. Agent may require Lenders to honor requests for Overadvance Loans and to forbear
from requiring Borrowers to cure an Overadvance, (a) when no other Event of Default is known to
Agent, as long as (i) the Overadvance does not continue for more than 30 consecutive days (and no
Overadvance may exist for at least five consecutive days thereafter before further Overadvance
Loans are required), and (ii) the Overadvance is not known by Agent to exceed 10% of the Revolving
Commitments; and (b) regardless of whether an Event of Default exists, if Agent discovers an
Overadvance not previously known by it to exist, as long as from the date of such discovery the
Overadvance is not increased by more than $25,000,000 and does not continue for more than 30
consecutive days. In no event shall Overadvance Loans be required that would cause Revolver Usage
to exceed the aggregate Revolver Commitments. Any funding of an Overadvance Loan or sufferance of
an Overadvance shall not constitute a waiver by Agent or Lenders of the Event of Default caused
thereby. In no event shall any Borrower or other Obligor be deemed a beneficiary of this Section
nor authorized to enforce any of its terms.
2.1.6 Protective AdvancesAgent shall be authorized, in its discretion, at any time
that any conditions in Section 6 are not satisfied, to make Base Rate Revolver Loans (Protective
Advances) (a) up to an aggregate outstanding amount not known by Agent to exceed 10% of the
Revolving Commitments at any time, if Agent deems such Loans necessary or desirable to preserve or
protect Collateral, or to enhance the collectability or repayment of Obligations, as long as such
Loans do not cause Revolver Usage to exceed the aggregate Revolver Commitments; or (b) to pay any
other amounts chargeable to Obligors under any Loan Documents, including interest, costs, fees and
expenses. Lenders shall participate on a Pro Rata basis in Protective Advances outstanding from
time to time. Required Lenders may at any time revoke Agents authority to make further Protective
Advances under clause (a) by written notice to Agent. Absent such revocation, Agents
determination that funding of a Protective Advance is appropriate shall be conclusive.
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2.1.7 |
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Increase in Revolver Commitments |
Borrowers may request an increase in Revolver Commitments from time to time upon notice to
Agent, as long as (a) the requested increase is in a minimum amount of $10,000,000 and is offered
on the same terms as existing Revolver Commitments, except for a closing fee to be mutually agreed
by Agent and Borrowers, (b) increases under this Section do not exceed $100,000,000.00 in the
aggregate and no more than 4 increases are made, (c) no reduction in Commitments pursuant to
Section 2.1.4 has occurred prior to the requested increase, and (d) the requested increase does not
cause the Commitments to exceed 90% of any applicable cap under any Subordinated Debt agreement.
Agent shall promptly notify Lenders of the requested increase and, within 10 Business Days
thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase
its Revolver Commitment. Any Lender not responding within such period shall be deemed to have
declined an increase. If Lenders fail to commit to the full requested increase, then Eligible
Assignees invited to join by the Borrowers or with the consent of the Borrowers may issue
additional Revolver Commitments and become Lenders hereunder. Agent shall allocate, in its
discretion and in consultation with the Borrower Agent, the increased Revolver Commitments among
committing Lenders and, if necessary, Eligible Assignees invited to join by the Borrowers or with
the consent of the Borrowers. Provided the conditions set forth in Section 6.2 are satisfied,
total Revolver Commitments shall be increased by the requested amount (or such lesser amount
committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, but
no later than 45 days following Borrowers increase request. Agent, Borrowers, and new and
existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate
to evidence the increase in and allocations of Revolver Commitments. On the effective date of an
increase, the Revolver Usage and other exposures under the Revolver Commitments shall be
reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders adjusted
shares of such Commitments.
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2.2 |
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[Intentionally Omitted]. |
2.3 |
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Letter of Credit Facility |
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2.3.1 |
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Issuance of Letters of Credit |
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Issuing Bank shall issue Letters of Credit from time to time until the Revolver Termination
Date (or until the Commitment Termination Date, if earlier), on the terms set forth herein,
including the following:
(a) Each Borrower acknowledges that Issuing Banks issuance of any Letter of Credit is
conditioned upon Issuing Banks receipt of a LC Application with respect to the requested Letter of
Credit, as well as such other instruments and agreements as Issuing Bank may customarily require
for issuance of a letter of credit of similar type and amount. Issuing Bank shall have no
obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC Request and LC
Application at least three Business Days prior to the requested date of issuance; (ii) each LC
Condition is satisfied; and (iii) if a Defaulting Lender exists, such Lender or Borrowers have
entered into arrangements satisfactory to Agent and Issuing Bank to eliminate any Fronting Exposure
associated with such Lender. If, in sufficient time to act, Issuing Bank receives written notice
from Agent or Required Lenders that a LC Condition has not been satisfied, Issuing Bank shall not
issue the requested Letter of Credit. Prior to receipt of any such notice, Issuing Bank shall not
be deemed to have knowledge of any failure of LC Conditions.
(b) Letters of Credit may be requested by a Borrower to support obligations incurred in the
Ordinary Course of Business, or as otherwise approved by Agent. Increase, renewal or extension of
a Letter of Credit shall be treated as issuance of a new Letter of Credit, except that Issuing Bank
may require a new LC Application in its discretion.
(c) Borrowers assume all risks of the acts, omissions or misuses of any Letter of Credit by
the beneficiary; provided, however, that this assumption is not intended to, and
shall not, preclude any Borrowers pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. In connection with issuance of any
Letter of Credit, none of Agent, Issuing Bank or any Lender shall be responsible for the existence,
character, quality, quantity, condition, packing, value or delivery of any goods purported to be
represented by any Documents; any differences or variation in the character, quality, quantity,
condition, packing, value or delivery of any goods from that expressed in any Documents; except as
expressly set forth in the Letter of Credit, the form, validity, sufficiency, accuracy, genuineness
or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order
in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any
goods referred to in a Letter of Credit or Documents; any deviation from instructions, delay,
default or fraud by any shipper or other Person in connection with any goods, shipment or delivery;
any breach of contract between a shipper or vendor and a Borrower; errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy,
e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by
a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from
causes beyond the control of Issuing Bank, Agent or any Lender, including any act or omission of a
Governmental Authority. The rights and remedies of Issuing Bank under the Loan Documents shall be
cumulative. Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary
whose claims against Borrowers are discharged with proceeds of any Letter of Credit.
(d) In connection with its administration of and enforcement of rights or remedies under any
Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and shall be fully
protected in acting, upon any certification, documentation or communication in whatever form
believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or
made by a proper Person. Issuing Bank may consult with and employ legal counsel, accountants and
other experts to advise it concerning its obligations, rights and remedies, and shall be entitled
to act upon, and shall be fully protected in any action taken in good faith reliance upon, any
advice given by such experts. Issuing Bank may employ agents and attorneys-in-fact in connection
with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the
negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.
(e) All Existing Letters of Credit shall be deemed to have been issued pursuant to this
Agreement and from and after the Closing Date shall be subject to and governed by the terms and
conditions of this Agreement, including without limitation Section 3.2.2.
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2.3.2 |
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Reimbursement; Participations. |
(a) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the Issuing Bank shall notify the Borrowers thereof. If Issuing Bank honors
any request for payment under a Letter of Credit, Borrowers shall pay to Issuing Bank, on the same
day (Reimbursement Date), the amount paid by Issuing Bank under such Letter of Credit,
together with interest at the interest rate for Base Rate Revolver Loans from the Reimbursement
Date until payment by Borrowers. The obligation of Borrowers to reimburse Issuing Bank for any
payment made under a Letter of Credit shall be absolute, unconditional, irrevocable, and joint and
several, and shall be paid without regard to any lack of validity or enforceability of any Letter
of Credit or the existence of any claim, setoff, defense or other right that Borrowers may have at
any time against the beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing,
Borrowers shall be deemed to have requested a Borrowing of Base Rate Revolver Loans in an amount
necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each Lender shall fund
its Pro Rata share of such Borrowing whether or not the Commitments have terminated, an Overadvance
exists or is created thereby, or the conditions in Section 6 are satisfied.
(b) Each Lender hereby irrevocably and unconditionally purchases from Issuing Bank, without
recourse or warranty, an undivided Pro Rata participation in all LC Obligations outstanding from
time to time. Issuing Bank is issuing Letters of Credit in reliance upon this participation. If
Borrowers do not make a payment to Issuing Bank when due hereunder, Agent shall promptly notify
Lenders and each Lender shall within one Business Day after such notice pay to Agent, for the
benefit of Issuing Bank, the Lenders Pro Rata share of such payment. Upon request by a Lender,
Issuing Bank shall provide copies of Letters of Credit and LC Documents in its possession at such
time.
(c) The obligation of each Lender to make payments to Agent for the account of Issuing Bank in
connection with Issuing Banks payment under a Letter of Credit shall be absolute, unconditional
and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever,
and shall be made in accordance with this Agreement under all circumstances, irrespective of any
lack of validity or unenforceability of any Loan Documents; any draft, certificate or other
document presented under a Letter of Credit having been determined to be forged, fraudulent,
noncompliant, invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; any waiver by Issuing Bank of a requirement that exists for its
protection (and not a Borrowers protection) or that does not materially prejudice a Borrower; any
honor of an electronic demand for payment even if a draft is required; any payment of an item
presented after a Letter of Credits expiration date if authorized by the UCC or applicable customs
or practices; or any setoff or defense that an Obligor may have with respect to any Obligations.
Issuing Bank does not assume any responsibility for any failure or delay in performance or any
breach by any Borrower or other Person of any obligations under any LC Documents. Issuing Bank
does not make to Lenders any express or implied warranty, representation or guaranty with respect
to any Letter of Credit, Collateral, LC Document or Obligor. Issuing Bank shall not be responsible
to any Lender for any recitals, statements, information, representations or warranties contained
in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC
Documents; the validity, genuineness, enforceability, collectability, value or sufficiency of any
Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition,
results of operations, business, creditworthiness or legal status of any Obligor.
(d) No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action
taken or omitted to be taken in connection with any Letter of Credit or LC Document except as a
result of its gross negligence or willful misconduct. Issuing Bank may require that the Lenders
provide Issuing Bank with written instructions (and in its discretion, appropriate assurances) in
connection with the taking of any action with respect to a Letter of Credit.
Subject to Section 2.1.5, if at any time (a) an Event of Default exists, or (b) the Commitment
Termination Date has occurred, then Borrowers shall, at Issuing Banks or Agents request, Cash
Collateralize all outstanding Letters of Credit. Borrowers shall, at Issuing Banks or Agents
request at any time, Cash Collateralize the Fronting Exposure of any Defaulting Lender which has
not been reallocated pursuant to Section 4.2. If Borrowers fail to provide any Cash Collateral as
required hereunder, Lenders may (and shall upon direction of Agent) advance, as Revolver Loans, the
amount of Cash Collateral required (whether or not the Commitments have terminated, an Overadvance
exists or the conditions in Section 6 are satisfied).
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2.3.4 |
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Resignation of Issuing Bank |
Issuing Bank may resign at any time upon not less than thirty (30) days prior notice to Agent
and Borrowers (provided that if a Default or Event of Default has occurred and is
continuing, such resignation may be effective immediately upon such notice). From the effective
date of such resignation, Issuing Bank shall have no obligation to issue, amend, renew, extend or
otherwise modify any Letter of Credit, but shall continue to have all rights and other obligations
of an Issuing Bank hereunder relating to any Letter of Credit issued by it prior to such date.
Agent shall promptly appoint a replacement Issuing Bank, which, as long as no Default or Event of
Default exists, shall be reasonably acceptable to Borrowers.
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SECTION 3. |
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INTEREST, FEES AND CHARGES |
3.1 |
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Interest. |
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3.1.1 |
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Rates and Payment of Interest. |
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(a) The Obligations shall bear interest (i) if a Base Rate Loan, at the Base Rate in effect
from time to time, plus the Applicable Margin; (ii) if a LIBOR Loan, at LIBOR for the applicable
Interest Period, plus the Applicable Margin; and (iii) if any other Obligation (including, to the
extent permitted by law, interest not paid when due) other than with respect to Letters of Credit,
at the Base Rate in effect from time to time, plus the Applicable Margin for Base Rate Revolver
Loans.
(b) During an Insolvency Event with respect to any Borrower, or during any other Event of
Default if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest
at the Default Rate (whether before or after any judgment). Each Borrower acknowledges that the
cost and expense to Agent and Lenders due to an Event of Default are difficult to ascertain and
that the Default Rate is a fair and reasonable estimate to compensate Agent and Lenders for such
additional cost and expenses.
(c) Interest shall accrue from the date a Loan is advanced or Obligation (other than with
respect to Letters of Credit) is incurred or payable, until paid in full by Borrowers. Interest
accrued on the Loans shall be due and payable in arrears, (i) on the first day of each month;
(ii) on any date of prepayment, with respect to the principal amount of Loans being prepaid; and
(iii) on the Commitment Termination Date. Interest accrued on any other Obligations (other than
with respect to Letters of Credit) shall be due and payable as provided in the Loan Documents and,
if no payment date is specified, shall be due and payable on demand. Notwithstanding the
foregoing, interest accrued at the Default Rate shall be due and payable on demand.
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3.1.2 |
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Application of LIBOR to Outstanding Loans. |
(a) Borrowers may on any Business Day, subject to delivery of a Notice of
Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to continue any
LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any Default or Event of
Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be
made, converted or continued as a LIBOR Loan.
(b) Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, Borrower Agent
shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least two
Business Days before the requested conversion or continuation date. Promptly after receiving any
such notice, Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall
be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion
or continuation date (which shall be a Business Day), and the duration of the Interest Period
(which shall be deemed to be 30 days if not specified). If, upon the expiration of any Interest
Period for any LIBOR Loan, Borrowers shall have failed to deliver a Notice of
Conversion/Continuation, they shall be deemed to have elected to convert such Loan into a Base Rate
Loan. Agent does not warrant or accept responsibility for, nor shall it have any liability with
respect to, administration, submission or any other matter related to any rate described in the
definition of LIBOR.
In connection with the making, conversion or continuation of any LIBOR Loans, Borrowers shall
select an interest period (Interest Period) to apply, which interest period shall be 30,
60, or 90 days; provided, however, that:
(a) the Interest Period shall begin on the date the Loan is made or continued as, or converted
into, a LIBOR Loan, and shall expire on the numerically corresponding day in the calendar month at
its end;
(b) if any Interest Period begins on a day for which there is no corresponding day in the
calendar month at its end or if such corresponding day falls after the last Business Day of such
month, then the Interest Period shall expire on the last Business Day of such month; and if any
Interest Period would otherwise expire on a day that is not a Business Day, the period shall expire
on the next Business Day; and
(c) no Interest Period shall extend beyond the Revolver Termination Date.
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3.1.4 |
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Interest Rate Not Ascertainable |
If, due to any circumstance affecting the London interbank market, Agent determines that
adequate and fair means do not exist for ascertaining LIBOR on any applicable date or that any
Interest Period is not available on the basis provided herein, then Agent shall immediately notify
Borrowers of such determination. Until Agent notifies Borrowers that such circumstance no longer
exists, the obligation of Lenders to make affected LIBOR Loans shall be suspended and no further
Loans may be converted into or continued as such LIBOR Loans.
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3.2 |
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Fees. |
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3.2.1 |
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Unused Line Fee |
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Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a fee equal to the Unused
Line Fee Rate times the amount by which the Revolver Commitments exceed the average daily Revolver
Usage during any month. Such fee shall be payable in arrears, on the first day of each month and
on the Commitment Termination Date.
Borrowers shall pay (a) to Agent, for the Pro Rata benefit of Lenders, a fee equal to the
Applicable Margin in effect for LIBOR Revolver Loans times the average daily Stated Amount of
Letters of Credit, which fee shall be payable monthly in arrears, on the first day of each month;
(b) to Agent, for its own account, a fronting fee equal to 0.125% per annum on the Stated Amount of
each Letter of Credit, which fee shall be payable monthly in arrears, on the first day of each
month; and (c) to Issuing Bank, for its own account, all customary charges associated with the
issuance, amending, negotiating, payment, processing, transfer and administration of Letters of
Credit, which charges shall be paid as and when incurred. During an Event of Default, the fee
payable under clause (a) shall be increased by 2% per annum.
On the Closing Date, Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a
closing fee of $625,000.
Borrowers shall pay all fees set forth in any fee letter executed in connection with this
Agreement.
3.3 Computation of Interest, Fees, Yield Protection. All interest, as well as fees and
other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based
on a year of 360 days. Each determination by Agent of any interest, fees or interest rate
hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees
shall be fully earned when due and shall not be subject to rebate, refund or proration absent
manifest error in the calculation thereof. All fees payable under Section 3.2 are compensation for
services and are not, and shall not be deemed to be, interest or any other charge for the use,
forbearance or detention of money. A certificate as to amounts payable by Borrowers under Section
3.4, 3.6, 3.7, 3.9 or 5.9, submitted to Borrower Agent by Agent or the affected Lender shall be
final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall pay such
amounts to the appropriate party within 10 days following receipt of the certificate.
3.4 Reimbursement Obligations. Borrowers shall pay all Extraordinary Expenses promptly
upon request. Borrowers shall also reimburse Agent for all reasonable legal, accounting,
appraisal, consulting, and other reasonable fees, costs and expenses incurred by it in connection
with (a) negotiation and preparation of any Loan Documents, including any amendment or other
modification thereof; (b) administration of and actions relating to any Collateral, Loan Documents
and transactions contemplated thereby, including any actions taken to perfect or maintain priority
of Agents Liens on any Collateral, to maintain any insurance required hereunder or to verify
Collateral; and (c) subject to the limits of Section 10.1.1(b), each inspection, audit or appraisal
with respect to any Obligor or Collateral, whether prepared by Agents personnel or a third party.
All legal, accounting and consulting fees shall be charged to Borrowers by Agents professionals at
their full hourly rates, regardless of any alternative fee arrangements that Agent, any Lender or
any of their Affiliates may have with such professionals that otherwise might apply to this or any
other transaction. Borrowers acknowledge that counsel may provide Agent with a benefit (such as a
discount, credit or accommodation for other matters) based on counsels overall relationship with
Agent, including fees paid hereunder. If, for any reason (including inaccurate reporting in
Borrower Materials), it is determined that a higher Applicable Margin should have applied to a
period than was actually applied, then the proper margin shall be applied retroactively and
Borrowers shall immediately pay to Agent, for the ratable benefit of Lenders, an amount equal to
the difference between the amount of interest and fees that would have accrued using the proper
margin and the amount actually paid. All amounts payable by Borrowers under this Section shall be
due on demand.
3.5 Illegality. If any Lender determines that any Applicable Law has made it unlawful, or
that any Governmental Authority has asserted that it is unlawful, for any Lender to make, maintain
or fund LIBOR Loans, or to determine or charge interest rates based upon LIBOR, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender
to Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate
Loans to LIBOR Loans shall be suspended until such Lender notifies Agent that the circumstances
giving rise to such determination no longer exist. Upon delivery of such notice, Borrowers shall
prepay or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans, either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
LIBOR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
LIBOR Loans. Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on
the amount so prepaid or converted.
3.6 Inability to Determine Rates. Agent will promptly notify Borrower Agent and Lenders
if, in connection with any Loan or request for a Loan, (a) Agent determines that (i) Dollar
deposits are not being offered to banks in the London interbank Eurodollar market for the
applicable Loan amount or Interest Period, or (ii) adequate and reasonable means do not exist for
determining LIBOR for the Interest Period; or (b) Agent or Required Lenders determine for any
reason that LIBOR for the Interest Period does not adequately and fairly reflect the cost to
Lenders of funding the Loan. Thereafter, Lenders obligations to make or maintain affected LIBOR
Loans and utilization of the LIBOR component (if affected) in determining Base Rate shall be
suspended until Agent (upon instruction by Required Lenders) withdraws the notice. Upon receipt of
such notice, Borrower Agent may revoke any pending request for a LIBOR Loan or, failing that, will
be deemed to have requested a Base Rate Loan.
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3.7 |
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Increased Costs; Capital Adequacy. |
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3.7.1 |
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Increased Costs Generally |
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If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement reflected in calculating
LIBOR) or Issuing Bank;
(b) subject any Recipient to Taxes (other than (i) Indemnified Taxes, (ii) Taxes described in
clauses (b) through (d) of the definition of Excluded Taxes, and (iii) Connection Income
Taxes) with respect to any Loan, Letter of Credit, Commitment or other obligations, or its
deposits, reserves, other liabilities or capital attributable thereto; or
(c) impose on any Lender, Issuing Bank or interbank market any other condition, cost or
expense (other than Taxes) affecting any Loan, Letter of Credit, participation in LC Obligations,
Commitment or Loan Document;
and the result thereof shall be to increase the cost to a Lender of making or maintaining any
Loan or Commitment, or converting to or continuing any interest option for a Loan, or to increase
the cost to a Lender or Issuing Bank of participating in, issuing or maintaining any Letter of
Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to
reduce the amount of any sum received or receivable by a Lender or Issuing Bank hereunder (whether
of principal, interest or any other amount) then, upon request of such Lender or Issuing Bank,
Borrowers will pay to it such additional amount(s) as will compensate it for the additional costs
incurred or reduction suffered.
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3.7.2 |
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Capital Requirements |
If a Lender or Issuing Bank determines that a Change in Law affecting such Lender or Issuing
Bank or its holding company, if any, regarding capital or liquidity requirements has or would have
the effect of reducing the rate of return on such Lenders, Issuing Banks or holding companys
capital as a consequence of this Agreement, or such Lenders or Issuing Banks Commitments, Loans,
Letters of Credit or participations in LC Obligations or Loans, to a level below that which such
Lender, Issuing Bank or holding company could have achieved but for such Change in Law (taking into
consideration its policies with respect to capital adequacy), then from time to time Borrowers will
pay to such Lender or Issuing Bank, as the case may be, such additional amounts as will compensate
it or its holding company for the reduction suffered.
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3.7.3 |
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LIBOR Loan Reserves |
If any Lender is required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits, Borrowers shall pay additional interest
to such Lender on each LIBOR Loan equal to the costs of such reserves allocated to the Loan by the
Lender (as determined by it in good faith, which determination shall be conclusive absent manifest
error). The additional interest shall be due and payable on each interest payment date for the
Loan; provided, however, that if the Lender notifies Borrowers (with a copy to
Agent) of the additional interest less than 10 days prior to the interest payment date, then such
interest shall be payable 10 days after Borrowers receipt of the notice.
Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to
this Section shall not constitute a waiver of its right to demand such compensation, but Borrowers
shall not be required to compensate a Lender or Issuing Bank for any increased costs or reductions
suffered more than nine months (plus any period of retroactivity of the Change in Law giving rise
to the demand) prior to the date that the Lender or Issuing Bank notifies Borrower Agent of the
applicable Change in Law and of such Lenders or Issuing Banks intention to claim compensation
therefor.
3.8 Mitigation. If any Lender gives a notice under Section 3.5 or requests compensation
under Section 3.7, or if Borrowers are required to pay any Indemnified Taxes or additional amounts
with respect to a Lender under Section 5.9, then at the request of Borrower Agent, such Lender
shall use reasonable efforts to designate a different Lending Office or to assign its rights and
obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of
such Lender, such designation or assignment (a) would eliminate the need for such notice or reduce
amounts payable or to be withheld in the future, as applicable; and (b) would not subject the
Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to it or
unlawful. Borrowers shall pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
3.9 Funding Losses. Except as expressly set forth in Section 5.2, if for any reason
(a) any Borrowing, conversion or continuation of a LIBOR Loan does not occur on the date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn),
(b) any repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest
Period, (c) Borrowers fail to repay a LIBOR Loan when required hereunder, or (d) a Lender (other
than a Defaulting Lender) is required to assign a LIBOR Loan prior to the end of its Interest
Period pursuant to Section 13.4 due to a request of Borrower Agent, then Borrowers shall pay to
Agent its customary administrative charge and to each Lender all losses, expenses and fees arising
from redeployment of funds or termination of match funding. For purposes of calculating amounts
payable under this Section, a Lender shall be deemed to have funded a LIBOR Loan by a matching
deposit or other borrowing in the London interbank market for a comparable amount and period,
whether or not the Loan was in fact so funded.
3.10 Maximum Interest. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by Applicable Law (maximum rate). If
Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess
interest shall be applied to the principal of the Obligations or, if it exceeds such unpaid
principal, refunded to Borrowers. In determining whether the interest contracted for, charged or
received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by
Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium
rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize,
prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
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SECTION 4. |
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LOAN ADMINISTRATION |
4.1 |
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Manner of Borrowing and Funding Revolver Loans. |
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4.1.1 |
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Notice of Borrowing. |
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(a) Whenever Borrowers desire a funding of Revolver Loans, Borrower Agent shall give Agent a
Notice of Borrowing. Such notice must be received by Agent by 11:00 a.m. (i) on the requested
funding date, in the case of Base Rate Loans, and (ii) at least two Business Days prior to the
requested funding date, in the case of LIBOR Loans. Notices received after such time shall be
deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable and shall
specify (A) the amount of the Borrowing, (B) the requested funding date (which must be a Business
Day), (C) whether the Borrowing is to be made as a Base Rate Loan or LIBOR Loan, and (D) in the
case of a LIBOR Loan, the applicable Interest Period (which shall be deemed to be 30 days if not
specified).
(b) Unless payment is otherwise made by Borrowers, the becoming due of any Obligation (whether
principal, interest, fees or other charges, including Extraordinary Expenses, LC Obligations, Cash
Collateral and Secured Bank Product Obligations) shall be deemed to be a request for a Base Rate
Revolver Loan on the due date in the amount due and the Loan proceeds shall be disbursed as direct
payment of such Obligation. In addition, Agent may, at its option, charge such amount against any
operating, investment or other account of a Borrower maintained with Agent or any of its
Affiliates.
(c) If a Borrower maintains a disbursement account with Agent or any of its Affiliates, then
presentation for payment in the account of a Payment Item when there are insufficient funds to
cover it shall be deemed to be a request for a Base Rate Revolver Loan on the presentation date, in
the amount of the Payment Item. Proceeds of the Loan may be disbursed directly to the account.
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4.1.2 |
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Fundings by Lenders. |
Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify Lenders of
each Notice of Borrowing (or deemed request for a Borrowing) by 1:00 p.m. on the proposed funding
date for a Base Rate Loan or by 3:00 p.m. at least two Business Days before a proposed funding of a
LIBOR Loan. Each Lender shall fund its Pro Rata share of a Borrowing in immediately available
funds not later than 3:00 p.m. on the requested funding date, unless Agents notice is received
after the times provided above, in which case Lender shall fund by 11:00 a.m. on the next Business
Day. Subject to its receipt of such amounts from Lenders, Agent shall disburse the Borrowing
proceeds on the requested funding date as directed by Borrower Agent. Unless Agent shall have
received (in sufficient time to act) written notice from a Lender that it does not intend to fund
its share of a Borrowing, Agent may assume that such Lender has deposited or promptly will deposit
its share with Agent, and Agent may disburse a corresponding amount to Borrowers. If a Lenders
share of a Borrowing or of a settlement under Section 4.1.3(b) is not received by Agent, then
Borrowers agree to repay to Agent on demand the amount of such share, together with interest
thereon from the date disbursed until repaid, at the rate applicable to the Borrowing. A Lender or
Issuing Bank may fulfill its obligations under Loan Documents through one or more Lending Offices,
and this shall not affect any obligation of Obligors under the Loan Documents or with respect to
any Obligations.
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4.1.3 |
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Swingline Loans; Settlement. |
(a) To fulfill any request for a Base Rate Revolver Loan hereunder, Agent may in its
discretion advance Swingline Loans to Borrowers, up to an aggregate outstanding amount of
$25,000,000. Swingline Loans shall constitute Revolver Loans for all purposes, except that
payments thereon shall be made to Agent for its own account until Lenders have funded their
participations therein as provided below.
(b) Settlement of Loans, including Swingline Loans, among Lenders and Agent shall take place
on a date determined from time to time by Agent (but at least weekly, unless the settlement amount
is de minimis), on a Pro Rata basis in accordance with the Settlement Report delivered by Agent to
Lenders. Between settlement dates, Agent may in its discretion apply payments on Revolver Loans to
Swingline Loans, regardless of any designation by Borrowers or any provision herein to the
contrary. Each Lender hereby purchases, without recourse or warranty, an undivided Pro Rata
participation in all Swingline Loans outstanding from time to time until settled. If a Swingline
Loan cannot be settled among Lenders, whether due to an Obligors Insolvency Proceeding or for any
other reason, each Lender shall pay the amount of its participation in the Loan to Agent, in
immediately available funds, within one Business Day after Agents request therefor. Lenders
obligations to make settlements and to fund participations are absolute, irrevocable and
unconditional, without offset, counterclaim or other defense, and whether or not the Commitments
have terminated, an Overadvance exists or the conditions in Section 6 are satisfied.
Borrowers may request, convert or continue Loans, select interest rates and transfer funds
based on telephonic or e-mailed instructions to Agent. Borrowers shall confirm each such request
by prompt delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if
applicable, but if it differs materially from the action taken by Agent or Lenders based on the
telephonic or e-mailed instructions given by Borrowers, the records of Agent and Lenders shall
govern. Neither Agent nor any Lender shall have any liability for any loss suffered by a Borrower
as a result of Agent or any Lender acting upon its understanding of telephonic or e-mailed
instructions from a person believed in good faith by Agent or any Lender to be a person authorized
to give such instructions on a Borrowers behalf.
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4.2 |
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Defaulting Lender. Notwithstanding anything herein to the contrary: |
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4.2.1 |
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Reallocation of Pro Rata Share; Amendments. |
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For purposes of determining Lenders obligations or rights to fund, participate in or receive
collections with respect to Loans and Letters of Credit (including existing Swingline Loans,
Protective Advances and LC Obligations), Agent shall reallocate such obligations and rights to the
non-Defaulting Lenders in accordance with their Pro Rata shares by excluding a Defaulting Lenders
Commitments and Loans from the calculation of shares. A Defaulting Lender shall have no right to
vote on any amendment, waiver or other modification of a Loan Document, except as provided in
Section 14.1.1(c).
Agent shall receive and retain any amounts payable to a Defaulting Lender under the Loan
Documents, and a Defaulting Lender shall be deemed to have assigned to Agent such amounts until all
Obligations owing to Agent, non-Defaulting Lenders and other Secured Parties have been paid in
full. Agent shall use such amounts to cover the Defaulting Lenders defaulted obligations, to Cash
Collateralize such Lenders Fronting Exposure, to readvance the amounts to Borrowers or to repay
Obligations. A Lender shall not be entitled to receive any fees accruing hereunder while it is a
Defaulting Lender and its unfunded Commitment shall be disregarded for purposes of calculating the
unused line fee under Section 3.2.1. If any LC Obligations owing to a Defaulted Lender are
reallocated to other Lenders, fees attributable to such LC Obligations under Section 3.2.2 shall be
paid to such Lenders. Agent shall be paid all fees attributable to LC Obligations that are not
reallocated.
Agent may determine in its discretion that a Lender constitutes a Defaulting Lender and the
effective date of such status shall be conclusive and binding on all parties, absent manifest
error. Borrowers, Agent and Issuing Bank may agree in writing that a Lender has ceased to be a
Defaulting Lender, whereupon Pro Rata shares shall be reallocated without exclusion of the
reinstated Lenders Commitments and Loans, and the Revolver Usage and other exposures under the
Revolver Commitments shall be reallocated among Lenders and settled by Agent (with appropriate
payments by the reinstated Lender, including payment of any breakage costs for reallocated LIBOR
Loans) in accordance with the readjusted Pro Rata shares. Unless expressly agreed by Borrowers,
Agent and Issuing Bank, no reinstatement of a Defaulting Lender shall constitute a waiver or
release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment
in respect of LC Obligations or otherwise to perform obligations hereunder shall not relieve any
other Lender of its obligations under any Loan Document. No Lender shall be responsible for
default by another Lender (provided that nothing in this sentence shall limit, impair or
otherwise modify the terms of Section 4.2.1 or the reallocation of rights and obligations of a
Defaulting Lender set forth therein).
4.3 Number and Amount of LIBOR Loans; Determination of Rate. Each Borrowing of LIBOR Loans
when made shall be in a minimum amount of $1,000,000, plus an increment of $1,000,000 in excess
thereof. No more than 10 Borrowings of LIBOR Loans may be outstanding at any time, and all LIBOR
Loans having the same length and beginning date of their Interest Periods shall be aggregated
together and considered one Borrowing for this purpose. Upon determining LIBOR for any Interest
Period requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or
electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.
4.4 Borrower Agent. Each Borrower hereby designates Skechers as its representative and
agent for all purposes under the Loan Documents (in such capacity, the Borrower Agent), including
requests for and receipt of Loans and Letters of Credit, designation of interest rates, delivery or
receipt of communications, delivery of Borrower Materials, payment of Obligations, requests for
waivers, amendments or other accommodations, actions under the Loan Documents (including in respect
of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender.
Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon,
and shall be fully protected in relying upon, any notice or communication (including any notice of
borrowing) delivered by Borrower Agent on behalf of any Borrower. Agent and Lenders may give any
notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower.
Each of Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal
exclusively with Borrower Agent for all purposes under the Loan Documents. Each Borrower agrees
that any notice, election, communication, delivery, representation, agreement, action, omission or
undertaking on its behalf by Borrower Agent shall be binding upon and enforceable against it.
4.5 One Obligation. The Loans, LC Obligations and other Obligations constitute one general
obligation of Borrowers and (except to the extent otherwise expressly provided in any Loan
Document) are secured by Agents Lien on all Collateral; provided, however, that
Agent and each Lender shall be deemed to be a creditor of, and the holder of a separate claim
against, each Obligor to the extent of any Obligations jointly or severally owed by such Obligor.
4.6 Effect of Termination. On the effective date of the termination of all Commitments,
the Obligations (other than any Secured Bank Product Obligations which are not terminated by the
applicable Secured Bank Product Provider) shall be immediately due and payable, and each Secured
Bank Product Provider may terminate its Bank Products. Until Full Payment of the Obligations, all
undertakings of Borrowers contained in the Loan Documents shall continue, and Agent shall retain
its Liens in the Collateral and all of its rights and remedies under the Loan Documents. Agent
shall be required to terminate its Liens upon receipt of Full Payment of the Obligations and hereby
agrees, at the expense of the Obligors, to provide evidence of such termination as may be
reasonably requested by the Obligors; provided, however, that Agent shall not be
required to execute any document necessary to evidence such release on terms that, in Agents
opinion, would expose Agent to liability or create any obligation or entail any consequence other
than the release of such Liens without recourse, representation, or warranty. Sections 2.3, 3.4,
3.6, 3.7, 3.9, 5.5, 5.9, 5.10, 12, 14.2, this Section, and each indemnity or waiver given in any
Loan Document, shall survive Full Payment of the Obligations.
5.1 General Payment Provisions. All payments of Obligations shall be made in Dollars,
without offset, counterclaim or defense of any kind, free and clear of (and without deduction
for) any Taxes, and in immediately available funds, not later than 12:00 noon on the due date. Any
payment after such time shall be deemed made on the next Business Day. Any payment of a LIBOR Loan
prior to the end of its Interest Period shall be accompanied by all amounts due under Section 3.9.
Subject to Sections 5.2 and 5.6, Borrowers agree that Agent shall have the continuing, exclusive
right to apply and reapply payments and proceeds of Collateral against the Obligations, in such
manner as Agent deems advisable, but whenever possible, any prepayment of Loans shall be applied
first to Base Rate Loans and then to LIBOR Loans.
5.2 Repayment of Revolver Loans. Revolver Loans shall be due and payable in full on the
Revolver Termination Date, unless payment is sooner required hereunder. Revolver Loans may be
prepaid from time to time, without penalty or premium. Subject to Section 2.1.5, if an Overadvance
exists at any time, Borrowers shall, on the sooner of Agents demand or the first Business Day
after any Borrower has knowledge thereof, repay Revolver Loans in an amount sufficient to reduce
Revolver Usage to the Borrowing Base. For any Asset Disposition of Accounts or Inventory,
Borrowers shall apply the Net Proceeds of such Asset Disposition of Accounts or Inventory to repay
Revolver Loans equal to the greater of (a) the net book value of such Accounts and Inventory, or
(b) the reduction in Borrowing Base resulting from the disposition; provided that, any such
Net Proceeds shall be applied first to any Base Rate Loans, and, then to any LIBOR Loans,
provided, further that if application of such Net Proceeds toward payment of a
LIBOR Loan would be on a day other than the last day of the applicable Interest Period and would
result in Borrowers having any liability under Section 3.9, Agent shall, unless a Default or Event
of Default has occurred and is continuing or unless otherwise requested by Borrower Agent, hold the
amount of such payment of Net Proceeds as Cash Collateral for the Obligations until the last day of
such Interest Period and then apply such Net Proceeds to the payment of the applicable LIBOR Loan
on such last day.
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5.3 |
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[Intentionally Omitted]. |
5.4 Payment of Other Obligations. Obligations other than Loans, including LC Obligations
and Extraordinary Expenses, shall be paid by Borrowers as provided in the Loan Documents or, if no
payment date is specified, on demand.
5.5 Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any obligation
to marshal any assets in favor of any Obligor or against any Obligations. If any payment by or on
behalf of Borrowers is made to Agent, Issuing Bank or any Lender, or if Agent, Issuing Bank or any
Lender exercises a right of setoff, and any of such payment or setoff is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by Agent, Issuing Bank or a Lender in its discretion) to be repaid to a
trustee, receiver or any other Person, then the Obligation originally intended to be satisfied, and
all Liens, rights and remedies relating thereto, shall be revived and continued in full force and
effect as if such payment or setoff had not occurred.
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5.6 |
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Application and Allocation of Payments. |
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5.6.1 |
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Application |
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Payments made by Borrowers hereunder shall be applied (a) first, as specifically
required hereby; (b) second, to Obligations then due and owing; (c) third, to other
Obligations specified by Borrowers; and (d) fourth, as determined by Agent in its
discretion.
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5.6.2 |
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Post-Default Allocation |
Notwithstanding anything in any Loan Document to the contrary, during an Event of Default,
monies to be applied to the Obligations, whether arising from payments by Obligors, realization on
Collateral, setoff or otherwise, shall be allocated as follows:
(a) first, to all fees, indemnification, costs and expenses, including Extraordinary
Expenses, owing to Agent;
(b) second, to all amounts owing to Agent on Swingline Loans, Protective Advances, and
Loans and participations that a Defaulting Lender has failed to settle or fund;
(c) third, to all amounts owing to Issuing Bank;
(d) fourth, to all Obligations (other than Secured Bank Product
Obligations) constituting fees, indemnification, costs or expenses owing to Lenders;
(e) fifth, to all Obligations (other than Secured Bank Product
Obligations) constituting interest;
(f) sixth, to Cash Collateralize all LC Obligations;
(g) seventh, to all Loans, and to Secured Bank Product Obligations arising under
Hedging Agreements (including Cash Collateralization thereof) up to the amount of Reserves existing
therefor;
(h) eighth, to all other Secured Bank Product Obligations;
(i) ninth, to all remaining Obligations; and
(j) last, to the Borrower Agent or as otherwise required by Applicable Law.
Amounts shall be applied to payment of each category of Obligations only after Full Payment of
amounts payable from time to time under all preceding categories. If amounts are insufficient to
satisfy a category, they shall be paid ratably among outstanding Obligations in the category.
Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations,
but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to
preserve the allocations in any applicable category. Agent shall have no obligation to calculate
the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation
thereof from a Secured Bank Product Provider. If the provider fails to deliver the calculation
within five days following request, Agent may assume the amount is zero. The allocations set forth
in this Section 5.6.2 are solely to determine the rights and priorities among Secured Parties, and
may be changed by agreement of the affected Secured Parties, without the consent of any Obligor.
This Section 5.6.2 is not for the benefit of or enforceable by any Obligor, and each Obligor
irrevocably waives the right to direct the application of any payments or Collateral proceeds
subject to this Section 5.6.2.
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5.6.3 |
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Erroneous Application |
Agent shall not be liable for any application of amounts made by it in good faith and, if any
such application is subsequently determined to have been made in error, the sole recourse of any
Lender or other Person to which such amount should have been made shall be to recover the amount
from the Person that actually received it (and, if such amount was received by a Secured Party, the
Secured Party agrees to return it).
5.7 Dominion Account. During any Dominion Period, the ledger balance in the main Dominion
Account as of the end of a Business Day shall be applied to the Obligations at the beginning of the
next Business Day. If a credit balance results from such application, it shall not accrue interest
in favor of Borrowers and shall be made available to Borrowers as long as no Event of Default
exists.
5.8 Account Stated. Agent shall maintain, in accordance with its customary practices, loan
account(s) evidencing the Debt of Borrowers hereunder. Any failure of Agent to record anything in
a loan account, or any error in doing so, shall not limit or otherwise affect the obligation of
Borrowers to pay any amount owing hereunder. Entries made in a loan account shall constitute
presumptive evidence of the information contained therein. If any information contained in a loan
account is provided to or inspected by any Person, the information shall be conclusive and binding
on such Person for all purposes absent manifest error, except to the extent such Person notifies
Agent in writing within 30 days after receipt or inspection that specific information is subject to
dispute.
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5.9 |
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Taxes. |
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5.9.1 |
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Payments Free of Taxes; Obligation to Withhold; Tax Payment |
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(a) All payments of Obligations by Obligors shall be made without deduction or withholding for
any Taxes, except as required by Applicable Law. If Applicable Law (as determined by Agent in its
good faith discretion) requires the deduction or withholding of any Tax from any such payment by
Agent or an Obligor, then Agent or such Obligor shall be entitled to make such deduction or
withholding based on information and documentation provided pursuant to Section 5.10.
(b) If Agent or any Obligor is required by the Code to withhold or deduct Taxes from any
payment under the Loan Documents, then (i) Agent shall pay the full amount that it determines is to
be withheld or deducted to the relevant Governmental Authority pursuant to the Code, and (ii) to
the extent the withholding or deduction is made on account of Indemnified Taxes, the sum payable by
the applicable Obligor shall be increased as necessary so that the Recipient receives an amount
equal to the sum it would have received had no such withholding or deduction been made.
(c) If Agent or any Obligor is required by any Applicable Law other than the Code to withhold
or deduct Taxes from any payment under the Loan Documents, then (i) Agent or such Obligor, to the
extent required by Applicable Law, shall timely pay the full amount to be withheld or deducted to
the relevant Governmental Authority, and (ii) to the extent the withholding or deduction is made on
account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as
necessary so that the Recipient receives an amount equal to the sum it would have received had no
such withholding or deduction been made.
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5.9.2 |
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Payment of Other Taxes |
Without limiting the foregoing, Borrowers shall timely pay to the relevant Governmental
Authority in accordance with Applicable Law, or at Agents option, timely reimburse Agent for
payment of, any Other Taxes.
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Tax Indemnification |
(a) Each Borrower shall indemnify and hold harmless, on a joint and several basis, each
Recipient against any Indemnified Taxes (including those imposed or asserted on or attributable to
amounts payable under this Section) payable or paid by a Recipient or required to be withheld or
deducted from a payment to a Recipient, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. Each Borrower shall indemnify and hold
harmless Agent against any amount that a Lender or Issuing Bank fails for any reason to pay
indefeasibly to Agent as required pursuant to this Section. Each Borrower shall make payment
within 10 days after demand for any amount or liability payable under this Section. A certificate
as to the amount of such payment or liability delivered to Borrowers by a Lender or Issuing Bank
(with a copy to Agent), or by Agent on its own behalf or on behalf of any Recipient, shall be
conclusive absent manifest error.
(b) Each Lender and Issuing Bank shall indemnify and hold harmless, on a several basis, Agent
(i) against any Indemnified Taxes attributable to such Lender or Issuing Bank (but only to the
extent Borrowers have not already paid or reimbursed Agent therefor and without limiting Borrowers
obligation to do so), (ii) against any Taxes attributable to such Lenders failure to maintain a
Participant register as required hereunder, and (iii) against any Excluded Taxes attributable to
such Lender or Issuing Bank, in each case, that are payable or paid by Agent in connection with any
Obligations, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.
Each Lender and Issuing Bank shall make payment within 10 days after demand for any amount or
liability payable under this Section. A certificate as to the amount of such payment or liability
delivered to any Lender or Issuing Bank by Agent shall be conclusive absent manifest error. Each
Lender hereby authorizes Agent to set off and apply any and all amounts at any time owing to such
Lender under any Loan Document or otherwise payable by Agent to such Lender from any other source
against any amount due to Agent under this paragraph (b).
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5.9.4 |
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Evidence of Payments |
If Agent or an Obligor pays any Taxes pursuant to this Section, then upon request, Agent shall
deliver to Borrower Agent or Borrower Agent shall deliver to Agent, respectively, a copy of a
receipt issued by the appropriate Governmental Authority evidencing the payment, a copy of any
return required by Applicable Law to report the payment, or other evidence of payment reasonably
satisfactory to Agent or Borrower Agent, as applicable.
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5.9.5 |
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Treatment of Certain Refunds |
Unless required by Applicable Law, at no time shall Agent have any obligation to file for or
otherwise pursue on behalf of a Lender or Issuing Bank, nor have any obligation to pay to any
Lender or Issuing Bank, any refund of Taxes withheld or deducted from funds paid for the account of
a Lender or Issuing Bank. If a Recipient determines in its sole good faith discretion that it has
received a refund of any Taxes as to which it has been indemnified by Borrowers or with respect to
which a Borrower has paid additional amounts pursuant to this Section, it shall pay Borrowers an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund),
provided that Borrowers agree, upon request by the Recipient, to repay the amount paid over
to Borrowers (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Recipient if the Recipient is required to repay such refund to the Governmental
Authority. Notwithstanding anything herein to the contrary, no Recipient shall be required to pay
any amount to Borrowers if such payment would place the Recipient in a less favorable net after-Tax
position than it would have been in if the Tax subject to indemnification and giving rise to such
refund had not been deducted, withheld or otherwise imposed and the indemnification payments or
additional amounts with respect to such Tax had never been paid. In no event shall Agent or any
Recipient be required to make its tax returns (or any other information relating to its taxes that
it deems confidential) available to any Obligor or other Person.
Each partys obligations under Sections 5.9 and 5.10 shall survive the resignation or
replacement of Agent or any assignment of rights by or replacement of a Lender or Issuing Bank, the
termination of the Commitments, and the repayment, satisfaction, discharge or Full Payment of any
Obligations.
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5.10 |
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Lender Tax Information5.10.1 Status of Lenders |
Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect
to payments of Obligations shall deliver to Borrowers and Agent, at the time or times reasonably
requested by Borrowers or Agent, properly completed and executed documentation reasonably requested
by Borrowers or Agent as will permit such payments to be made without withholding or at a reduced
rate of withholding. In addition, any Lender, if reasonably requested by Borrowers or Agent, shall
deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrowers
or Agent to enable them to determine whether such Lender is subject to backup withholding or
information reporting requirements. Notwithstanding the foregoing, such documentation (other than
documentation described in Sections 5.10.2(a), (b) and (d)) shall not be required if a Lender
reasonably believes delivery of the documentation would subject it to any material unreimbursed
cost or expense or would materially prejudice its legal or commercial position.
Without limiting the foregoing, if any Borrower is a U.S. Person,
(a) Any Lender that is a U.S. Person shall deliver to Borrowers and Agent on or prior to the
date on which such Lender becomes a Lender hereunder (and from time to time thereafter upon
reasonable request of Borrowers or Agent), executed originals of IRS Form W-9, certifying that such
Lender is exempt from U.S. federal backup withholding Tax;
(b) Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to
Borrowers and Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender hereunder (and from time to time
thereafter upon reasonable request of Borrowers or Agent), whichever of the following is
applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the
United States is a party, (x) with respect to payments of interest under any Loan Document,
executed originals of IRS Form W-8BEN or W-8BEN-E establishing an exemption from or reduction of
U.S. federal withholding Tax pursuant to the interest article of such tax treaty, and (y) with
respect to other payments under the Loan Documents, IRS Form W-8BEN or W-8BEN-E establishing an
exemption from or reduction of U.S. federal withholding Tax pursuant to the business profits or
other income article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) a certificate in form satisfactory to Agent to the
effect that such Foreign Lender is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, a 10 percent shareholder of a Borrower within the meaning of Section 881(c)(3)(B) of the
Code, or a controlled foreign corporation described in Section 881(c)(3)(C) of the Code
(U.S. Tax Compliance Certificate), and (y) executed originals of IRS Form W-8BEN or
W-8BEN-E; or
(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS
Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance
Certificate in form satisfactory to Agent, IRS Form W-9, and/or other certification documents from
each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership
and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio
interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of
each such direct and indirect partner;
(c) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to
Borrowers and Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender hereunder (and from time to time
thereafter upon the reasonable request of Borrowers or Agent), executed originals of any other form
prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be
prescribed by Applicable Law to permit Borrowers or Agent to determine the withholding or deduction
required to be made; and
(d) if payment of an Obligation to a Lender would be subject to U.S. federal withholding Tax
imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code), such Lender shall
deliver to Borrowers and Agent at the time(s) prescribed by law and otherwise as reasonably
requested by Borrowers or Agent such documentation prescribed by Applicable Law (including Section
1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrowers
or Agent as may be necessary for them to comply with their obligations under FATCA and to determine
that such Lender has complied with its obligations under FATCA or to determine the amount to deduct
and withhold from such payment. Solely for purposes of this clause (d), FATCA shall include any
amendments made to FATCA after the date of this Agreement.
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5.10.3 |
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Redelivery of Documentation |
If any form or certification previously delivered by a Lender pursuant to this Section expires
or becomes obsolete or inaccurate in any respect, such Lender shall promptly update the form or
certification or notify Borrowers and Agent in writing of its legal inability to do so.
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5.11 |
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Guaranty; Nature and Extent of Liability. |
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5.11.1 |
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Guaranty; Joint and Several Liability |
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Each Obligor agrees that it is jointly and severally liable for, and absolutely and
unconditionally guarantees to Agent and Lenders, the prompt payment and performance of all
Obligations, except its Excluded Swap Obligations. Each Obligor agrees that all of the Obligations
shall be the joint and several obligations of each Obligor without preferences or distinction among
them. If and to the extent that any Obligor shall fail to make any payment with respect to any of
the Obligations as and when due or to perform any of the Obligations in accordance with the terms
thereof, then in each such event the other Obligors will make such payment with respect to, or
perform, such Obligation until the Full Payment of the Obligations. Each Obligor agrees that its
guaranty obligations hereunder constitute a continuing guaranty of payment and performance and not
of collection, that such obligations shall not be discharged until Full Payment of the Obligations,
and that such guaranty obligations are absolute and unconditional, irrespective of, and will not be
discharged, impaired, or affected by: (a) the genuineness, validity, regularity, enforceability,
subordination or any future modification of, or change in, any Obligations or Loan Document, or any
other document, instrument or agreement to which any Obligor is or may become a party or be bound,
or the power or authority or lack thereof of any other Obligor to incur its Obligations; (b) the
absence of any action to enforce this Agreement (including this Section) or any other Loan
Document, or any waiver, consent or indulgence of any kind by Agent or any Lender with respect
thereto; (c) the existence, value or condition of, or failure to perfect a Lien or to preserve
rights against, any security or guaranty for any Obligations or any action, or the absence of any
action, by Agent or any Lender in respect thereof (including the release of any security or
guaranty); (d) the insolvency of any Obligor; (e) any election by Agent or any Lender in an
Insolvency Proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code; (f) any
borrowing by any Borrower or grant of a Lien by any Obligor, as debtor-in-possession under Section
364 of the Bankruptcy Code or otherwise; (g) the disallowance of any claims of Agent or any Lender
against any Obligor for the repayment of any Obligations under Section 502 of the Bankruptcy Code
or otherwise; (h) any payment of the Obligations at any time or from time to time, except Payment
in Full of the Obligations; (i) the existence or non-existence of any Obligor as a legal entity;
(j) any transfer by any Obligor of all or any part of any Collateral; (k) any statute of
limitations affecting the liability of any other Obligor hereunder or under any of the other Loan
Documents or the ability of Agent or any Lender to enforce this Agreement, this Section 5.11, or
any other provision of any Loan Document; (l) any right of offset, counterclaim or defense of any
Obligor, including those that have been waived by the Obligors pursuant to this Section 5.11;
(m) any other action or circumstances that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, including any failure strictly or diligently to
assert any right or to pursue any remedy or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this Section 5.11 afford grounds for
terminating, discharging or relieving any Obligor, in whole or in part, from any of its Obligations
under this Section 5.11. Each Obligor represents and warrants to Agent and each Lender that such
Obligor is currently informed of the financial condition of the other Obligors and of all other
circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of
the Obligations. Each Obligor further represents and warrants to Agent and each Lender that such
Obligor has read and understands the terms and conditions of the Loan Documents. Each Obligor
hereby covenants that such Obligor will continue to keep informed of the Obligors financial
condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance
of the Obligations. If at any time, any payment, or any part thereof, made in respect of any of
the Obligations, is rescinded or must otherwise be restored or returned by Agent or any Lender upon
the insolvency, bankruptcy or reorganization of any Obligor, or otherwise, the provisions of this
Section 5.11 will forthwith be reinstated in effect, as though such payment had not been made.
Each Obligor hereby agrees that after the occurrence and during the continuance of any Default or
Event of Default, such Obligor will not demand, sue for or otherwise attempt to collect any
indebtedness of any other Obligor owing to such Obligor until the Obligations shall have been
repaid in full in cash. If, notwithstanding the foregoing sentence, such Obligor shall collect,
enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected,
enforced and received by such Obligor as trustee for Agent, and such Obligor shall deliver any such
amounts to Agent for application to the Obligations.
Except as otherwise expressly provided by this Agreement, Agent and Lenders may from time to
time, in their sole discretion and without notice to any Obligor, take any or all of the following
actions: (a) retain or obtain Liens in any assets of any other Obligor or any other Person, with
the agreement of such other Obligor or other Person, to secure any of the Obligations; (b) retain
or obtain the primary or secondary obligation of any obligor or obligors, in addition to the
Obligors, with respect to any of the Obligations; (c) extend or renew for one or more periods
(whether or not longer than the original period), or, with the agreement of the Obligors, alter or
exchange any of the Obligations; (d) waive, ignore, or forbear from taking action or otherwise
exercising any of its default rights or remedies with respect to any default by the Obligors under
the Loan Documents; (e) release, waive, or compromise any obligation of the Obligors hereunder or
any obligation of any nature of any other obligor primarily or secondarily obligated with respect
to any of the Obligations; (f) release Agents Liens in, or surrender, release or permit any
substitution or exchange for, all or any part of the Collateral now or hereafter securing any of
the Obligations or any obligation hereunder, or extend or renew for one or more periods (whether or
not longer than the original period) or release, waive, compromise, alter or exchange any
obligations of any nature of any Obligor with respect to any such property; and (g) demand payment
or performance of any of the Obligations from any Obligor at any time or from time to time, whether
or not Agent or any Lender has exercised any of its rights or remedies with respect to any property
securing any of the Obligations or any obligation hereunder or proceeded against any other Obligor
or other Person primarily or secondarily liable for payment or performance of any of the
Obligations.
(a) Each Obligor expressly waives, to the extent not prohibited by Applicable Law, and except
to the extent otherwise expressly required pursuant to this Agreement or any other Loan Document:
(i) notice of acceptance by Agent or any Lender; (ii) notice of the existence, creation, payment,
nonpayment, performance or nonperformance of all or any of the Obligations; (iii) notice of the
occurrence of any Default or Event of Default, (iv) presentment, demand, notice of dishonor,
protest, notice of protest and all other notices whatsoever with respect to the payment or
performance of the Obligations or the amount thereof or any payment or performance by the Obligors
hereunder; (v) notice of any extension or postponement of the time for the payment of any of the
Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by Agent or any Lender at any
time or times in respect of any default by any Obligor in the performance or satisfaction of any
term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever
by Agent or any Lender in respect of any of the Obligations, and the taking, addition, substitution
or release, in whole or in part, at any time or times, of any security for any of the Obligations
or the addition, substitution or release, in whole or in part, of any Obligor, (vi) all diligence
in collection or protection of or realization upon the Obligations or any thereof, any obligation
hereunder or any security for or guaranty of any of the foregoing; (vii) any right to direct or
affect the manner or timing of Agents or any Lenders enforcement of its rights or remedies; and
(viii) any and all defenses that would otherwise arise upon the occurrence of any event or
contingency described in Section 5.11.1 or Section 5.11.2 hereof or upon the taking of any action
by Agent or any Lender permitted hereunder.
(b) Each Obligor expressly waives all rights that it may have now or in the future under any
statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to
proceed against any other Obligor, other Person or security for the payment or performance of any
Obligations before, or as a condition to, proceeding against such Obligor. Each Obligor waives all
defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment of
Obligations and waives, to the maximum extent permitted by law, any right to revoke any guaranty of
Obligations as long as it is an Obligor. It is agreed among the Obligors, Agent and Lenders that
the provisions of this Section 5.11 are of the essence of the transaction contemplated by the Loan
Documents and that, but for such provisions, Agent and Lenders would decline to make Loans and
issue Letters of Credit. Each Obligor acknowledges that its guaranty pursuant to this Section is
necessary to the conduct and promotion of its business, and can be expected to benefit such
business.
(c) Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem
appropriate, including realization upon Collateral by judicial foreclosure or nonjudicial sale or
enforcement, without affecting any rights and remedies under this Section 5.11. If, in taking any
action in connection with the exercise of any rights or remedies, Agent or any Lender shall forfeit
any other rights or remedies, including the right to enter a deficiency judgment against any
Obligor or other Person, whether because of any Applicable Laws pertaining to election of
remedies or otherwise, each Obligor consents to such action and waives any claim based upon it,
even if the action may result in loss of any rights of subrogation that such Obligor might
otherwise have had. Any election of remedies that results in denial or impairment of the right of
Agent or any Lender to seek a deficiency judgment against any Obligor shall not impair any other
Obligors obligation to pay the full amount of the Obligations. Agent may bid Obligations, in
whole or part, at any foreclosure, trustee or other sale and the amount of such bid need not be
paid by Agent but shall be credited against the Obligations. The amount of the successful bid at
any such sale, whether Agent or any other Person is the successful bidder, shall be conclusively
deemed to be the fair market value of the Collateral, and the difference between such bid amount
and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the
Obligations guaranteed under this Section 5.11, notwithstanding that any present or future law or
court decision may have the effect of reducing the amount of any deficiency claim to which Agent or
any Lender might otherwise be entitled but for such bidding at any such sale.
(d) Each Obligor waives all rights and defenses that such Obligor may have because any of the
Obligations may after the date of this Agreement become secured by real property. This means,
among other things: (i) Agent or any Lender may collect from any Obligor without first foreclosing
on any real or personal property collateral pledged by the other Obligors; and (ii) if Agent or any
Lender forecloses on any real property collateral pledged by the other Obligors: (A) the amount of
the Obligations may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and (B) Agent or any
Lender may collect from any Obligor even if such Agent or Lender, by foreclosing on the real
property collateral, has destroyed any right any Obligor may have to collect from any other
Obligor. This is an unconditional and irrevocable waiver of any rights and defenses any Obligor
may have because any of the Obligations may become, after the date of this Agreement, secured by
real property. These rights and defenses include, but are not limited to, any rights or defenses
based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure. Without
limiting the foregoing, each Obligor waives all rights and defenses arising out of an election of
remedies by Agent or any Lender, even though that election of remedies, such as a non-judicial
foreclosure with respect to security for a guaranteed obligation, has destroyed such Obligors
rights of subrogation and reimbursement against any other Person, including such Obligors rights
of subrogation and reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure.
(e) Each Obligor understands and acknowledges that if Lender forecloses judicially or
nonjudicially against any real property security for the Obligations, that foreclosure could impair
or destroy any ability that such Obligor may have to seek reimbursement, contribution, or
indemnification from any other Obligor or others based on any right such Obligor may have of
subrogation, reimbursement, contribution, or indemnification for any amounts paid by such Obligor
under this Agreement. Each Obligor further understands and acknowledges that in the absence of
this paragraph, such potential impairment or destruction of such Obligors rights, if any, may
entitle such Obligor to assert a defense to this Agreement based on Section 580d of the California
Code of Civil Procedure as interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968). By
executing this Agreement, each Obligor freely, irrevocably, and unconditionally: (i) waives and
relinquishes that defense and agrees that such Obligor will be fully liable under this Agreement
even though Lender may foreclose, either by judicial foreclosure or by exercise of power of sale,
any deed of trust securing the Obligations; (ii) agrees that such Obligor will not assert that
defense in any action or proceeding which Lender may commence to enforce this Agreement;
(iii) acknowledges and agrees that the rights and defenses waived by Lender in this Agreement
include any right or defense that Lender may have or be entitled to assert based upon or arising
out of any one or more of Sections 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure or Section 2848 of the California Civil Code or any similar laws of any other applicable
jurisdiction; and (iv) acknowledges and agrees that Lender is relying on this waiver in creating
the Obligations, and that this waiver is a material part of the consideration which Lender is
receiving for creating the Obligations.
(f) Each Obligor waives any right or defense it may have at law or equity, including
California Code of Civil Procedure Section 580a, to a fair market value hearing or action to
determine a deficiency judgment after a foreclosure.
(g) Each Obligor waives all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become available to the Guarantors
by reason of Sections 2787 to 2855, inclusive, 2899, and 3433 of the California Code of Civil
Procedure or any similar laws of any other jurisdiction.
(h) As provided in Section 14.14, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York. To the extent the foregoing provisions of this
Section 5.11.3 refer to California law, such references have been included in this Agreement out of
an abundance of caution, and the inclusion of such provisions shall not be deemed to affect or
limit in any way the choice of New York law by the parties hereto.
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5.11.4 |
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Extent of Liability; Contribution. |
(a) Notwithstanding anything herein to the contrary, each Obligors liability under this
Section 5.11 shall not exceed the greater of (i) all amounts for which such Obligor is primarily
liable, as described in clause (c) below, and (ii) such Obligors Allocable Amount.
(b) If any Obligor makes a payment under this Section 5.11 of any Obligations (other than
amounts for which such Obligor is primarily liable) (a Guarantor Payment) that, taking into
account all other Guarantor Payments previously or concurrently made by any other Obligor, exceeds
the amount that such Obligor would otherwise have paid if each Obligor had paid the aggregate
Obligations satisfied by such Guarantor Payments in the same proportion that such Obligors
Allocable Amount bore to the total Allocable Amounts of all Obligors, then such Obligor shall be
entitled to receive contribution and indemnification payments from, and to be reimbursed by, each
other Obligor for the amount of such excess, ratably based on their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment. The Allocable Amount for any Obligor shall
be the maximum amount that could then be recovered from such Obligor under this Section 5.11
without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any
applicable state fraudulent transfer or conveyance act, or similar statute or common law.
(c) Section 5.11.4(a) shall not limit the liability of any Obligor to pay or guarantee Loans
made directly or indirectly to it (including Loans advanced hereunder to any other Person and then
re-loaned or otherwise transferred to, or for the benefit of, such Obligor), LC Obligations
relating to Letters of Credit issued to support its business, Secured Bank Product Obligations
incurred to support its business, and all accrued interest, fees, expenses and other related
Obligations with respect thereto, for which such Obligor shall be primarily liable for all purposes
hereunder. Agent and Lenders shall have the right, at any time in their discretion, to condition
Loans and Letters of Credit upon a separate calculation of borrowing availability for each Obligor
and to restrict the disbursement and use of Loans and Letters of Credit to an Obligor based on that
calculation.
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5.11.5 |
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Qualified ECP and Swap Obligations. |
Each Obligor that is a Qualified ECP when its guaranty of or grant of Lien as security for a
Swap Obligation becomes effective hereby jointly and severally, absolutely, unconditionally and
irrevocably undertakes to provide funds or other support to each Specified Obligor with respect to
such Swap Obligation as may be needed by such Specified Obligor from time to time to honor all of
its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case,
only up to the maximum amount of such liability that can be hereby incurred without rendering such
Qualified ECPs obligations and undertakings under this Section 5.11 voidable under any applicable
fraudulent transfer or conveyance act). The obligations and undertakings of each Qualified ECP
under this Section shall remain in full force and effect until Full Payment of the Obligations.
Each Obligor intends this Section to constitute, and this Section shall be deemed to constitute, a
guarantee of the obligations of, and a keepwell, support or other agreement for the benefit of,
each Obligor for all purposes of the Commodity Exchange Act.
Each Obligor has requested that Agent and Lenders make this credit facility available to
Borrowers on a combined basis, in order to finance Obligors business most efficiently and
economically. Obligors business is a mutual and collective enterprise, and the successful
operation of each Obligor is dependent upon the successful performance of the integrated group.
Obligors believe that consolidation of their credit facility will enhance the borrowing power of
each Obligor and ease administration of the facility, all to their mutual advantage. Obligors
acknowledge that Agents and Lenders willingness to extend credit and to administer the Collateral
on a combined basis hereunder is done solely as an accommodation to Obligors and at Obligors
request.
Each Obligor hereby irrevocably subordinates any claims, including any rights at law or in
equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification or set
off, that it may have at any time against any other Obligor, howsoever arising, to the Full Payment
of the Obligations.
No Obligor will exercise any rights that such Obligor may acquire by way of subrogation under
this Section 5.11, by any payment hereunder or otherwise, until Full Payment of the Obligations.
If any amount shall be paid to any Obligor on account of such subrogation rights at any other time,
such amount shall be held in trust for the benefit of Agent and shall be forthwith paid to Agent to
be credited and applied to the Obligations, whether matured or unmatured, in such order as provided
for in this Agreement. Notwithstanding anything to the contrary contained herein, no Obligor may
exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights
against, and may not proceed or seek recourse against or with respect to any property or asset of,
any other Obligor, including after Full Payment of the Obligations, if all or any portion of the
Obligations have been satisfied in connection with an exercise of remedies in respect of the Equity
Interests of such other Obligor, whether pursuant to this Agreement or otherwise.
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5.11.9 |
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Independent Obligations. |
The obligations of each Obligor hereunder are those of primary obligor, and not merely as
surety, and are independent of the Obligations and the obligations of any other Obligor, and a
separate action may be brought against any Obligor to enforce its guaranty hereunder, whether or
not any Borrower or any other Obligor or any other person or entity is joined as a party.
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5.11.10 |
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Stay of Acceleration. |
If acceleration of the time for payment of any of the Obligations is stayed, in connection
with any case commenced by or against any Obligor under any Insolvency Proceeding, or otherwise,
all such amounts shall nonetheless be payable by such Obligor immediately upon demand by Agent or
any Lender.
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SECTION 6.
6.1
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CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT
Conditions Precedent to Initial Loans |
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In addition to the conditions set forth in Section 6.2, Lenders shall not be required to make
the initial extensions of credit to Borrowers hereunder until the date (Closing
Date) that each of the following conditions has been satisfied:
(a) Each Loan Document shall have been duly executed and delivered to Agent by each of the
signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary to
perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence
satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted
Liens.
(c) Agent shall have received certificates, in form and substance satisfactory to it, from a
knowledgeable Senior Officer of each Borrower certifying that, after giving effect to the initial
Loans and transactions hereunder, (i) such Borrower is Solvent; (ii) no Default or Event of Default
exists; (iii) the representations and warranties set forth in Section 9 are true and correct in all
material respects (except that any representation and warranty that is qualified as to
materiality or Material Adverse Effect shall be true and correct in all respects) as of the
Closing Date, except to the extent that such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct in all material respects (except that
any representation and warranty that is qualified as to materiality or Material Adverse Effect
shall be true and correct in all respects) as of such earlier date; and (iv) such Borrower has
complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(d) Agent shall have received a certificate of a duly authorized officer of each Obligor,
certifying (i) that attached copies of such Obligors Organic Documents are true and complete, and
in full force and effect, without amendment except as shown; (ii) that an attached copy of
resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that
such resolutions are in full force and effect, were duly adopted, have not been amended, modified
or revoked, and constitute all resolutions adopted with respect to this credit facility; and
(iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent
may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor
in writing.
(e) Agent shall have received a written opinion of Sheppard, Mullin, Richter & Hampton LLP, as
well as any local counsel to Borrowers or Agent, in form and substance reasonably satisfactory to
Agent.
(f) Agent shall have received copies of the charter documents of each Obligor, certified by
the Secretary of State or other appropriate official of such Obligors jurisdiction of
organization. Agent shall have received good standing certificates for each Obligor, issued by the
Secretary of State or other appropriate official of such Obligors jurisdiction of organization and
each jurisdiction where such Obligors conduct of business or ownership of Property necessitates
qualification.
(g) Agent shall have received copies of policies, certificates of insurance and endorsements
(including additional insured and lenders loss payable endorsements) for the insurance policies
carried by the Obligors, all in compliance with the Loan Documents.
(h) Agent shall have completed its business, financial and legal due diligence of Obligors,
including a roll-forward of its previous field examination, with results reasonably satisfactory to
Agent. No material adverse change in the financial condition of the Obligors, taken as a whole, or
in the quality, quantity or value of the Collateral, taken as a whole, shall have occurred since
December 31, 2014;
(i) Borrowers shall have paid all fees and expenses due to Agent and Lenders on the Closing
Date.
(j) Agent shall have received a Borrowing Base Report as of March 31, 2015. Upon giving
effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by
Borrowers of all fees and expenses incurred in connection herewith as well as any payables
stretched beyond their customary payment practices, Availability shall be at least $50,000,000.
(k) Agent shall have received a Lien Waiver from HF Logistics-SKX T1, LLC (or its successor as
landlord prior to the Closing Date, if any) with respect to the leased premises commonly known as
29800 Eucalyptus Avenue, Moreno Valley, California 92555.
(l) Agent shall have received a Lien Waiver from OHL International, as the Borrowers customs
broker.
(m) All (i) corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated hereby shall be satisfactory in form and
substance to Agent and its counsel, and (ii) documents, instruments and agreements required to be
delivered by or on behalf of the Obligors pursuant to the closing checklist provided by Agents
counsel in connection with this Agreement shall be delivered in form and substance satisfactory to
Agent and its counsel.
6.2 Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and Lenders shall
not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other
accommodation to or for the benefit of Borrowers, unless the following conditions are satisfied:
(a) No Default or Event of Default shall exist at the time of, or result from, such funding,
issuance or grant;
(b) The representations and warranties of each Obligor in the Loan Documents shall be true and
correct in all material respects (except that any representation and warranty that is qualified as
to materiality or Material Adverse Effect shall be true and correct in all respects) on the
date of, and upon giving effect to, such funding, issuance or grant (except for representations and
warranties that expressly relate to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects (except that any representation and
warranty that is qualified as to materiality or Material Adverse Effect shall be true and
correct in all respects) as of such earlier date);
(c) No event shall have occurred or circumstance exist that has or could reasonably be
expected to have a Material Adverse Effect; and
(d) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied.
(e) Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter
of Credit or grant of an accommodation shall constitute a representation by Borrowers that the
foregoing conditions are satisfied on the date of such request and on the date of such funding,
issuance or grant.
6.3 Conditions Subsequent. Agent, Issuing Bank and Lenders shall not be required to fund
any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation to or for
the benefit of Borrowers, unless the following conditions are satisfied on or before the date
applicable thereto (and the failure by Borrowers to so satisfy or cause such conditions to be
satisfied as and when required by the provisions of this Section 6.3 shall constitute an immediate
Event of Default):
(a) Within 30 days of the Closing Date, Borrowers shall have established a Dominion Account
and related lockbox at Bank of America;
(b) Within 120 days of the Closing Date, Borrowers shall have either closed or delivered a
Deposit Account Control Agreement with respect to (i) the lockbox account maintained with Wells
Fargo Bank, N.A. with an account number ending in 6192, and (ii) the lockbox maintained with CIT
Commercial Services with a P.O. Box number ending in 37989.
(c) Within 120 days of the Closing Date, Borrowers shall have closed all Deposit Accounts
(other than Excluded Accounts) that are not subject to a Deposit Account Control Agreement and all
Securities Accounts that are not subject to a Securities Account Control Agreement.
(d) Within 60 days of the Closing Date, Borrowers shall have delivered to Agent an original
executed stock certificate, evidencing 15,300 issued shares of Skechers (Thailand) Ltd. owned by
Skechers, together with an undated instrument of transfer covering such certificate duly executed
in blank by Skechers.
7.1 Grant of Security Interest. To secure the prompt payment and performance of its
Obligations, each Obligor hereby grants to Agent, for the benefit of Secured Parties, a continuing
security interest in and Lien upon all personal Property of such Obligor, including all of the
following Property, whether now owned or hereafter acquired, and wherever located (the
Collateral):
(a) all Accounts;
(b) all Chattel Paper, including electronic chattel paper;
(c) all Commercial Tort Claims, including those shown on Schedule 9.1.16;
(d) all Deposit Accounts;
(e) all Documents;
(f) all General Intangibles, including Intellectual Property;
(g) all Goods, including Inventory, Equipment and fixtures;
(h) all Instruments;
(i) all Investment Property and all Pledged Equity;
(j) all Letter-of-Credit Rights;
(k) all Securities Accounts;
(l) all Supporting Obligations;
(m) all monies, whether or not in the possession or under the control of Agent, a Lender, or a
bailee or Affiliate of Agent or a Lender, including any Cash Collateral;
(n) all accessions to, substitutions for, and all replacements, products, and cash and
non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to
insurance policies, and claims against any Person for loss, damage or destruction of any
Collateral; and
(o) all books and records (including customer lists, files, correspondence, tapes, computer
programs, print-outs and computer records) pertaining to the foregoing;
provided, however, that notwithstanding anything contained in this Agreement to the
contrary, the term Collateral shall not include, and the security interest created by this
Agreement shall not extend to, the following (the Excluded Assets): (i)(A) the Equity
Interests of any Foreign Subsidiary that is not a first tier Foreign Subsidiary of an Obligor, and
(B) the voting stock of any CFC solely to the extent that such voting stock represents more than
65% of the outstanding voting stock of such CFC; provided, that the foregoing exclusion in
clause (B) shall, with respect to any Foreign Subsidiary that is a CFC at the time of grant of such
pledge or hypothecation, automatically cease to apply at any time such Foreign Subsidiary is no
longer a CFC, (ii) any rights or interest in any contract, lease, permit, license, or license
agreement covering real or personal Property of any Obligor if under the terms of such contract,
lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of
a security interest or lien therein is prohibited, would constitute a breach or default thereunder,
would result in the termination thereof, or would require the consent of any non-Obligor party
thereto and such applicable prohibition or restriction has not been waived or the consent of the
other party to such contract, lease, permit, license, or license agreement has not been obtained,
(iii) any rights or interests in any governmental licenses or state or local franchises, charters,
and authorizations of any Obligor if under the terms of such licenses, franchises, charters or
authorizations, or applicable law with respect thereto, the grant of a security interest or lien
therein is prohibited, would constitute a breach or default thereunder, would result in the
termination thereof, or would require the consent of any non-Obligor party thereto and such
applicable prohibition or restriction has not been waived or the consent of the other party to such
licenses, franchises, charters, or authorizations has not been obtained, (iv) to the extent
prohibited by the terms of any applicable Organic Documents, including joint venture agreements or
shareholders agreements, Equity Interests in any joint venture or non-wholly owned Subsidiary of
Borrowers and such prohibition has not been waived or the consent of the requisite parties to such
documents has not been obtained; provided that such prohibition is a general prohibition on
the granting of a Lien in any Equity Interests held by any shareholder or joint-venturer and was
not created in contemplation of this Agreement, (v) any personal property (including property
acquired through acquisition or merger of another entity) if the granting of a security interest
therein or the pledge thereof is prohibited by any License (including the Star Wars License),
contract or other agreement (including that certain Master Loan and Security Agreement dated as of
December 29, 2010 by and among Skechers, Banc of America Leasing & Capital, LLC and Bank of Utah),
to the extent and for so long as such License, contract or other agreement prohibits such security
interest or pledge (so long as such prohibition is not incurred in contemplation of this Agreement
or such acquisition) (provided, that, (A) the foregoing exclusions of clauses (ii), (iii),
(iv) or (v) shall in no way be construed (1) other than with respect to the Star Wars License (as
to the Star Wars License itself, any Intellectual Property of third parties licensed to the
Obligors thereunder and any Inventory that is subject to the Star Wars License) to apply to the
extent that any described prohibition or restriction is ineffective under Section 9-406, 9-407,
9-408, or 9-409 of the UCC or other applicable law, or (2) to apply to the extent that any consent
or waiver has been obtained that would permit Agents security interest or lien to attach
notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit,
license, or license agreement, and (B) the foregoing exclusions of clauses (i), (ii), (iii), (iv),
and (v) shall in no way be construed to limit, impair, or otherwise affect any of Agents, any
Lenders or any other Secured Partys continuing security interests in and liens upon any rights or
interests of any Obligor in or to (1) monies due or to become due under or in connection with any
described contract, lease, permit, license, license agreement, licenses, franchises, charters,
authorizations, or Equity Interests (including any Accounts or Equity Interests), or (2) any
proceeds (including Accounts) arising from the sale, license, lease, or other dispositions of any
such contract, lease, permit, license, license agreement, licenses, franchises, charters,
authorizations, Equity Interests, or Inventory that is subject to the Star Wars License), (vi) any
United States intent-to-use trademark applications to the extent that, and solely during the period
in which, the grant of a security interest therein would impair the validity or enforceability of
such intent-to-use trademark applications under applicable federal law, provided that upon
submission and acceptance by the United States Patent and Trademark Office of an amendment to
allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use
trademark application shall be considered Collateral, (vii) Equipment or other fixed assets, all
parts, attachments, accessories, accessions, substitutions or replacements thereto and proceeds
thereof that are the subject of Permitted Purchase Money Debt or Purchase Money Debt Incurred
permitted pursuant to Section 10.2.1, to the extent the granting of a security interest hereunder
is prohibited by the documents evidencing such Debt and such prohibition has not been waived or the
consent of the other party to such documents has not been obtained; provided, that the
foregoing exclusions of this clause (vii) shall in no way be construed (1) to apply to the extent
that any described prohibition or restriction is unenforceable under the UCC or other applicable
law, or (2) to apply to the extent that any consent or waiver has been obtained that would permit
Agents security interest or Lien notwithstanding the prohibition, (viii) any Margin Stock, or
(ix) any Real Estate; provided, further, that Excluded Assets shall not include any
Proceeds, substitutions or replacements of any Excluded Assets referred to in any of clauses
(i) through (ix) above to the extent such Proceeds, substitutions or replacements are not and do
not, in and of themselves, constitute Excluded Assets.
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7.2 |
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Lien on Deposit Accounts and Securities Accounts; Cash Collateral. |
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7.2.1 |
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Deposit Accounts and Securities Accounts |
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To further secure the prompt payment and performance of its Obligations, each Obligor hereby
grants to Agent a continuing security interest in and Lien upon all amounts credited to any Deposit
Account or Securities Account of such Obligor, including sums in any blocked, lockbox, sweep or
collection account. Each Obligor hereby authorizes and directs each bank or other depository to
deliver to Agent, upon request, all balances in any Deposit Account or Securities Account
maintained for such Obligor, without inquiry into the authority or right of Agent to make such
request.
At the request and direction of the applicable Obligor, Cash Collateral may be invested, at
Agents discretion, but Agent shall have no duty to do so, regardless of any agreement or course of
dealing with any Borrower, and shall have no responsibility for any investment or loss with respect
to any investment made in accordance with the foregoing. As security for its Obligations, each
Obligor hereby grants to Agent a security interest in and Lien upon all Cash Collateral held from
time to time and all proceeds thereof, whether held in a Cash Collateral Account or otherwise.
Agent may apply Cash Collateral to the payment of such Obligations as they become due, in such
order as Agent may elect. Each Cash Collateral Account and all Cash Collateral shall be under the
sole dominion and control of Agent, and no Borrower or any other Person shall have any right to any
Cash Collateral, until Full Payment of the Obligations.
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7.3 |
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Pledged Collateral. |
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7.3.1 |
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Pledged Equity. |
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(a) Schedule 7.3 lists all Investment Property and Pledged Equity owned by any Obligor. Such
Obligor is the record and beneficial owner of, and has good and marketable title to, the Investment
Property and Pledged Equity pledged by it hereunder, free of any and all Liens or options in favor
of, or claims of, any other Person, except Permitted Liens.
(b) Except as set forth on Schedule 7.3, the Pledged Equity pledged by each Obligor hereunder
constitutes all the issued and outstanding Equity Interests of all classes of Equity Interests of
each Issuer owned by such Obligor.
(c) Except as set forth on Schedule 7.3, all Pledged Equity has been duly and validly issued
and is fully paid and nonassessable.
7.3.2 CovenantsAs long as any Commitments or Obligations are outstanding, each Obligor
shall:
(a) If such Obligor shall become entitled to receive or shall receive any certificate, option
or right in respect of the equity interests of any Issuer, whether in addition to, in substitution
of, as a conversion of, or in exchange for, any of the Pledged Equity, or otherwise in respect
thereof, such Obligor shall accept the same as the agent of Agent for the ratable benefit of the
Secured Parties, hold the same in trust for Agent for the ratable benefit of the Secured Parties
and deliver the same forthwith to Agent in the exact form received, duly indorsed by such Obligor
to Agent, if required, together with an undated instrument of transfer covering such certificate
duly executed in blank by such Obligor and with, if Agent so requests, signature guarantied, to be
held by Agent, subject to the terms hereof, as additional Collateral for the Obligations. Upon the
occurrence and during the continuance of an Event of Default, (i) any sums paid upon or in respect
of the Investment Property (other than Excluded Assets) or Pledged Equity upon the liquidation or
dissolution of any Issuer shall be paid over to Agent to be held by it hereunder as additional
Collateral for the Obligations, and (ii) in case any distribution of capital shall be made on or in
respect of the Investment Property (other than Excluded Assets) or Pledged Equity or any property
shall be distributed upon or with respect to the Investment Property (other than Excluded
Assets) or Pledged Equity pursuant to the recapitalization or reclassification of the capital of
any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless
otherwise subject to a perfected Lien in favor of Agent, be delivered to Agent to be held by it
hereunder as additional Collateral for the Obligations. Upon the occurrence and during the
continuance of an Event of Default, if any sums of money or property so paid or distributed in
respect of the Investment Property (other than Excluded Assets) or Pledged Equity shall be received
by such Obligor, such Obligor shall, until such money or property is paid or delivered to Agent,
hold such money or property in trust for Agent for the ratable benefit of the Secured Parties,
segregated from other funds of such Obligor, as additional Collateral for the Obligations.
(b) Without the prior written consent of Agent, such Obligor will not (i) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect to, any Pledged
Equity or proceeds thereof (except pursuant to a transaction expressly permitted hereunder),
(ii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Investment Property (other than Excluded Assets) or Pledged Equity or
proceeds thereof, or any interest therein, except for Permitted Liens, or (iii) enter into any
agreement or undertaking restricting the right or ability of such Obligor or Agent to sell, assign
or transfer any of the Investment Property (other than Excluded Assets) or Pledged Equity or
proceeds thereof,
(c) In the case of each Obligor which is an Issuer, such Obligor agrees that (i) it will be
bound by the terms of this Agreement relating to the Investment Property and Pledged Equity issued
by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will
notify Agent promptly in writing of the occurrence of any of the events described in Section
7.3.2(a) with respect to the Investment Property (other than Excluded Assets) and Pledged Equity
issued by it and (iii) the terms of Sections 7.3.3 shall apply to such Obligor with respect to all
actions that may be required of it pursuant to Section 7.3.3 regarding the Investment Property and
Pledged Equity issued by it.
(d) At any time and from time and to time, take such steps as Agent may reasonably request for
Agent to obtain control (as defined in the UCC) of any Investment Property (other than Excluded
Assets) and Pledged Equity with any agreements establishing control to be in form and substance
reasonably satisfactory to Agent.
(e) In addition, none of the operative agreements governing any of the Investment Property
(other than Excluded Assets) or Pledged Equity issued under any limited liability company operating
agreement or partnership agreement provides or shall provide that such Investment Property or
Pledged Equity constitutes securities governed by Article 8 of the Uniform Commercial Code as in
effect in any relevant jurisdiction; provided, however, that the such governing
agreements may provide that such Investment Property or Pledged Equity constitutes securities
governed by Article 8 of the applicable Uniform Commercial Code so long as the applicable Obligor
granting a Lien in such Investment Property or Pledged Equity provides Agent with (i) prior written
notice thereof and (ii) if such securities are certificated, delivery of such certificates, or if
such securities are not certificated, a control agreement with respect to such securities.
(a) Unless an Event of Default shall have occurred and be continuing and Agent shall have
given notice to the relevant Obligor of Agents intent to exercise its corresponding rights
pursuant to Section 7.3.3(b), each Obligor shall be permitted to receive all cash dividends and
distributions (other than dividends payable in Equity Interests) paid in respect of the Pledged
Equity or Investment Property to the extent permitted hereunder, and to exercise all voting and
corporate, limited liability company or other organizational rights with respect to the Pledged
Equity or Investment Property; provided, that no vote shall be cast or other right
exercised or action taken which could impair the Collateral or which would conflict with or result
in any violation of any provision of this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and Agent shall give notice of its
intent to exercise such rights to the relevant Obligor or Obligors, (i) Agent shall have the right
to receive any and all cash dividends and distributions, payments (including sums paid upon the
liquidation or dissolution of any Issuer or in connection with any distribution of capital) or
other proceeds paid in respect of the Investment Property and Pledged Equity and make application
thereof to the Obligations in such order as Agent may determine and (ii) any or all of the
Investment Property and Pledged Equity shall be registered in the name of Agent or its nominee, and
Agent or its nominee may thereafter exercise (x) all voting, corporate, limited liability company
and other rights pertaining to such Investment Property and Pledged Equity at any meeting of
holders of Equity Interests of the relevant Issuer or Issuers or otherwise and (y) any and all
rights of conversion, exchange and subscription and any other rights, privileges or options
pertaining to such Investment Property and Pledged Equity as if it were the absolute owner thereof
(including the right to exchange at its discretion any and all of the Investment Property and
Pledged Equity upon the merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate or other organizational structure of any Issuer, or upon the
exercise by any Obligor or Agent of any right, privilege or option pertaining to such Investment
Property and Pledged Equity, and in connection therewith, the right to deposit and deliver any and
all of the Investment Property and Pledged Equity with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as Agent may determine), all
without liability except to account for property actually received by it, but Agent shall have no
duty to any Obligor to exercise any such right, privilege or option and shall not be responsible
for any failure to do so or delay in so doing. If any sums of money paid or distributed in respect
of Investment Property or Pledged Equity, which Agent shall be entitled to receive pursuant to
clause (i) above, shall be received by an Obligor, such Obligor shall, until such money is paid to
Agent, hold such money in trust for Agent and the other Secured Parties as additional collateral
for the Obligations.
(c) Each Obligor hereby authorizes and instructs each Issuer of any Investment Property or
Pledged Equity pledged by any Obligor hereunder to (i) comply with any instruction received by it
from Agent in writing that (x) states that an Event of Default has occurred and is continuing and
(y) is otherwise in accordance with the terms of this Agreement, without any other or further
instructions from such Obligor, and each Obligor agrees that each Issuer shall be fully protected
in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends,
distributions or other payments with respect to the Investment Property or Pledged Equity directly
to Agent. Each Obligor that is an Issuer of any Investment Property or Pledged Equity pledged by
any Obligor hereunder hereby agrees that it will not recognize, acknowledge, or permit the pledge,
transfer, grant of control (within the meaning of the UCC), or other disposition of any
Investment Property or Pledged Equity pledged by any Obligor hereunder other than to, or as
requested by, Agent.
7.3.4 Additional InterestsIf any Obligor shall at any time acquire or hold any
additional Pledged Equity, including any Pledged Equity issued by any Issuer not listed on
Schedule 7.3 hereto which are required to be subject to a Lien pursuant to this Agreement by the
terms hereof (any such shares being referred to herein as the Additional Interests), such Obligor
shall deliver to Agent for the ratable benefit of the Secured Parties a supplement reaffirming and
acknowledging such Obligors grant of security interests in its Pledged Equity hereunder and
granting to Agent a security interest in such Additional Interests, such supplement to be in form
and substance reasonably acceptable to Agent and duly completed and executed by such Obligor. Each
Obligor shall comply with the requirements of this Section 7.3.4 concurrently with the acquisition
of any such Additional Interests; provided, however, that the failure to comply
with the provisions of this Section 7.3.4 shall not impair the Lien on Additional Interests
conferred hereunder.
7.3.5 Registration Rights(a) If, during the continuance of an Event of Default, Agent
shall determine to exercise its right to sell all or any of the Pledged Equity pursuant to Section
11.2, and if, in the opinion of Agent, it is necessary or advisable to have the Pledged Equity, or
that portion thereof to be sold, registered under the provisions of the Securities Act, the
relevant Obligor will cause the Issuer thereof to (i) execute and deliver, and cause the directors
and officers of such Issuer to execute and deliver, all such instruments and documents, and do or
cause to be done all such other acts as may be, in the opinion of Agent, necessary or advisable to
register the Pledged Equity, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use commercially reasonable efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of one year from the date
of the first public offering of the Pledged Equity, or that portion thereof to be sold, and
(iii) make all amendments thereto and/or to the related prospectus which, in the opinion of Agent,
are necessary or advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the SEC applicable thereto. Each Obligor agrees to cause such Issuer to
comply with the provisions of the securities or Blue Sky Laws of any and all jurisdictions which
Agent shall designate and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions of Section
11(a) of the Securities Act.
(b) Each Obligor recognizes that Agent may be unable to effect a public sale of any or all the
Pledged Equity, by reason of certain prohibitions contained in the Securities Act and applicable
state securities laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not with a view to the
distribution or resale thereof. Each Obligor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. Agent shall be under no obligation to delay a sale of
any of the Pledged Equity for the period of time necessary to permit the Issuer thereof to register
such securities or other interests for public sale under the Securities Act, or under applicable
state securities laws, even if such Issuer would agree to do so.
(c) Each Obligor agrees to use commercially reasonable efforts to do or cause to be done all
such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged
Equity pursuant to this Section 7.3.5 valid and binding and in compliance with any and all other
Applicable Laws. Each Obligor further agrees that a breach of any of the covenants contained in
this Section 7.3.5 will cause irreparable injury to the Secured Parties, that the Secured Parties
have no adequate remedy at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 7.3.5 may be specifically enforceable against such Obligor, and
such Obligor hereby waives, to the fullest extent permitted by Applicable Law, and agrees not to
assert, any defenses against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under this Agreement.
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7.4 |
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Other Collateral |
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7.4.1 |
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Commercial Tort Claims |
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Each Obligor shall promptly notify Agent in writing if such Obligor has a Commercial Tort
Claim (other than, as long as no Default or Event of Default exists, a Commercial Tort Claim for
less than $1,000,000), shall promptly amend Schedule 9.1.16 to include such claim, and shall take
such actions as Agent deems appropriate to subject such claim to a duly perfected, first priority
Lien in favor of Agent.
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7.4.2 |
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Certain After-Acquired Collateral |
Each Obligor shall promptly notify Agent in writing if, after the Closing Date, such Obligor
obtains any interest in any Collateral consisting of Deposit Accounts, Securities Accounts, Chattel
Paper, Documents, Instruments, Intellectual Property or Letter-of-Credit Rights and, upon Agents
request, shall promptly take such actions as Agent deems appropriate to effect Agents duly
perfected, first priority Lien upon such Collateral, including obtaining any appropriate
possession, control agreement or Lien Waiver; provided that (a) Lien Waivers will not be
required for any retail store location (it being acknowledged and agreed that Agent may in its
Permitted Discretion impose Rent and Charges Reserves), and (b) control agreements shall not be
required for Excluded Accounts. If any Collateral, other than Collateral which is in-transit or in
for repair or servicing, is in the possession of a Person other than an Obligor, Subsidiary of an
Obligor or Secured Party, then, at Agents request, the Obligors shall obtain an acknowledgment
that such third party holds such Collateral for the benefit of Agent.
7.5 Limitations. The Lien on Collateral granted hereunder is given as security only and
shall not subject Agent or any Lender to, or in any way modify, any obligation or liability of any
Obligor relating to any Collateral. In no event shall the grant of any Lien under any Loan
Document secure an Excluded Swap Obligation of the granting Obligor.
7.6 Further Assurances. All Liens granted to Agent under the Loan Documents are for the
benefit of Secured Parties. Promptly upon request, except to the extent otherwise expressly set
forth herein, Obligor shall deliver such instruments and agreements, and shall take such actions,
as Agent deems appropriate under Applicable Law to evidence or perfect its Lien on any Collateral,
or otherwise to give effect to the intent of this Agreement. Each Obligor authorizes Agent to file
any financing statement that describes the Collateral as all assets or all personal property of
such Obligor, or words to similar effect (it being understood that no such description shall be
deemed to amend, alter or otherwise modify the description of the Collateral set forth herein or
the description of the Excluded Assets), and ratifies any action taken by Agent before the Closing
Date to effect or perfect its Lien on any Collateral.
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SECTION 8. COLLATERAL ADMINISTRATION |
8.1 Borrowing Base Reports. On or before each Applicable Reporting Deadline, Borrowers
shall deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Report
as of the Applicable Reporting Date therefor. All information (including calculation of
Availability) in a Borrowing Base Report shall be prepared and certified by Borrowers (other than
the calculation of ineligible Accounts, which shall, unless otherwise agreed by Borrower Agent and
Agent, initially be calculated by Agent based on information available to Agent, including any
information provided to Agent pursuant to Section 8.2 below, but shall be subsequently reviewed and
certified by Borrowers). Agent may from time to time adjust any such report (a) due to
collections received in the Dominion Account; and (b) to the extent any information or calculation
does not comply with this Agreement; provided that any changes made by Agent which have not
been approved by Borrowers shall not be considered to have been certified by Borrowers.
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8.2 |
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Accounts. |
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8.2.1 |
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Records and Schedules of Accounts |
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Each Borrower shall keep accurate and complete records of its Accounts, including all payments
and collections thereon, and shall submit to Agent sales, collection, reconciliation and other
reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may request.
Each Borrower shall also provide to Agent, on or before the twentieth (20th) day after
the end of each fiscal quarter (or, while Availability is less than $100,000,000 or during any
Dominion Period, on or before the twentieth (20th) day after the end of each month), a
detailed aged trial balance of all Accounts as of the close of business of the most recently ended
fiscal quarter (or, while Availability is less than $100,000,000 or during any Dominion Period, as
of the close of business of the most recently ended month), specifying each Accounts Account
Debtor name and address, amount, invoice date and due date, showing any discount, allowance,
credit, authorized return or dispute, and including such proof of delivery, copies of invoices and
invoice registers, copies of related documents, repayment histories, status reports and other
information as Agent may reasonably request. If Accounts in an aggregate face amount of $5,000,000
or more cease to be Eligible Accounts, Borrowers shall notify Agent of such occurrence promptly
(and in any event within three Business Days) after Borrowers have knowledge thereof. Without
limiting the foregoing, upon Agents request Borrowers shall promptly (and in any event within
three Business Days) notify Agent of all Accounts included in the current Accounts Formula Amount
that have ceased to be Eligible Accounts.
To the extent not otherwise paid by Borrowers when due, if an Account of any Borrower includes
a charge for any Taxes, Agent is authorized, in its discretion, to pay the amount thereof to the
proper taxing authority for the account of such Borrower and to charge Borrowers therefor;
provided, however, that neither Agent nor Lenders shall be liable for any Taxes
that may be due from Borrowers or with respect to any Collateral.
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8.2.3 |
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Account Verification |
Whether or not a Default or Event of Default exists, Agent shall have the right at any time,
in the name of Agent, any designee of Agent or any Borrower, to verify the validity, amount or any
other matter relating to any Accounts of Borrowers by mail, telephone or otherwise;
provided, however, that unless an Event of Default exists, Agent shall provide
Borrowers not less than three Business Days prior written notice of such verifications and shall
consult with the Borrower Agent on the manner and method of verification (so as to minimize any
impact on Borrowers business operations). Borrowers shall cooperate fully with Agent in an effort
to facilitate and promptly conclude any such verification process.
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8.2.4 |
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Maintenance of Dominion Account |
Subject to Section 6.3, Borrowers shall maintain each Dominion Account pursuant to lockbox or
other arrangements acceptable to Agent in its Permitted Discretion. Subject to Section 6.3, each
Obligor shall obtain an agreement (in form and substance reasonably satisfactory to Agent) from
each lockbox servicer and Dominion Account bank, establishing Agents control over and Lien in the
lockbox or Dominion Account, which may be exercised by Agent during any Dominion Period, requiring
immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving
offset rights of such servicer or bank, except for customary exclusions thereto. If a Dominion
Account is not maintained with Bank of America, Agent may, during any Dominion Period, require
immediate transfer of all funds in such account to a Dominion Account maintained with Bank of
America. Agent and Lenders assume no responsibility to Obligors for any lockbox arrangement or
Dominion Account, including any claim of accord and satisfaction or release with respect to any
Payment Items accepted by any bank.
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8.2.5 |
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Proceeds of Collateral |
Borrowers shall request in writing and otherwise take all necessary steps to ensure that all
payments on Accounts are made directly to a Dominion Account (or a lockbox relating to a Dominion
Account). Except for funds received in Retail Deposit Accounts in the Ordinary Course of Business,
if any Obligor or Subsidiary receives cash or Payment Items with respect to any Collateral, it
shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same
into an account that is subject to a Deposit Account Control Agreement (which account must be a
Dominion Account (or a lockbox relating to a Dominion Account) to the extent such cash or Payment
Items are received during a Dominion Period). Except for funds received in Retail Deposit Accounts
in the Ordinary Course of Business, Borrowers shall request in writing and otherwise take all
necessary steps to ensure that all other Net Proceeds of Collateral that are remitted by wire or
other electronic transfer are remitted directly to, and if any Obligor or Subsidiary otherwise
receives Net Proceeds of any Collateral it shall hold same in trust for Agent and promptly (not
later than the next Business Day) deposit same into, an account that is subject to a Deposit
Account Control Agreement (which account must be a Dominion Account (or a lockbox relating to a
Dominion Account) to the extent such Net Proceeds are received during a Dominion Period).
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8.3 |
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Inventory. |
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8.3.1 |
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Records and Reports of Inventory |
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Each Obligor shall keep accurate and correct records itemizing and describing the type,
quality, and quantity of its Inventory and the book value thereof. On or before the later of
(i) the thirtieth (30th) day after the end of each fiscal quarter (or, while
Availability is less than $100,000,000 or during any Dominion Period, on or before the thirtieth
(30th) day after the end of each month) or (ii) 5 Business Days following delivery to
Borrower Agent of the draft ineligible Account information initially prepared by Agent as described
in Section 8.1, Borrower Agent shall submit to Agent inventory and reconciliation reports in form
reasonably satisfactory to Agent, as of the close of business of the most recently ended fiscal
quarter (or, while Availability is less than $100,000,000 or during any Dominion Period, as of the
close of business of the prior month). Upon the request of Agent, which such request may not be
made more than once per calendar year (unless an Event of Default exists, in which case Agent may
make such a request once per Fiscal Quarter), each Obligor shall conduct a physical inventory and
cycle count consistent with historical practices, and shall provide to Agent a report based on each
such inventory and count promptly upon completion thereof, together with such supporting
information as Agent may reasonably request. Agent may participate in and observe each physical
count.
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8.3.2 |
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Returns of Inventory |
No Obligor shall return any Inventory included in the calculation of Inventory Formula Amount
to a supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such
return is in the Ordinary Course of Business; (b) no Default, Event of Default or Overadvance
exists or would result therefrom; and (c) any payment received by an Obligor for a return is
promptly remitted to Agent for application to the Obligations. Without limiting the foregoing,
upon Agents request Borrowers shall promptly (and in any event within three Business Days) notify
Agent of all Inventory included in the current Inventory Formula Amount that has been returned by
Obligor to any supplier, vendor or other Person.
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8.3.3 |
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Acquisition, Sale and Maintenance |
Each Obligor shall take reasonable steps to assure that all Inventory is produced in
accordance with Applicable Law, including the FLSA, and that no convicted, forced or indentured
labor (as defined under U.S. law) nor child labor (as defined in the law of the manufacturers
country) will be used in the production of Inventory. Obligors shall use, store and maintain all
Inventory with reasonable care and caution, in accordance in all material respects with applicable
standards of any insurance and in conformity in all material respects with all Applicable Law, and
shall make current rent payments (within applicable grace periods provided for in leases) at all
locations where any Collateral is located, subject to Obligors rights under any such lease
agreements to dispute, retain, offset or withhold rent or other similar rights for any reason in
accordance with such lease agreements; but provided, that in such cases Agent may in its
Permitted Discretion impose a reserve for the amount of such withheld rent.
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8.4 |
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Equipment. |
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8.4.1 |
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Records and Schedules of Equipment |
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Each Obligor shall keep accurate and complete records of its Equipment, and shall submit to
Agent, on such periodic basis, but not more frequently than monthly, as Agent may request, a
summary thereof, in form reasonably satisfactory to Agent. Promptly upon request, Obligors shall
deliver to Agent such other documents and information as Agent may reasonably request from time to
time in connection with Obligors Equipment.
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8.4.2 |
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Dispositions of Equipment |
No Obligor shall sell, lease or otherwise dispose of any Equipment, without the prior written
consent of Agent, other than (a) a Permitted Asset Disposition; and (b) replacement of Equipment
that is worn, damaged or obsolete with Equipment of like function and value, if the replacement
Equipment is acquired substantially contemporaneously with such disposition and is free of Liens
other than Permitted Liens.
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8.4.3 |
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Condition of Equipment |
The Equipment is in good operating condition and repair in all material respects, and all
necessary replacements and repairs have been made so that the value and operating efficiency of the
Equipment is preserved in all material respects at all times, reasonable wear and tear excepted.
Each Obligor shall ensure that the Equipment is mechanically and structurally sound in all material
respects, and capable of performing the functions for which it was designed, in accordance with
manufacturer specifications.
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8.5 |
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Deposit Accounts and Securities Accounts. 8.5.1
Accounts Generally |
Obligors have disclosed to Agent in writing all Deposit Accounts and Securities Accounts
maintained by any Obligor as of the Closing Date, and Obligors shall promptly notify Agent of any
opening or closing of a Deposit Account or Securities Account after the Closing Date. Each Obligor
shall take all action necessary to establish Agents control of each Deposit Account and each
Securities Account maintained by such Obligor, other than Excluded Accounts. Each Obligor shall be
the sole account holder of each Deposit Account and Securities Account and shall not allow any
other Person (other than Agent) to have control over any Deposit Account or Securities Account or
any Property deposited therein.
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8.5.2 |
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Retail Deposit Accounts |
Borrowers shall not permit Retail Deposit Accounts to contain more than $25,000,000 in the
aggregate at any time. All available funds on deposit in each Retail Deposit Account shall be
transferred by Borrowers to a Dominion Account promptly following the initial deposit thereof into
such Retail Deposit Account (other than not more than $1,000,000 on deposit in each Retail Deposit
Account at any time); provided that upon Agents request during a Dominion Period,
Borrowers shall implement such transfers to a Dominion Account using standing transfer instructions
or other automated transfer procedures acceptable to Agent with respect to all such funds on
deposit in Retail Deposit Accounts (other than any minimum amount as Agent may approve in its sole
discretion).
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8.6 |
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General Provisions. |
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8.6.1 |
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Location of Collateral |
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All of the Obligors Inventory, Equipment, and books and records, other than (x) Equipment out
for repair, (y) Inventory in transit to or between locations of Obligors, or (z) Inventory out on
consignment in the Ordinary Course of Business, shall at all times be kept by Obligors at the
business locations set forth in Schedule 8.6.1 or Borrowers leased retail store locations operated
in the Ordinary Course of Business, except that Obligors may (a) make sales or other dispositions
of Collateral in accordance with Section 10.2.6; and (b) move Collateral to another location in the
United States, upon 30 Business Days prior written notice to Agent.
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8.6.2 |
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Insurance of Collateral |
(a) Each Obligor shall maintain insurance with respect to the Collateral, covering casualty,
hazard, theft and other risks as ordinarily are insured against by other Persons engaged in the
same or similar businesses, in amounts as is carried generally in accordance with sound business
practice by companies in similar businesses similarly situated and located, with endorsements and
with responsible and reputable insurers reasonably satisfactory to Agent. All business
interruption insurance and all proceeds of Collateral under each policy shall, subject to the
reinvestment rights set forth in Section 8.6.2(b) below, be payable to Agent. From time to time
upon request, Obligors shall deliver to Agent the originals or certified copies of its insurance
policies. Unless Agent shall agree otherwise, each policy shall include reasonably satisfactory
endorsements (i) showing Agent as loss payee; (ii) requiring 30 days prior written notice to Agent
in the event of cancellation of the policy for any reason whatsoever (10 days in the case of
nonpayment of premiums); and (iii) specifying that the interest of Agent shall not be impaired or
invalidated by any act or neglect of relevant Obligor or the owner of the Property, nor by the
occupation of the premises for purposes more hazardous than are permitted by the policy. If any
Obligor fails to provide and pay for any insurance, Agent may, at its option, but shall not be
required to, procure the insurance and charge Obligors therefor. Obligors agree to deliver to
Agent, promptly as rendered, copies of all reports made to insurance companies. While no Event of
Default exists, Obligors may settle, adjust or compromise any insurance claim, as long as the
proceeds are delivered to Agent. If an Event of Default exists, only Agent shall be authorized to
settle, adjust and compromise such claims.
(b) During a Dominion Period, any Net Proceeds of insurance (other than proceeds from workers
compensation or D&O insurance) and any awards arising from condemnation of any Collateral shall be
paid to Agent and shall be applied to payment of the Revolver Loans, and then to other Obligations;
provided that, so long as (i) no Default or Event of Default shall have occurred and is
continuing or would result therefrom, (ii) Borrower Agent shall have given Agent prior written
notice of Borrowers intention to apply such Net Proceeds to the costs of repair or replacement of
the properties or assets with respect to which such Net Proceeds were received or other similar
Property useful in the Ordinary Course of Business, (iii) the Net Proceeds are held in a Deposit
Account in which Agent has a perfected first-priority security interest until used as contemplated
herein, and (iv) Skechers or its Subsidiaries, as applicable, complete such repair, replacement,
purchase, or construction within (A) 365 days after the date of the initial receipt of such Net
Proceeds if such Net Proceeds relate to the repair, replacement of, or construction in connection
with, Real Estate and (B) in all other cases, 180 days after the date of the initial receipt of
such Net Proceeds, then the Obligor who received such Net Proceeds shall have the option to apply
such Net Proceeds to the costs of repair or replacement of the properties or assets with respect to
which such Net Proceeds were received or the costs of purchase or construction of other assets
useful in the business of Skechers or such Subsidiary unless and to the extent that such applicable
period shall have expired without such repair, replacement, purchase, or construction being made or
completed, in which case, any amounts remaining in the cash collateral account shall be paid to
Agent and applied in accordance with Section 5.6.1.
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8.6.3 |
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Protection of Collateral |
All expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping
any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and
all other payments required to be made by Agent to any Person to realize upon any Collateral, shall
be borne and paid by the Obligors. Agent shall not be liable or responsible in any way for the
safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its
custody while Collateral is in Agents actual possession), for any diminution in the value thereof,
or for any act or default of any warehouseman, carrier, forwarding agency or other Person
whatsoever, but the same shall be at Obligors sole risk.
Each Obligor shall defend its title to Collateral and Agents Liens therein against all
Persons, claims and demands, except Permitted Liens.
Each Obligor hereby irrevocably constitutes and appoints Agent (and all Persons designated by
Agent) as such Obligors true and lawful attorney (and agent-in-fact) for the purposes provided in
this Section. Agent, or Agents designee, may, without notice and in either its or the relevant
Obligors name, but at the cost and expense of such Obligor:
(a) Endorse the relevant Obligors name on any Payment Item or other proceeds of Collateral
(including proceeds of insurance) that come into Agents possession or control; and
(b) During an Event of Default, (i) notify any Account Debtors of the assignment of their
Accounts, demand and enforce payment of Accounts by legal proceedings or otherwise, and generally
exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise,
discharge or release any Accounts or other Collateral, or any legal proceedings brought to collect
Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for
such amounts and at such times as Agent deems advisable; (iv) collect, liquidate and receive
balances in Deposit Accounts or investment accounts constituting Collateral, and take control, in
any manner, of proceeds of Collateral; (v) prepare, file and sign an Obligors name to a proof of
claim or other document in a bankruptcy of an Account Debtor with respect to an Account of an
Obligor, or to any notice, assignment or satisfaction of Lien or similar document related to an
Account of an Obligor; (vi) receive, open and dispose of mail addressed to an Obligor, and notify
postal authorities to deliver any such mail to an address designated by Agent; (vii) endorse any
Chattel Paper, Document, Instrument, bill of lading, or other document or agreement relating to any
Accounts, Inventory or other Collateral; (viii) use Obligors stationery and sign its name to
verifications of Accounts and notices to Account Debtors; (ix) use information contained in any
data processing, electronic or information systems relating to Collateral; (x) make and adjust
claims under insurance policies (in the case of Property insurance policies, with respect to
Collateral); (xi) take any action as may be necessary or appropriate to obtain payment under any
letter of credit, bankers acceptance or other instrument, in each case to the extent constituting
Collateral, for which an Obligor is a beneficiary; and (xii) take all other actions with respect to
the Collateral or Obligors as Agent deems appropriate to fulfill any Obligors obligations under
the Loan Documents.
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SECTION 9. REPRESENTATIONS AND WARRANTIES |
9.1 General Representations and Warranties. To induce Agent and Lenders to enter into this
Agreement and to make available the Commitments, Loans and Letters of Credit, each Obligor
represents and warrants, on the Closing Date and on each request (or deemed request) by Borrowers
for funding of a Loan, issuance of a Letter of Credit or grant of an accommodation that:
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9.1.1 |
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Organization and Qualification |
Each Obligor is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization. Each Subsidiary that is not an Obligor is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization,
except where the failure to be so organized, existing or in good standing could not reasonably be
expected to have a Material Adverse Effect. Each Obligor and each Subsidiary is duly qualified,
authorized to do business and in good standing as a foreign corporation or limited liability
company in each jurisdiction where failure to be so qualified could reasonably be expected to have
a Material Adverse Effect.
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9.1.2 |
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Power and Authority |
Each Obligor is duly authorized to execute, deliver and perform its Loan Documents. The
execution, delivery and performance of the Loan Documents have been duly authorized by all
necessary action, and do not (a) require any consent or approval of any holders of Equity Interests
of any Obligor, except those already obtained; (b) contravene the Organic Documents of any Obligor;
(c) violate or cause a default under any Applicable Law, Material Contract or any Subordinated
Debt; or (d) result in or require imposition of a Lien (other than Permitted Liens) on any
Obligors Property. None of the Organic Documents of Skechers: (i) provide that the approval of the
holders of the Majority Voting Equity Interests are insufficient to take any corporate action, or
(ii) permit any holders of less than the Majority Voting Equity Interests to prohibit or block any
corporate action otherwise approved by the holders of the Majority Voting Equity Interests.
Each Loan Document is a legal, valid and binding obligation of each Obligor party thereto,
enforceable in accordance with its terms, except as enforceability may be limited by equitable
principles or by bankruptcy, insolvency or similar laws affecting the enforcement of creditors
rights generally.
(a) Schedule 9.1.4(a) shows as of the Closing Date (a) for Skechers, its name, jurisdiction of
organization, and number and classes of authorized and issued Equity Interests, and (b) for each
other Obligor and each of their Subsidiaries and joint ventures, its name, jurisdiction of
organization, authorized and issued Equity Interests (other than for any Foreign Subsidiary),
holders of its Equity Interests, and shareholder agreements or voting agreements binding on such
holders with respect to such Equity Interests. Except as disclosed on Schedule 9.1.4(a), in the
five years preceding the Closing Date, no Obligor or Subsidiary has acquired any substantial assets
from any other Person nor been the surviving entity in a merger or combination. Each Obligor has
good title to its Equity Interests in its Subsidiaries and joint ventures, subject only to Agents
Liens, and all such Equity Interests are duly issued, fully paid and non-assessable. Except as
disclosed on Schedule 9.1.4(a), there are no outstanding purchase options, warrants, subscription
rights, agreements to issue or sell, convertible interests or phantom rights or powers of attorney
relating to any Pledged Equity or other Equity Interests of any Issuer. None of the Subsidiaries
identified on Schedule 9.1.4(a) as a real estate holding company owns any property or assets
other than Real Estate and other assets necessary in connection with the ownership of such Real
Estate.
(b) Except as set forth on Schedule 9.1.4(b), and other than the Obligations, Subordinated
Debt and Permitted Purchase Money Debt, the Obligors do not have any Debt outstanding on the
Closing Date.
(c) As of the Closing Date, each Domestic Subsidiary of Skechers is an Obligor, other than
(i) Skechers Collection, LLC, Skechers Sport, LLC and SKX Illinois, LLC, each of which is an
Immaterial Subsidiary, and (ii) Sepulveda Blvd. Properties, LLC, Sepulveda Design Center LLC,
Duncan Investments, LLC and Skechers RB, each of which is a Real Estate Holding Subsidiary.
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9.1.5 |
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Title to Properties; Priority of Liens |
Each Obligor and each Subsidiary has good and marketable title to (or valid leasehold
interests in) all of its Real Estate, and good title to all of its personal Property, including all
Property reflected in any financial statements delivered to Agent or Lenders, in each case except
for those assets that are not necessary for the conduct of the business of the Obligors and their
Subsidiaries taken as a whole, or assets disposed of pursuant to a Permitted Asset Disposition.
All such assets are free and clear of liens other than Permitted Liens. All Liens of Agent in the
Collateral are (other than as a result of an action taken by the Agent or an action not taken that
is solely in the control of Agent) duly perfected, first priority Liens, subject only to Permitted
Liens.
Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and
representations made by Borrowers with respect thereto. Each Borrower warrants, with respect to
each Account shown as an Eligible Account in a Borrowing Base Report, that:
(a) it is genuine and in all respects what it purports to be;
(b) it arises out of a completed, bona fide sale and delivery of goods in the Ordinary Course
of Business, and substantially in accordance with any purchase order, contract or other document
relating thereto;
(c) it is for a sum certain, maturing as stated in the applicable invoice, a copy of which has
been furnished or is available to Agent on request;
(d) it is not subject to any offset, Lien (other than Agents Lien), deduction, defense,
dispute, counterclaim or other adverse condition except as arising in the Ordinary Course of
Business and disclosed to Agent; and it is absolutely owing by the Account Debtor, without
contingency in any respect;
(e) no purchase order, agreement, document or Applicable Law restricts assignment of the
Account to Agent (regardless of whether, under the UCC, the restriction is ineffective), and the
applicable Borrower is the sole payee or remittance party shown on the invoice;
(f) no extension, compromise, settlement, modification, credit, deduction or return has been
authorized or is in process with respect to the Account, except discounts or allowances granted in
the Ordinary Course of Business for prompt payment that are reflected on the face of the invoice
related thereto and in the reports submitted to Agent hereunder; and
(g) to the each Borrowers actual knowledge, (i) there are no facts or circumstances that are
reasonably likely to impair the enforceability or collectability of such Account; and (ii) the
Account Debtor had the capacity to contract when the Account arose, continues to meet the
applicable Borrowers customary credit standards, is Solvent, is not contemplating or subject to an
Insolvency Proceeding, and has not failed, or suspended or ceased doing business.
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9.1.7 |
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Financial Statements |
The balance sheets, and related statements of income, cash flow and shareholders equity, with
respect to Skechers on a Consolidated Basis that have been and are hereafter delivered to Agent and
Lenders, are prepared in accordance with GAAP, and fairly present in all material respects the
financial positions and results of operations of the Persons to which they relate at the dates and
for the periods indicated. All projections delivered from time to time to Agent and Lenders have
been prepared in good faith, based on reasonable assumptions in light of the circumstances at such
time. Since December 31, 2014, there has been no change in the condition, financial or otherwise,
of Borrower or Subsidiary that could reasonably be expected to have a Material Adverse Effect. No
financial statement delivered to Agent or Lenders at any time contains any untrue statement of a
material fact, nor fails to disclose any material fact necessary to make such statement not
materially misleading. Each Obligor is Solvent, and Skechers and its Subsidiaries, taken as a
whole, are Solvent.
No Obligor or Subsidiary is obligated as surety or indemnitor under any bond or other contract
that assures payment or performance of any obligation of any Person, except as permitted hereunder.
Each Obligor and each Subsidiary has filed all federal, state and local tax returns and other
reports that it is required by law to file, and has paid, or made provision for the payment of, all
Taxes upon it, its income and its Properties that are due and payable, except to the extent being
Properly Contested. The provision for Taxes on the books of each Obligor and each Subsidiary is
adequate for all years not closed by applicable statutes, and for its current Fiscal Year.
There are no brokerage commissions, finders fees or investment banking fees payable in
connection with any transactions contemplated by the Loan Documents.
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9.1.11 |
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Intellectual Property |
Each Obligor owns or has the lawful right to use all Intellectual Property necessary for the
conduct of its business, without conflict with any rights of others. Each Subsidiary owns or has
the lawful right to use all Intellectual Property necessary for the conduct of its business,
without conflict with any rights of others, except as could not reasonably be expected to have a
Material Adverse Effect. As of the date of this Agreement, except as disclosed on Schedule 9.1.11,
there is no pending or, to any Obligors knowledge, threatened (in writing) Intellectual Property
Claim with respect to any Obligor, any Subsidiary or any of their Property (including any
Intellectual Property) which could reasonably be expected to result in a Material Adverse Effect.
As of the date of this Agreement, except as disclosed on Schedule 9.1.11, the Obligors do not pay
or owe any Royalty or other compensation to any Person with respect to any Intellectual Property
that is, in the aggregate for all Obligors, in excess of $1,000,000 for any Fiscal Year. As of the
date of this Agreement, all Intellectual Property owned by any Obligor and which is registered with
the United States Patent and Trademark Office or the United States Copyright Office is shown on
Schedule 9.1.11.
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9.1.12 |
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Governmental Approvals |
Each Obligor and each Subsidiary has, is in compliance with, and is in good standing with
respect to, all Governmental Approvals necessary to conduct its business and to own, lease and
operate its Properties. All necessary import, export or other licenses, permits or certificates
for the import or handling of any goods or other Collateral have been procured and are in effect,
and Obligors and Subsidiaries have complied with all foreign and domestic laws with respect to the
shipment and importation of any goods or Collateral, except where noncompliance could not
reasonably be expected to have a Material Adverse Effect.
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9.1.13 |
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Compliance with Laws |
Each Obligor and each Subsidiary has duly complied, and its Properties and business operations
are in compliance, in all material respects with all Applicable Law, except where noncompliance
could not reasonably be expected to have a Material Adverse Effect. There have been no citations,
notices or orders of material noncompliance issued to any Obligor or any Subsidiary under any
Applicable Law. All Inventory of the Obligors has been produced in compliance with the FLSA in all
material respects.
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9.1.14 |
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Compliance with Environmental Laws |
As of the date of this Agreement, except as disclosed on Schedule 9.1.14, no Obligors or
Subsidiarys operations, Real Estate or other Properties are subject to any federal, state or local
investigation to determine whether any remedial action is needed to address any environmental
pollution, hazardous material or environmental clean-up. No Obligor or Subsidiary has received any
Environmental Notice which could reasonably be expected to result in a Material Adverse Effect. No
Obligor or Subsidiary has any material contingent liability with respect to any Environmental
Release, environmental pollution or hazardous material on any Real Estate now or previously owned,
leased or operated by it.
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9.1.15 |
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Burdensome Contracts |
No Obligor or Subsidiary is a party or subject to any contract, agreement or charter
restriction, the performance of which could reasonably be expected to have a Material Adverse
Effect. As of the Closing Date, no Borrower or other Obligor is party or subject to any
Restrictive Agreement, except as shown on Schedule 9.1.15. No such Restrictive Agreement prohibits
the execution, delivery or performance of any Loan Document by any Borrower or other Obligor.
There are no proceedings or investigations pending or, to any Obligors knowledge, threatened
in writing against any Obligor or any Subsidiary, or any of their businesses, operations,
Properties, prospects or conditions (a) that relate to any Loan Documents or transactions
contemplated thereby; or (b) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected (individually or in the aggregate and after giving
due regard to available insurance coverage therefor for which the applicable insurer has not issued
a denial of coverage or a reservation of rights) to result in a Material Adverse Effect. As of the
Closing Date, except as shown on Schedule 9.1.16, no Obligor has a Commercial Tort Claim (other
than, as long as no Default or Event of Default exists, a Commercial Tort Claim for less than
$1,000,000). No Obligor or Subsidiary is in default in any material respect with respect to any
order, injunction or judgment of any Governmental Authority.
No event or circumstance has occurred or exists that constitutes a Default or Event of
Default. No Obligor or Subsidiary is in default, and no event or circumstance has occurred or
exists that with the passage of time or giving of notice would constitute a default, under any
Material Contract. There is no valid basis upon which any party (other than any Obligor or
Subsidiary) could terminate a Material Contract prior to its scheduled termination, except where
such termination could not reasonably be expected to have a Material Adverse Effect.
Except as disclosed on Schedule 9.1.18:
(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code, and other federal and state laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the knowledge of Obligors, nothing has occurred which would prevent, or cause the loss of, such
qualification.
(b) There are no pending or, to the knowledge of Obligors, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably
be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted in or
could reasonably be expected to have a Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected to occur which could reasonably be
expected to have a Material Adverse Effect; (ii) as of the most recent valuation date for any
Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the
Code) is at least 60%, and no Obligor or ERISA Affiliate knows of any reason that the funding
target attainment percentage could reasonably be expected to drop below 60%; (iii) no Obligor or
ERISA Affiliate has incurred any material liability to the PBGC except for the payment of premiums,
and no premium payments are due and unpaid; (iv) no Obligor or ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA; and (v) no Pension Plan has
been terminated by its plan administrator or the PBGC, and no fact or circumstance exists that
could reasonably be expected to cause the PBGC to institute proceedings to terminate a Pension
Plan.
(d) With respect to any Foreign Plan, (i) all employer and employee contributions required by
law or by the terms of the Foreign Plan have been made, or, if applicable, accrued, in accordance
with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign
Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book
reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations with respect to all current and former
participants in such Foreign Plan according to the actuarial assumptions and valuations most
recently used to account for such obligations in accordance with applicable generally accepted
accounting principles; and (iii) it has been registered as required and has been maintained in good
standing with applicable regulatory authorities in each case set forth in clauses (i), (ii) or
(iii) except as could not reasonably be expected to have a Material Adverse Effect.
There exists no actual or threatened termination, limitation or modification of any business
relationship between any Obligor and any customer or supplier, or any group of customers or
suppliers, who individually or in the aggregate are material to the business of such Obligor.
There exists no condition or circumstance that could reasonably be expected to impair the ability
of any Obligor to conduct its business at any time hereafter in substantially the same manner as
conducted on the Closing Date.
As of the Closing Date, except as described on Schedule 9.1.20, no Obligor or Subsidiary is
party to or bound by any collective bargaining agreement. There are no material grievances,
disputes or controversies with any union or other organization of any Obligors or any Subsidiarys
employees, or, to any Obligors knowledge, any asserted or threatened strikes, work stoppages or
demands for collective bargaining.
No Obligor or Subsidiary has made any material change in its historical accounts payable
practices from those in effect on the Closing Date.
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9.1.22 |
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Not a Regulated Entity |
No Obligor is an investment company or a person directly or indirectly controlled by or
acting on behalf of an investment company within the meaning of the Investment Company Act of 1940
or subject to regulation under any other Applicable Law regarding its authority to incur Debt.
9.1.23 Margin StockNo Obligor or Subsidiary is engaged, principally or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
any Margin Stock. No Loan proceeds or Letters of Credit will be used by Obligors to purchase or
carry, or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for
any related purpose governed by Regulations T, U or X of the Board of Governors.
9.1.24 OFACNo Permitted Holder, Obligor, Subsidiary or Affiliate of any Obligor, or,
to the actual knowledge of any Borrower or Subsidiary, any director, officer, employee, agent or
representative acting on such Borrowers or Subsidiarys behalf, is, is controlled or (other than
with respect to Skechers) is owned in any material amount by any individual or entity that is
currently the subject or target of any Sanction or is located, organized or resident in a
Designated Jurisdiction. To the actual knowledge of any Borrower or Subsidiary, no individual or
entity that is currently the subject or target of any Sanction or is located, organized or resident
in a Designated Jurisdiction owns Skechers in an amount which results in the transactions
contemplated by this Agreement or the other Loan Documents, or any of Skechers, any Obligor, Agent,
Issuing Bank or any Lender or other Secured Party, being the subject or target of any Sanction or
otherwise in violation of Applicable Law.
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9.1.25 |
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Anti-Corruption Laws. |
Each Obligor and each Subsidiary has conducted its business in accordance with applicable
anti-corruption laws and has instituted and maintained policies and procedures designed to promote
and achieve compliance with such laws.
9.2 Complete Disclosure. No Loan Document contains any untrue statement of a material
fact, nor fails to disclose any material fact necessary to make the statements contained therein
not materially misleading. There is no fact or circumstance that any Obligor has failed to
disclose to Agent in writing that could reasonably be expected to have a Material Adverse Effect.
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SECTION 10. COVENANTS AND CONTINUING AGREEMENTS |
10.1 Affirmative Covenants. As long as any Commitments or Obligations are outstanding,
each Obligor shall, and shall cause each Subsidiary to:
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10.1.1 |
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Inspections; Appraisals |
(a) Permit Agent from time to time, subject (except when a Default or Event of Default
exists) to reasonable prior notice and (except when a Default or Event of Default exists) only
during normal business hours, to visit and inspect the Properties of any Obligor, inspect, audit
and make extracts from any Obligors books and records, and discuss with its officers, employees,
agents, advisors and independent accountants Obligors or any Subsidiarys business, financial
condition, assets, prospects and results of operations. Lenders may participate in any such visit
or inspection, at their own expense. Neither Agent nor any Lender shall have any duty to any
Obligor to make any inspection, nor to share any results of any inspection, appraisal or report
with any Obligor. Each Obligor acknowledges that all inspections, appraisals and reports are
prepared by Agent and Lenders for their purposes, and Obligors shall not be entitled to rely upon
them.
(b) Reimburse Agent for all reasonable charges, costs and expenses of Agent in connection with
(i) up to one (1) examination per year (and, during the existence of an Event of Default, any
additional examinations) of any Obligors books and records or any other financial or Collateral
matters as Agent deems appropriate in its Permitted Discretion; and (ii) up to one (1) appraisal
per year (and, during the existence of an Event of Default, any additional appraisals) of Obligors
Inventory as Agent deems appropriate in its Permitted Discretion. Borrowers agree to pay Agents
then-standard charges for examination and appraisal activities, including charges for Agents
internal examination and appraisal groups, as well as the reasonable charges of any third party
used for such purposes. Unless otherwise agreed in writing by Agent, no Borrowing Base calculation
shall include Collateral acquired in a Permitted Acquisition or otherwise outside the Ordinary
Course of Business until completion of applicable field examinations and appraisals satisfactory to
Agent.
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10.1.2 |
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Financial and Other Information |
Keep adequate records and books of account with respect to its business activities, in which
proper entries are made in accordance with GAAP; and furnish to Agent and Lenders:
(a) as soon as available, and in any event within 90 days after the close of each Fiscal Year,
balance sheets as of the end of such Fiscal Year and the related statements of income, cash flow
and shareholders equity for such Fiscal Year, for Skechers on a Consolidated Basis, which
consolidated statements shall be audited and certified (without qualification) by a firm of
independent certified public accountants of recognized standing selected by Borrowers and
reasonably acceptable to Agent, and shall set forth in comparative form corresponding figures for
the preceding Fiscal Year;
(b) as soon as available, and in any event within 45 days after the close of each Fiscal
Quarter, unaudited balance sheets as of the end of such Fiscal Quarter and the related statements
of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then
elapsed, for Skechers on a Consolidated Basis, setting forth in comparative form corresponding
figures for the preceding Fiscal Year and certified by the chief financial officer or other Senior
Officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial
position and results of operations for such Fiscal Quarter, subject to normal year-end adjustments
and the absence of footnotes.
(c) during any Dominion Period, as soon as available, and in any event within 30 days after
the end of each month (but within 45 days after the last month of any Fiscal Quarter), unaudited
balance sheets as of the end of such month and the related statements of income for such month and
for the portion of the Fiscal Year then elapsed, for Skechers on a Consolidated Basis, setting
forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the
chief financial officer or other Senior Officer of Borrower Agent as prepared in accordance with
GAAP and fairly presenting the financial position and results of operations for such month and
period, subject to normal year-end adjustments and the absence of footnotes;
(d) concurrently with delivery of financial statements under clauses (a) or (b) above, or more
frequently if requested by Agent while an Event of Default exists, a Compliance Certificate
executed by a Senior Officer of the Borrower Agent; without limiting the foregoing, Obligors shall
also furnish to Agent, within three Business Days following the commencement of each Covenant
Testing Trigger Period, an accurate calculation of the Fixed Charge Coverage Ratio (in the form
attached as Exhibit D to the Compliance Certificate) for the most recently ended Fiscal Quarter for
which financial statements are required to have been delivered pursuant to Section 10.1.2(b),
certified by a Senior Officer of the Borrower Agent; provided, that notwithstanding
anything to the contrary set forth in Section 6.2, Agent, Issuing Bank and Lenders shall not be
required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other
accommodation to or for the benefit of Borrowers following the commencement of each Covenant
Testing Trigger Period until such Compliance Certificate has been delivered to Agent as required by
this Section 10.1.2(d);
(e) concurrently with delivery of financial statements under clause (a) above, copies of all
management letters and other material reports submitted to Obligors by their accountants in
connection with such financial statements;
(f) not later than 60 days after the commencement of each Fiscal Year, projections for
Skechers on a Consolidated Basis, including consolidated balance sheets, results of operations,
cash flow and Availability for such Fiscal Year, quarter-by-quarter, and for such Fiscal Year and
the following Fiscal Year, year-by-year;
(g) within ten (10) days of Agents request, but in no event more frequently than monthly
unless an Event of Default has occurred and is continuing, a listing of Borrowers trade payables,
specifying the trade creditor and balance due, and a detailed trade payable aging, all in form
reasonably satisfactory to Agent;
(h) promptly after the sending or filing thereof, copies of any proxy statements, financial
statements or reports that Skechers has made generally available to its shareholders; copies of any
regular, periodic and special reports or registration statements or prospectuses that any Obligor
files with the Securities and Exchange Commission or any other securities exchange; and copies of
any press releases or other statements made available by any Obligor to the public concerning
material changes to or developments in the business of such Obligor;
(i) promptly after the sending or filing thereof, copies of any annual report to be filed in
connection with each Plan or Foreign Plan;
(j) such other reports and information (financial or otherwise) as Agent may reasonably
request from time to time in connection with any Collateral or any Borrowers, Subsidiarys or
other Obligors financial condition or business.
(a) Notify Agent and Lenders in writing, promptly after an Obligors obtaining knowledge
thereof, of any of the following that affects an Obligor: (a) the filing or commencement of, the
threat in writing of, or any material adverse development in, any action, suit, proceeding,
investigation or arbitration by or before any arbitrator or Governmental Authority against or
affecting any Obligor or Subsidiary not previously disclosed in writing to Agent that, individually
or in the aggregate, could reasonably be expected to result in a Material Adverse Effect; (b) any
pending or threatened labor dispute, strike or walkout, or the expiration of any material labor
contract; (c) any default under or termination of a Material Contract or any Subordinated Debt;
(d) the existence of any Default or Event of Default; (e) any judgment in an amount exceeding
$10,000,000; (f) the assertion of, or any material adverse development in, any Intellectual
Property Claim, that could reasonably be expected have a Material Adverse Effect; (g) any violation
or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental
Laws), that could reasonably be expected have a Material Adverse Effect; (h) any Environmental
Release by an Obligor or on any Property owned, leased or occupied by an Obligor, or receipt of any
Environmental Notice, in each case which could reasonably be expected to give rise to liabilities
or remediation costs exceeding $10,000,000; (i) the occurrence of any ERISA Event; (j) the
discharge of or any withdrawal or resignation by any Obligors independent accountants; or (k) any
opening of a place of business (other than any leased retail store locations) where $10,000,000 or
more of Inventory may be located at any time, at least 30 days prior to such opening (such notice
to include the address, including city, county, state and zip code, of such place of business, and
the owner or lessor thereof, as applicable).
(b) Notify Agent and Lenders in writing (including a complete copy of all such notices),
promptly upon any Obligors or Subsidiarys receipt of: (i) any notice of default or other
material notice given or received under Skechers lease with HF Logistics-SKX T1, LLC (or its
successor as landlord) with respect to the leased premises commonly known as 29800 Eucalyptus
Avenue, Moreno Valley, California 92555; and (ii) any notice given or received pursuant to either
Article 8 or Section 13 of the Skechers/HF JV LLC Agreement.
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10.1.4 |
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Landlord and Storage Agreements |
Upon Agents request, provide Agent with a list (such list to include the address, including
city, county, state and zip code, of such place of business, and the owner or lessor thereof, as
applicable) of leased retail store locations and copies of all agreements, whether executed prior
to or after the Closing Date, between an Obligor and any landlord (provided that Agent
shall afford Obligors a reasonable period of time for the provision of any agreements with respect
to leased retail store locations based on the number of such agreements requested), warehouseman,
processor, shipper, bailee or other Person that owns any premises at which any Collateral may be
kept or that otherwise may possess or handle any Collateral.
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10.1.5 |
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Compliance with Laws |
Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA,
Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and maintain all
Governmental Approvals necessary to the ownership of its Properties or conduct of its business,
unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could
not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of
the foregoing, if any Environmental Release occurs at or on any Properties of any Obligor or
Subsidiary which could reasonably be expected to have a Material Adverse Effect, it shall act
promptly and diligently to investigate and report to Agent and, to the extent required by
Applicable Law, all appropriate Governmental Authorities the extent of, and, except as could not
reasonably be expected to have a Material Adverse Effect, to make appropriate remedial action to
eliminate, such Environmental Release, whether or not directed to do so by any Governmental
Authority.
Pay and discharge all Taxes prior to the date on which they become delinquent or penalties
attach, unless such Taxes are being Properly Contested.
In addition to the insurance required hereunder with respect to Collateral, maintain insurance
with insurers (with a Best rating of at least A+, unless otherwise approved by Agent in its
discretion) reasonably satisfactory to Agent, (a) with respect to the Properties and business of
Obligors and Subsidiaries of such type (including product liability, workers compensation,
larceny, embezzlement, or other criminal misappropriation insurance), in such amounts, and with
such coverages and deductibles as are customary for companies similarly situated; and (b) business
interruption insurance in an amount not less than $300,000,000, with deductibles and subject to an
insurance assignment reasonably satisfactory to Agent.
Keep each License affecting any Eligible Inventory or Eligible In-Transit Inventory (including
the manufacture, distribution or disposition of such Inventory) having a value equal to or greater
than 5% of the value of all Inventory or relating to sales equal to or greater than 5% of all
sales, or any other material Property of Obligors and Subsidiaries in full force and effect;
promptly notify Agent of any proposed modification to any such License, or entry into any new such
License, in each case at least 10 days prior to its effective date; pay all Royalties on such
Licenses when due; and notify Agent of any default or breach asserted in writing by any Person to
have occurred under any such License.
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10.1.9 |
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Future Subsidiaries |
Promptly notify Agent upon (a) any Person becoming a Subsidiary and (b) upon any Immaterial
Subsidiary or Real Estate Holding Subsidiary ceasing to qualify as such and, if such Person is not
an Immaterial Subsidiary, Foreign Subsidiary, or Real Estate Holding Subsidiary, cause it to
guaranty the Obligations in a manner satisfactory to Agent in its Permitted Discretion, and to
execute and deliver such documents, instruments and agreements and to take such other actions as
Agent shall require to evidence and perfect a Lien in favor of Agent on all assets, other than
assets that would constitute Excluded Assets, of such Person, including delivery of such legal
opinions, in form and substance satisfactory to Agent in its Permitted Discretion, as it shall deem
appropriate.
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10.1.10 |
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Anti-Corruption Laws |
Conduct its business in compliance with applicable anti-corruption laws and maintain policies
and procedures designed to promote and achieve compliance with such laws.
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10.1.11 |
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Business Locations. |
Upon Agents request, provide Agent with a true, accurate and complete list of all current
business locations (including without limitation all leased retail store locations) in the United
States of any Obligor or Subsidiary.
10.2 Negative Covenants. As long as any Commitments or Obligations are outstanding,
Obligors shall not, and shall cause each Subsidiary not to:
Create, incur, guarantee or suffer to exist any Debt, except the following (collectively,
Permitted Debt):
(a) the Obligations;
(b) Subordinated Debt;
(c) Permitted Purchase Money Debt;
(d) Debt (other than the Obligations, Subordinated Debt and Permitted Purchase Money Debt) set
forth on Schedule 9.1.4(b), but only to the extent outstanding on the Closing Date;
(e) Debt with respect to Bank Products incurred in the Ordinary Course of Business;
(f) Debt that is in existence when a Person becomes a Subsidiary or that is secured by an
asset when acquired by an Obligor or Subsidiary, as long as such Debt was not incurred in
contemplation of such Person becoming a Subsidiary or such acquisition, and does not exceed
$25,000,000 in the aggregate at any time;
(g) Permitted Contingent Obligations;
(h) Debt owed to any Person providing property, casualty, liability, or other insurance to
Skechers or any of its Subsidiaries, so long as the amount of such Debt is not in excess of the
amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for
the year in which such Debt is incurred and such Debt is outstanding only during such year;
(i) the incurrence by Skechers or its Subsidiaries of Debt under Hedging Agreements that are
incurred for the bona fide purpose of hedging the interest rate or foreign currency risk associated
with Skechers and its Subsidiaries operations and not for speculative purposes;
(j) Debt incurred in respect of credit cards, credit card processing services, debit cards,
stored value cards, purchase cards (including so-called procurement cards or P-cards), or Cash
Management Services, in each case, incurred in the Ordinary Course of Business;
(k) contingent liabilities (i) in respect of any indemnification obligation, adjustment of
purchase price, non-compete, or similar obligation of Skechers or any Subsidiary incurred in
connection with the consummation of one or more Permitted Acquisitions or (ii) in respect of any
indemnification obligation under any prior credit agreements, loan agreements, or securities
offerings;
(l) Debt secured solely by Real Estate, so long as the aggregate principal amount of such Debt
does not exceed $150,000,000 at any time;
(m) Debt of Foreign Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at
any time and unsecured guaranties thereof by any Obligor or any Subsidiary; provided,
however, that in no event shall any Obligor be permitted to pledge any of their assets to
secure such Debt;
(n) Deferred compensation payable to employees, officers or directors under any deferred
compensation plans entered into in the Ordinary Course of Business, so long as the amount of total
compensation payable to such employees, officers, or directors, after taking into account such
deferred compensation plan, is consistent with the historical practices of Skechers and its
Subsidiaries;
(o) Refinancing Debt as long as each Refinancing Condition is satisfied;
(p) Debt consisting of obligations in respect of intercompany loans and intercompany advances
expressly permitted by Section 10.2.7;
(q) any other Debt that is not secured by a Lien (other than Permitted Liens) and that is
Incurred such that both immediately before and immediately after such Incurrence, Availability is
in excess of 15% of all Revolver Commitments, and no Default or Event of Default exists or is
caused thereby; and
(r) other unsecured Debt in an aggregate outstanding principal amount not to exceed
$10,000,000 at any time.
Create or suffer to exist any Lien upon any of its Property (whether or not constituting
Collateral), except the following (collectively, Permitted Liens):
(a) Liens in favor of Agent securing the Obligations;
(b) Purchase Money Liens securing Permitted Purchase Money Debt or securing Purchase Money
Debt Incurred permitted pursuant to Section 10.2.1(q);
(c) Liens for Taxes not yet delinquent or being Properly Contested;
(d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the
Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet
due or is being Properly Contested, and (ii) such Liens do not materially impair the value or use
of the Property or materially impair operation of the business of any Obligor or any Subsidiary;
(e) Liens incurred or deposits made in the Ordinary Course of Business to secure the
performance of government tenders, bids, contracts (except those relating to Debt), statutory
obligations and other similar obligations;
(f) Liens on amounts deposited to secure Skechers and its Subsidiaries obligations in
connection with workers compensation or other unemployment insurance;
(g) Liens on amounts deposited to secure Skechers and its Subsidiaries reimbursement
obligations incurred in the Ordinary Course of Business with respect to performance, surety,
statutory, and appeal bonds;
(h) Liens arising by operation of law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers, or suppliers, and other similar statutory Liens, incurred in the
Ordinary Course of Business and not in connection with Debt, and which Liens either (i) are for
sums not yet delinquent, or (ii) are Properly Contested;
(i) Liens arising by virtue of a judgment or judicial order or award against any Obligor or
Subsidiary, or any Property of an Obligor or Subsidiary, that do not constitute an Event of Default
under Section 11.1(g);
(j) easements, rights-of-way, restrictions, covenants or other agreements of record, and other
similar charges or encumbrances on Real Estate, that do not secure any monetary obligation and do
not interfere with the Ordinary Course of Business;
(k) normal and customary rights of setoff upon deposits in favor of depository institutions,
and Liens of a collecting bank on Payment Items in the course of collection;
(l) Liens on assets (other than Accounts, Inventory, Deposit Accounts or Securities Accounts
of any Obligor (or any proceeds of the foregoing)) acquired in a Permitted Acquisition, securing
Debt permitted by Section 10.2.1(f);
(m) existing Liens shown on Schedule 10.2.2;
(n) the interests of lessors under operating leases and licensors under license agreements,
(o) licenses (a) on a non-exclusive basis, of patents, trademarks, copyrights, and other
intellectual property rights in the Ordinary Course of Business or (b) on an exclusive basis, of
patents, trademarks, copyrights, and other intellectual property rights in the Ordinary Course of
Business so long as either (i) the patents, trademarks, copyrights, and other intellectual property
subject to such exclusive license are not owned by an Obligor or, if owned by an Obligor, the
territory with respect to which the exclusive license is granted does not include the United States
or a territory within the United States, or (ii) such exclusive license does not grant a right to
use such patents, trademarks, copyrights, and other intellectual property rights in connection with
the manufacture, design, distribution or sale of footwear of any kind;
(p) Liens that are replacements of Permitted Liens to the extent that the original Debt is the
subject of permitted Refinancing Debt and so long as the replacement Liens only encumber those
assets that secured the original Debt;
(q) Liens granted in the Ordinary Course of Business on the unearned portion of insurance
premiums securing the financing of insurance premiums to the extent the financing is permitted
under the definition of Permitted Debt;
(r) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;
(s) Liens resulting from the filing of a precautionary UCC-1 financing statements relating
solely to operating leases of personal property entered into in the Ordinary Course of Business;
(t) Liens solely on any cash earnest money deposits made by Skechers or any of its
Subsidiaries in connection with any letter of intent or purchase agreement with respect to a
proposed Permitted Acquisition;
(u) Liens on Real Property securing Indebtedness permitted pursuant to Section 10.2.1(l) or
10.2.1(q);
(v) Liens on assets owned by Foreign Subsidiaries, which Liens secure Debt permitted pursuant
Section 10.2.1(m) or 10.2.1(q);
(w) Liens on patents, trademarks, copyrights, or other Intellectual Property, which Liens
arise pursuant to a Permitted Asset Disposition permitted pursuant to clause (r) of the definition
of Permitted Assets Dispositions, to the extent such patents, trademarks, copyrights, or other
Intellectual Property are not necessary in the conduct of Skechers and its Subsidiaries business,
taken as a whole;
(x) other Liens which do not secure Debt and as to which the aggregate amount of the
obligations secured thereby does not exceed $100,000;
(y) any other Lien securing only Debt permitted pursuant to Section 10.2.1 or obligations not
constituting Debt that is granted when Availability is in excess of 15% of all Revolver Commitments
and no Default or Event of Default exists or is caused thereby to the extent Borrowers have
delivered to Agent, at least 5 Business Days prior to such grant, copies of all material agreements
relating thereto and a certificate, in form and substance satisfactory to Agent in its Permitted
Discretion and signed by a Senior Officer, stating that such Lien is permitted to be granted under
this Agreement and demonstrating compliance with the requirements of this clause (l);
provided that (i) in no event shall Liens be permitted pursuant to this clause (l) that
attach to any Obligors Accounts, Inventory, Deposit Accounts or Securities Accounts (or any
proceeds of the foregoing) without the prior written consent of Agent and Required Lenders in their
sole discretion, and (ii) if such Lien attaches to any Collateral, to the extent required by Agent
in its Permitted Discretion such Lien is subject to an intercreditor, license or access and use
agreement in form and substance satisfactory to Agent.
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10.2.3 |
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[Intentionally Omitted] |
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10.2.4 |
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Distributions; Upstream Payments |
(a) Declare or make any Distributions, except (i) Upstream Payments, and (ii) any other
Distribution made if (x) both immediately before and immediately after giving pro forma effect to
such Distribution, Availability is greater than 12.5% of the Revolver Commitments and no Default or
Event of Default exists or is caused thereby, and (y) either (1) the Fixed Charge Coverage Ratio,
determined on a pro forma basis immediately after giving pro forma effect to such Distribution (as
if such Distribution were made on the last day of the most recently ended period for which
financial statements have been delivered pursuant to Section 10.1.2), is greater than 1.0 to 1.0,
or (2) at all times during each of the 30 consecutive days preceding such Distribution,
Availability (determined on a pro forma basis as if such Distribution were made at the start of
such 30-day period) has been greater than 20.0% of all Revolver Commitments at all times.
(b) Create or suffer to exist any encumbrance or restriction on the ability of any Obligor to
make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law
or in effect on the Closing Date as shown on Schedule 9.1.15, or pursuant to a Restrictive
Agreement permitted to be entered into under Section 10.2.14.
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10.2.5 |
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Restricted Investments |
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Make any Restricted Investment. |
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10.2.6 |
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Disposition of Assets |
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Make any Asset Disposition, except a Permitted Asset Disposition, a disposition of Equipment
under Section 8.4.2, or a transfer of Property by a Subsidiary or Obligor to an Obligor. Upon
request by Borrower Agent in connection with any Permitted Asset Disposition, together with
delivery to Agent of a certificate of a Senior Officer certifying in writing that the proposed
Permitted Asset Disposition meets all requirements of the Loan Documents (and Agent may rely
conclusively on any such certificate, without further inquiry), Agent will release (and if
requested by Agent, the Lenders will confirm in writing Agents authority to release) Agents Liens
on particular items of Collateral being so disposed of in such Permitted Asset Disposition;
provided, however, that (a) Agent shall not be required to execute any document
necessary to evidence such release on terms that, in Agents opinion, would expose Agent to
liability or create any obligation or entail any consequence other than the release of such Lien
without recourse, representation, or warranty, and (b) such release shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of Obligors in respect of) all interests retained by Obligors,
including, the proceeds of any sale of Collateral, all of which shall continue to constitute part
of the Collateral.
Make any loans or other advances of money to any Person, except (a) advances to an officer or
employee for salary, travel expenses, commissions and similar items in the Ordinary Course of
Business; (b) prepaid expenses and extensions of trade credit made in the Ordinary Course of
Business (including, for the avoidance of doubt, prepaid expenses and extensions of trade credit
made in the Ordinary Course of Business by any Borrower or any Subsidiary for or to another
Borrower or Subsidiary); (c) deposits with financial institutions permitted hereunder; (d) as long
as no Event of Default exists, intercompany loans made by an Obligor that do not constitute
Restricted Investments (other than pursuant to clause (c) of the definition thereof); (e)
intercompany loans and advances existing on the Closing Date as set forth on Schedule 10.2.7; (f)
intercompany loans and advances made by a Subsidiary that is not an Obligor to an Obligor; (g)
intercompany loans and advances made by a Subsidiary that is not an Obligor to another Subsidiary
that is not an Obligor; (h) loans or advances in connection with transactions involving the
provision of accounting, management and other similar services (and consideration therefor), cost
sharing arrangements and expense reimbursement arrangements in each case in this clause (h) by any
Borrower or any Subsidiary to one another in the Ordinary Course of Business; and (i) in addition
to the foregoing, loans or advances to employees in an aggregate outstanding principal amount not
to exceed $500,000 at any time; provided, that all intercompany loans made by or to any
Obligor pursuant to the foregoing clauses (d), (e) or (f) must be evidenced by the Master
Intercompany Subordinated Note, and in addition, (1) Agent shall have received the following from
each party to such intercompany loans made by or to any Obligor pursuant to the foregoing clauses
(d), (e) or (f): (x) a duly executed counterpart to the Master Intercompany Subordinated Note or a
duly executed joinder agreement to the Master Intercompany Subordinated Note in the form attached
thereto, and (y) a duly executed endorsement of the Master Intercompany Subordinated Note in the
form attached thereto; and (2) Agent must have possession of the Master Intercompany Subordinated
Note and all such joinders, as pledged to Agent and duly executed by all parties thereto.
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10.2.8 |
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Restrictions on Payment of Certain Debt |
Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement,
defeasance or acquisition) with respect to any (a) Subordinated Debt, except to the extent
permitted under any subordination agreement (including the Master Intercompany Subordinated
Note) relating to such Debt; or (b) Debt (other than the Obligations) prior to its due date under
the agreements evidencing such Debt (other than refinancings made with Refinancing Debt or other
Permitted Debt); provided, however, that with respect to the prepayment of Debt as
described in clause (b) above, such prepayment shall be permitted if (x) both immediately before
and immediately after giving pro forma effect to such prepayment, Availability is greater than
12.5% of the Revolver Commitments and no Default or Event of Default exists or is caused thereby,
and (y) either (1) the Fixed Charge Coverage Ratio, determined on a pro forma basis immediately
after giving pro forma effect to such prepayment (as if such prepayment were made on the last day
of the most recently ended period for which financial statements have been delivered pursuant to
Section 10.1.2), is greater than 1.0 to 1.0, or (2) at all times during each of the 30 consecutive
days preceding such prepayment, Availability (determined on a pro forma basis as if such prepayment
were made at the start of such 30-day period) has been greater than 20.0% of all Revolver
Commitments at all times.
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10.2.9 |
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Fundamental Changes |
Change its name or conduct business under any fictitious name; change its tax, charter or
other organizational identification number; change its form or state of organization; liquidate,
wind up its affairs or dissolve itself; or merge, combine or consolidate with any Person, whether
in a single transaction or in a series of related transactions, except for (a) mergers or
consolidations of (i) a Borrower with and into another Borrower, provided that if Skechers
is a party to such merger or consolidation, Skechers must be the survivor thereof, (ii) a Guarantor
with and into a Borrower, (iii) a Guarantor with and into another Guarantor, (iv) a non-Obligor
Subsidiary with and into an Obligor, or (v) a non-Obligor Subsidiary with and into another
non-Obligor Subsidiary, (b) Permitted Acquisitions; (c) name changes of which Agent has been given
ten (10) Business Days prior notice, (d) conduct of business under any fictitious name of which
Agent has been given ten (10) Business Days prior notice, or (e) change in tax, charter or other
organizational identification number (i) of which Agent has been given ten (10) Business Days prior
notice, or (ii) which were not initiated by such Obligor and are due to actions by any relevant
Governmental Authority, so long as Agent receives notice thereof promptly (and in any event within
ten (10) days) after such Obligor becomes aware of such change.
Form or acquire any Subsidiary after the Closing Date, except in accordance with Sections
10.1.9, 10.2.5 and 10.2.9. Permit any Obligor (other than Skechers) or any Subsidiary to issue any
additional Equity Interests except directors qualifying shares unless such additional Equity
Interests are, and are treated as, Pledged Equity (except to the extent constituting Excluded
Assets). Permit any Real Estate Holding Subsidiary to own any property or assets other than (a) in
the case of a Real Estate Holding Subsidiary described in clause (i) of the definition thereof,
Real Estate and other assets necessary in connection with the ownership of such Real Estate or
(b) in the case of a Real Estate Holding Subsidiary described in clause (ii) of the definition
thereof, Equity Interests in an Affiliate or joint venture described in such clause (ii).
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10.2.11 |
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Organic Documents |
Unless consented to by Agent, amend, modify or otherwise change any of its Organic Documents,
except in connection with a transaction permitted under Section 10.2.9 or if the effect thereof,
either individually or in the aggregate, would (i) provide that the approval of the holders of the
Majority Voting Equity Interests are insufficient to take any corporate action by Skechers,
(ii) permit any holders of less than the Majority Voting Equity Interests to prohibit or block any
corporate action by Skechers otherwise approved by the holders of the Majority Voting Equity
Interests, (iii) result in a Change of Control or (iv) otherwise reasonably be expected to be
materially adverse to the interests of the Secured Parties.
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10.2.12 |
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Tax Consolidation |
File or consent to the filing of any consolidated income tax return with any Person other than
Obligors and Subsidiaries.
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10.2.13 |
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Accounting Changes |
Make any material change in accounting treatment or reporting practices, except as required by
GAAP and in accordance with Section 1.2; or change its Fiscal Year.
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10.2.14 |
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Restrictive Agreements |
Permit any Obligor to become a party to any Restrictive Agreement, except a Restrictive
Agreement (a) in effect on the Closing Date and set forth on Schedule 9.1.15; (b) relating to
secured Debt permitted hereunder, as long as the restrictions on Liens in such Restrictive
Agreement apply only to the collateral securing such Debt and such collateral does not constitute
Collateral; or (c) that does not condition or restrict the Agents Lien on the Collateral, is
customary in the Ordinary Course of Business, is immaterial to the performance by the Obligors of
their Obligations under the Loan Documents and could not reasonably be expected to have a Material
Adverse Effect.
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10.2.15 |
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Hedging Agreements |
Enter into any Hedging Agreement, except to hedge risks arising in the Ordinary Course of
Business and not for speculative purposes.
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10.2.16 |
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Conduct of Business |
Engage in any business, other than its business as conducted on the Closing Date and any
activities incidental thereto or reasonably related or ancillary thereto.
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10.2.17 |
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Affiliate Transactions |
Enter into or be party to any transaction with an Affiliate, except (a) transactions expressly
permitted by the Loan Documents; (b) payment of reasonable compensation and benefits to officers
and employees for services actually rendered, and payment of customary directors fees and
indemnities; (c) transactions solely among Obligors or solely among Subsidiaries which are not
Obligors; (d) transactions with Affiliates as shown on Schedule 10.2.17; (e) transactions with
Affiliates in the Ordinary Course of Business, which transactions under this clause (e) shall be
upon fair and reasonable terms fully disclosed to Agent and no less favorable than would be
obtained in a comparable arms-length transaction with a non-Affiliate; and (f) transactions
involving the provision of accounting, management and other similar services (and consideration
therefor), cost sharing arrangements and expense reimbursement arrangements in each case in this
clause (f) by any Borrower or any Subsidiary to one another in the Ordinary Course of Business.
Become party to any Multiemployer Plan or Foreign Plan, other than any in existence on the
Closing Date.
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10.2.19 |
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Amendments to Subordinated Debt |
Amend, supplement or otherwise modify any document, instrument or agreement relating to any
Subordinated Debt, except to the extent (a) not prohibited under the Subordination Agreement
related thereto or the subordination provisions thereof and (b) that such amendment, supplement or
modification would not result in the Obligations losing the benefit of the Subordination Agreement
related thereto or the subordination provisions thereof.
10.3 Financial Covenants. As long as any Commitments or Obligations are outstanding,
Borrower shall:
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10.3.1 |
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Fixed Charge Coverage Ratio |
Maintain a Fixed Charge Coverage Ratio for each four consecutive Fiscal Quarter period of at
least 1.1 to 1.0 while a Covenant Testing Period is in effect, measured for the most recent such
four consecutive Fiscal Quarter period for which financial statements were delivered hereunder
prior to the commencement of the Covenant Testing Period and each such period ending thereafter
until the Covenant Testing Period is no longer in effect.
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SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT |
11.1 Events of Default. Each of the following shall be an Event of Default if it
occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or
otherwise:
(a) An Obligor fails to pay its Obligations when due (whether at stated maturity, on demand,
upon acceleration or otherwise);
(b) Any representation, warranty or other written statement of an Obligor made in connection
with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any
material respect when given;
(c) An Obligor breaches or fails to perform any covenant contained in (i) Section 6.3, 7.2,
8.1, 8.2.4, 8.2.5, 8.6.2, 10.1.1, 10.1.2, 10.2 or 10.3 of this Agreement or (ii) Section 7.4 or 7.6
and such breach or failure under this clause (ii) shall continue for more than ten (10) Business
Days;
(d) An Obligor breaches or fails to perform any other covenant contained in any Loan
Documents, and such breach or failure continues for a period of 30 days after a Senior Officer of
such Obligor has knowledge thereof or receives notice thereof from Agent, whichever is sooner;
(e) A Guarantor repudiates, revokes or attempts to revoke its Guaranty; an Obligor or third
party denies or contests the validity or enforceability of any Loan Documents or Obligations, or
the perfection or priority of any Lien granted to Agent; or any Loan Document ceases to be in full
force or effect for any reason (other than (i) due to a termination thereof in accordance with its
terms, (ii) as a result of a disposition of the applicable Collateral in a transaction permitted by
this Agreement, or (iii) a waiver or release by Agent and Lenders);
(f) Any breach or default of an Obligor occurs under (i) any Hedging Agreement in excess of
$10,000,000 (which amount shall be calculated based on the amount that would be payable by such
Obligor if the Hedging Agreement were terminated on the date of determination) or (ii) any other
instrument or agreement to which it is a party or by which it or any of its Properties is bound
relating to any Debt (other than the Obligations) in excess of $10,000,000, if the maturity of or
any payment with respect to such Debt may be accelerated or demanded due to such breach;
(g) One or more judgments, orders or awards for the payment of money are entered or filed
against an Obligor or any of its Subsidiaries (or with respect to any of their respective
assets) involving an aggregate amount of $25,000,000 or more calculated net of insurance coverage
therefor for which the applicable insurer has not issued a denial of coverage or a reservation of
rights therefor, and either (a) there is a period of 30 consecutive days at any time after the
entry of any such judgment, order, or award during which (i) the same is not discharged or
satisfied, or (ii) a stay of enforcement thereof is not in effect, or (b) enforcement proceedings
are commenced upon such judgment, order, or award;
(h) A loss, theft, damage or destruction occurs with respect to any Collateral if the amount
not covered by insurance exceeds $25,000,000;
(i) the Obligors and their Subsidiaries, taken as a whole, are (a) enjoined, restrained, or in
any way prevented by court order from (a) continuing to conduct all or substantially all of their
business affairs, or (b) conducting the business of designing, manufacturing, distributing or
selling footwear under the Skechers brand name.
(j) Except pursuant to a transaction expressly permitted under the Loan Documents, any of the
following occurs: an Insolvency Event is commenced by an Obligor; an Obligor agrees to or
commences any liquidation, dissolution or winding up of its affairs; an Obligor makes an offer of
settlement, extension or composition to its unsecured creditors generally; a trustee is appointed
to take possession of any substantial Property of or to operate any substantial portion of the
business of an Obligor; or an Insolvency Event is commenced against an Obligor and the Obligor
consents to institution of the proceeding, the petition commencing the proceeding is not timely
contested by the Obligor, the petition is not dismissed within 60 days after filing, or an order
for relief is entered in the proceeding;
(k) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan or an Obligor
or ERISA Affiliate fails to pay when due any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan, or any event similar to the
foregoing occurs or exists with respect to a Foreign Plan, in each case where any of the foregoing,
individually or in the aggregate, has resulted or could reasonably be expected to result in
liability of an Obligor to a Pension Plan, Multiemployer Plan or PBGC in excess of $10,000,000;
(l) An Obligor or any of its Senior Officers is criminally indicted or convicted for (i) a
felony committed in the conduct of the Obligors business, or (ii) violating any state or federal
law (including the Controlled Substances Act, Money Laundering Control Act of 1986 and Illegal
Exportation of War Materials Act) that could lead to forfeiture of any material Property or any
Collateral having a value in excess of $10,000,000; or
(m) A Change of Control occurs.
11.2 Remedies upon Default. If an Event of Default described in Section 11.1(j) occurs
with respect to any Obligor, then to the extent permitted by Applicable Law, all Obligations (other
than Secured Bank Product Obligations) shall become automatically due and payable and all
Commitments shall terminate, without any action by Agent or notice of any kind. In addition, or if
any other Event of Default exists, Agent may in its discretion (and shall upon written direction of
Required Lenders) do any one or more of the following from time to time:
(a) declare any Obligations (other than Secured Bank Product Obligations) immediately due and
payable, whereupon they shall be due and payable without diligence, presentment, demand, protest or
notice of any kind, all of which are hereby waived by Obligors to the fullest extent permitted by
law;
(b) terminate, reduce or condition any Commitment, or make any adjustment to the Borrowing
Base;
(c) require Obligors to Cash Collateralize (or deliver a standby letter of credit acceptable
to Agent in its Permitted Discretion, in the amount of the required Cash Collateral) their LC
Obligations and any inchoate or contingent Obligations (including inchoate or contingent Secured
Bank Product Obligations) with respect to which a claim therefor has been asserted, and if Obligors
fail to deposit such Cash Collateral or such acceptable standby letter of credit, then Agent may
(and shall upon the direction of Required Lenders) advance the required Cash Collateral as Revolver
Loans (whether or not an Overadvance exists or is created thereby, or the conditions in Section 6
are satisfied);
(d) exercise all voting rights, or any other ownership or consensual rights (including any
dividend or distribution rights) in respect of any or all of the Pledged Equity, but under no
circumstances is Agent obligated by the terms of this Agreement to exercise such rights, and if
Agent duly exercises its right to vote any of such Pledged Equity, each Obligor hereby appoints
Agent as such Obligors true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote such Pledged
Equity in any manner Agent deems advisable for or against all matters submitted or which may be
submitted to a vote of shareholders, partners or members, as the case may be. The
power-of-attorney and proxy granted hereby is coupled with an interest and shall be irrevocable;
and
(e) exercise any other default rights or remedies afforded under any agreement, by law, at
equity or otherwise, including the rights and remedies of a secured party under the UCC. Such
rights and remedies include the rights to (i) take possession of any Collateral; (ii) require
Obligors to assemble Collateral, at Obligors expense, and make it available to Agent at a place
designated by Agent; (iii) enter any premises where Collateral is located and store Collateral on
such premises until sold (and if the premises are owned or leased by an Obligor, Obligors agree not
to charge for such storage); and (iv) sell or otherwise dispose of any Collateral in its then
condition, or after any further manufacturing or processing thereof, at public or private sale,
with such notice as may be required by Applicable Law, in lots or in bulk, at such locations, all
as Agent, in its discretion, deems advisable. Each Obligor agrees that 10 days notice of any
proposed sale or other disposition of Collateral by Agent shall be reasonable, and that any sale
conducted on the internet or to a licensor of Intellectual Property shall be commercially
reasonable. Agent may conduct sales on any Obligors premises, without charge, and any sale may be
adjourned from time to time in accordance with Applicable Law. Agent shall have the right to sell,
lease or otherwise dispose of any Collateral for cash, credit or any combination thereof, and Agent
may purchase any Collateral at public or, if permitted by law, private sale and, in lieu of actual
payment of the purchase price, may credit bid and set off the amount of such price against the
Obligations.
11.3 License. Agent is hereby granted an irrevocable, non-exclusive license or other right
to use, license or sub-license (without payment of royalty or other compensation to any Person) any
or all Intellectual Property of Obligors, computer hardware and software, trade secrets, brochures,
customer lists, promotional and advertising materials, labels, packaging materials and other
Property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or
otherwise exercising any rights or remedies with respect to, any Collateral. Each Obligors rights
and interests under Intellectual Property shall inure to Agents benefit.
11.4 Setoff. At any time during an Event of Default, Agent, Issuing Bank, Lenders, and any
of their Affiliates are authorized, to the fullest extent permitted by Applicable Law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever currency) at any time owing
by Agent, Issuing Bank, such Lender or such Affiliate to or for the credit or the account of an
Obligor against its Obligations, whether or not Agent, Issuing Bank, such Lender or such Affiliate
shall have made any demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or are owed to a branch or office of Agent, Issuing
Bank, such Lender or such Affiliate different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of Agent, Issuing Bank, each Lender and each such
Affiliate under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Person may have.
11.5 Remedies Cumulative; No Waiver.11.5.1 Cumulative RightsAll agreements,
warranties, guaranties, indemnities and other undertakings of Obligors under the Loan Documents are
cumulative and not in derogation of each other. The rights and remedies of Agent and Lenders under
the Loan Documents are cumulative, may be exercised at any time and from time to time, concurrently
or in any order, and are not exclusive of any other rights or remedies available by agreement, by
law, at equity or otherwise. All such rights and remedies shall continue in full force and effect
until Full Payment of the Obligations.
11.5.2 WaiversNo waiver or course of dealing shall be established by (a) the failure
or delay of Agent or any Lender to require strict performance by any Obligor under any Loan
Document, or to exercise any rights or remedies with respect to Collateral or otherwise; (b) the
making of any Loan or issuance of any Letter of Credit during a Default, Event of Default or other
failure to satisfy any conditions precedent; or (c) acceptance by Agent or any Lender of any
payment or performance by an Obligor under any Loan Documents in a manner other than that specified
therein. Any failure to satisfy a financial covenant on a measurement date shall not be cured or
remedied by satisfaction of such covenant on a subsequent date.
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SECTION 12.
12.1
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AGENT
Appointment, Authority and Duties of Agent |
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12.1.1 Appointment and AuthorityEach Secured Party appoints and designates Bank of
America as Agent under all Loan Documents. Agent may, and each Secured Party authorizes Agent to,
enter into all Loan Documents to which Agent is intended to be a party and accept all Security
Documents. Any action taken by Agent in accordance with the provisions of the Loan Documents, and
the exercise by Agent of any rights or remedies set forth therein, together with all other powers
reasonably incidental thereto, shall be authorized by and binding upon all Secured Parties.
Without limiting the generality of the foregoing, Agent shall have the sole and exclusive authority
to (a) act as the disbursing and collecting agent for Lenders with respect to all payments and
collections arising in connection with the Loan Documents; (b) execute and deliver as Agent each
Loan Document, including any intercreditor or subordination agreement, and accept delivery of each
Loan Document; (c) act as collateral agent for Secured Parties for purposes of perfecting and
administering Liens under the Loan Documents, and for all other purposes stated therein;
(d) manage, supervise or otherwise deal with Collateral; and (e) take any Enforcement Action or
otherwise exercise any rights or remedies with respect to any Collateral or under any Loan
Documents, Applicable Law or otherwise. Secured Parties agree that Agent alone shall be authorized
to determine eligibility and applicable advance rates under the Borrowing Base, whether to impose
or release any reserve, or whether any conditions to funding or issuance of a Letter of Credit have
been satisfied, which determinations and judgments, if exercised in good faith, Secured Parties
agree shall exonerate Agent from liability to any Secured Party or other Person for any error in
judgment.
12.1.2 DutiesThe title of Agent is used solely as a matter of market custom and the
duties of Agent are administrative in nature only. Agent has no duties except those expressly set
forth in the Loan Documents, and in no event does Agent have any agency, fiduciary or implied duty
to or relationship with any Secured Party or other Person by reason of any Loan Document or related
transaction. The conferral upon Agent of any right shall not imply a duty to exercise such right,
unless instructed to do so by Lenders in accordance with this Agreement.
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12.1.3 |
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Agent Professionals. |
Agent may perform its duties through agents and employees. Agent may consult with and employ
Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action
taken in good faith reliance upon, any advice given by an Agent Professional. Agent shall not be
responsible for the negligence or misconduct of any agents, employees or Agent Professionals
selected by it with reasonable care.
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12.1.4 |
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Instructions of Required Lenders. |
The rights and remedies conferred upon Agent under the Loan Documents may be exercised without
the necessity of joining any other party, unless required by Applicable Law. In determining
compliance with a condition for any action hereunder, including satisfaction of any condition in
Section 6, Agent may presume that the condition is satisfactory to a Secured Party unless Agent has
received notice to the contrary from such Secured Party before Agent takes the action. Agent may
request instructions from Required Lenders or other Secured Parties with respect to any act
(including the failure to act) in connection with any Loan Documents or Collateral, and may seek
assurances to its satisfaction from Secured Parties of their indemnification obligations against
Claims that could be incurred by Agent. Agent may refrain from any act until it has received such
instructions or assurances, and shall not incur liability to any Person by reason of so refraining.
Instructions of Required Lenders shall be binding upon all Secured Parties, and no Secured Party
shall have any right of action whatsoever against Agent as a result of Agent acting or refraining
from acting pursuant to instructions of Required Lenders. Notwithstanding the foregoing,
instructions by and consent of specific parties shall be required to the extent provided in Section
14.1.1. In no event shall Agent be required to take any action that it determines in its
discretion is contrary to Applicable Law or any Loan Documents or could subject any Agent
Indemnitee to liability.
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12.2 |
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Agreements Regarding Collateral and Borrower Materials |
12.2.1 Lien Releases; Care of CollateralSecured Parties authorize Agent to release any
Lien with respect to any Collateral (a) upon Full Payment of the Obligations; (b) that is the
subject of a disposition or Lien that Borrowers certify in writing is a Permitted Asset Disposition
or a Permitted Lien entitled to priority over Agents Liens (and Agent may rely conclusively on any
such certificate without further inquiry); (c) that does not constitute a material part of the
Collateral; or (d) subject to Section 14.1, with the consent of Required Lenders. Secured Parties
authorize Agent to subordinate its Liens to any Purchase Money Lien or other Lien entitled to
priority hereunder. Agent has no obligation to assure that any Collateral exists or is owned by an
Obligor, or is cared for, protected or insured, nor to assure that Agents Liens have been properly
created, perfected or enforced, or are entitled to any particular priority, nor to exercise any
duty of care with respect to any Collateral.
12.2.2 Possession of CollateralAgent and Secured Parties appoint each Lender as agent
(for the benefit of Secured Parties) for the purpose of perfecting Liens in any Collateral held or
controlled by such Lender, to the extent such Liens are perfected by possession or control. If any
Lender obtains possession or control of any Collateral, it shall notify Agent thereof and, promptly
upon Agents request, deliver such Collateral to Agent or otherwise deal with it in accordance with
Agents instructions.
12.2.3 ReportsAgent shall promptly provide to Lenders, when complete, any field
examination, audit or appraisal report prepared for Agent with respect to any Obligor or Collateral
(Report). Reports and other Borrower Materials may be made available to Lenders by
providing access to them on the Platform, but Agent shall not be responsible for system failures or
access issues that may occur from time to time. Each Lender agrees (a) that Reports are not
intended to be comprehensive audits or examinations, and that Agent or any other Person performing
an audit or examination will inspect only limited information and will rely significantly upon
Borrowers books, records and representations; (b) that Agent makes no representation or warranty
as to the accuracy or completeness of any Borrower Materials and shall not be liable for any
information contained in or omitted from any Borrower Materials, including any Report; and (c) to
keep all Borrower Materials confidential and strictly for such Lenders internal use, not to
distribute any Report or other Borrower Materials (or the contents thereof) to any Person (except
to such Lenders Participants, attorneys and accountants), and to use all Borrower Materials solely
for administration of the Obligations. Each Lender shall indemnify and hold harmless Agent and any
other Person preparing a Report from any action such Lender may take as a result of or any
conclusion it may draw from any Borrower Materials, as well as from any Claims arising as a direct
or indirect result of Agent furnishing same to such Lender, via the Platform or otherwise.
12.3 Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in
relying, upon any certification, notice or other communication (including those by telephone,
telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. Agent shall have a reasonable and practicable amount of
time to act upon any instruction, notice or other communication under any Loan Document, and shall
not be liable for any delay in acting.
12.4 Action Upon Default. Agent shall not be deemed to have knowledge of any Default or
Event of Default, or of any failure to satisfy any conditions in Section 6, unless it has received
written notice from Borrowers or Required Lenders specifying the occurrence and nature thereof. If
any Lender acquires knowledge of a Default, Event of Default or failure of such conditions, it
shall promptly notify Agent and the other Lenders thereof in writing. Each Secured Party agrees
that, except as otherwise provided in any Loan Documents or with the written consent of Agent and
Required Lenders, it will not take any Enforcement Action, accelerate Obligations (other than
Secured Bank Product Obligations) or assert any rights relating to any Collateral.
12.5 Ratable Sharing. If any Lender obtains any payment or reduction of any Obligation,
whether through set-off or otherwise, in excess of its ratable share of such Obligation, such
Lender shall forthwith purchase from Secured Parties participations in the affected Obligation as
are necessary to share the excess payment or reduction on a Pro Rata basis or in accordance with
Section 5.6.2, as applicable. If any of such payment or reduction is thereafter recovered from the
purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest. Notwithstanding the foregoing, if a Defaulting Lender obtains
a payment or reduction of any Obligation, it shall immediately turn over the full amount thereof to
Agent for application under Section 4.2.2 and it shall provide a written statement to Agent
describing the Obligation affected by such payment or reduction. No Lender shall set off against a
Dominion Account without Agents prior consent.
12.6 Indemnification. EACH SECURED PARTY SHALL INDEMNIFY AND HOLD HARMLESS AGENT
INDEMNITEES AND ISSUING BANK INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS, ON A PRO RATA
BASIS, AGAINST ALL CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE,
PROVIDED THAT ANY CLAIM AGAINST AN AGENT INDEMNITEE RELATES TO OR ARISES FROM ITS ACTING AS
OR FOR AGENT (IN THE CAPACITY OF AGENT). In Agents discretion, it may reserve for any Claims made
against an Agent Indemnitee or Issuing Bank Indemnitee, and may satisfy any judgment, order or
settlement relating thereto, from proceeds of Collateral prior to making any distribution of
Collateral proceeds to Secured Parties. If Agent is sued by any receiver, trustee or other Person
for any alleged preference or fraudulent transfer, then any monies paid by Agent in settlement or
satisfaction of such proceeding, together with all interest, costs and expenses (including
attorneys fees) incurred in the defense of same, shall be promptly reimbursed to Agent by each
Secured Party to the extent of its Pro Rata share.
12.7 Limitation on Responsibilities of Agent. Agent shall not be liable to any Secured
Party for any action taken or omitted to be taken under the Loan Documents, except for losses
directly and solely caused by Agents gross negligence or willful misconduct. Agent does not
assume any responsibility for any failure or delay in performance or any breach by any Obligor,
Lender or other Secured Party of any obligations under the Loan Documents. Agent does not make any
express or implied representation, warranty or guarantee to Secured Parties with respect to any
Obligations, Collateral, Liens, Loan Documents or Obligor. No Agent Indemnitee shall be
responsible to Secured Parties for any recitals, statements, information, representations or
warranties contained in any Loan Documents or Borrower Materials; the execution, validity,
genuineness, effectiveness or enforceability of any Loan Documents; the genuineness,
enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the
validity, extent, perfection or priority of any Lien therein; the validity, enforceability or
collectability of any Obligations; or the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent
Indemnitee shall have any obligation to any Secured Party to ascertain or inquire into the
existence of any Default or Event of Default, the observance by any Obligor of any terms of the
Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.
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12.8 |
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Successor Agent and Co-Agents. 12.8.1 Resignation;
Successor Agent. |
Agent may resign at any time by giving at least 30 days written notice thereof to Lenders and
Borrowers. Required Lenders may appoint a successor to replace the resigning Agent, which
successor shall be (a) a Lender or an Affiliate of a Lender; or (b) a financial institution
reasonably acceptable to Required Lenders and (provided no Default or Event of Default
exists) Borrowers. If no successor agent is appointed prior to the effective date of Agents
resignation, then Agent may appoint a successor agent that is a financial institution acceptable to
it (which shall be a Lender unless no Lender accepts the role) or in the absence of such
appointment, Required Lenders shall on such date assume all rights and duties of Agent hereunder.
Upon acceptance by any successor Agent of its appointment hereunder, such successor Agent shall
thereupon succeed to and become vested with all the powers and duties of the retiring Agent without
further act. On the effective date of its resignation, the retiring Agent shall be discharged from
its duties and obligations hereunder but shall continue to have all rights and protections under
the Loan Documents with respect to actions taken or omitted to be taken by it while Agent,
including the indemnification set forth in Sections 12.6 and 14.2, and all rights and protections
under this Section 12. Any successor to Bank of America by merger or acquisition of stock or this
loan shall continue to be Agent hereunder without further act on the part of any Secured Party or
Obligor.
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12.8.2 |
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Co-Collateral Agent. |
If appropriate under Applicable Law, Agent may appoint a Person to serve as a co-collateral
agent or separate collateral agent under any Loan Document. Each right, remedy and protection
intended to be available to Agent under the Loan Documents shall also be vested in such agent.
Secured Parties shall execute and deliver any instrument or agreement that Agent may request to
effect such appointment. If any such agent shall die, dissolve, become incapable of acting, resign
or be removed, then all the rights and remedies of the agent, to the extent permitted by Applicable
Law, shall vest in and be exercised by Agent until appointment of a new agent.
12.9 Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it has,
independently and without reliance upon Agent or any other Lenders, and based upon such documents,
information and analyses as it has deemed appropriate, made its own credit analysis of each Obligor
and its own decision to enter into this Agreement and to fund Loans and participate in LC
Obligations hereunder. Each Secured Party has made such inquiries as it feels necessary concerning
the Loan Documents, Collateral and Obligors. Each Secured Party acknowledges and agrees that the
other Secured Parties have made no representations or warranties concerning any Obligor, any
Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or
Obligations. Each Secured Party will, independently and without reliance upon any other Secured
Party, and based upon such financial statements, documents and information as it deems appropriate
at the time, continue to make and rely upon its own credit decisions in making Loans and
participating in LC Obligations, and in taking or refraining from any action under any Loan
Documents. Except for notices, reports and other information expressly requested by a Lender,
Agent shall have no duty or responsibility to provide any Secured Party with any notices, reports
or certificates furnished to Agent by any Obligor or any credit or other information concerning the
affairs, financial condition, business or Properties of any Obligor (or any of its
Affiliates) which may come into possession of Agent or its Affiliates.
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12.10 |
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Remittance of Payments and Collections.12.10.1
Remittances Generally. |
All payments by any Lender to Agent shall be made by the time and on the day set forth in this
Agreement, in immediately available funds. If no time for payment is specified or if payment is
due on demand by Agent and request for payment is made by Agent by 1:00 p.m. (pacific time) on a
Business Day, payment shall be made by Lender not later than 3:00 p.m. (pacific time) on such day,
and if request is made after 1:00 p.m. (pacific time), then payment shall be made by 11:00 a.m.
(pacific time) on the next Business Day. Payment by Agent to any Secured Party shall be made by
wire transfer, in the type of funds received by Agent. Any such payment shall be subject to
Agents right of offset for any amounts due from such payee under the Loan Documents.
12.10.2 Failure to PayIf any Secured Party fails to pay any amount when due by it to
Agent pursuant to the terms hereof, such amount shall bear interest, from the due date until paid
in full, at the greater of the Federal Funds Rate or the rate determined by Agent as customary for
interbank compensation for two Business Days and thereafter at the Default Rate for Base Rate
Revolver Loans. In no event shall Borrowers be entitled to credit for any interest paid by a
Secured Party to Agent, nor shall a Defaulting Lender be entitled to interest on amounts held by
Agent pursuant to Section 4.2.
12.10.3 Recovery of PaymentsIf Agent pays an amount to a Secured Party in the
expectation that a related payment will be received by Agent from an Obligor and such related
payment is not received, then Agent may recover such amount from the Secured Party. If Agent
determines that an amount received by it must be returned or paid to an Obligor or other Person
pursuant to Applicable Law or otherwise, then Agent shall not be required to distribute such amount
to any Secured Party. If any amounts received and applied by Agent to Obligations held by a
Secured Party are later required to be returned by Agent pursuant to Applicable Law, such Secured
Party shall pay to Agent, on demand, its share of the amounts required to be returned.
12.11 Individual Capacities. As a Lender, Bank of America shall have the same rights and
remedies under the Loan Documents as any other Lender, and the terms Lenders, Required Lenders
or any similar term shall include Bank of America in its capacity as a Lender. Agent, Lenders and
their Affiliates may accept deposits from, lend money to, provide Bank Products to, act as
financial or other advisor to, and generally engage in any kind of business with, Obligors and
their Affiliates, as if they were not Agent or Lenders hereunder, without any duty to account
therefor to any Secured Party. In their individual capacities, Agent, Lenders and their Affiliates
may receive information regarding Obligors, their Affiliates and their Account Debtors (including
information subject to confidentiality obligations), and shall have no obligation to provide such
information to any Secured Party.
12.12 Titles. Each Lender, other than Bank of America, that is designated in connection
with this credit facility as an Arranger, Bookrunner or Agent of any kind shall have no right
or duty under any Loan Documents other than those applicable to all Lenders, and shall in no event
have any fiduciary duty to any Secured Party.
12.13 Bank Product Providers. Each Secured Bank Product Provider, by delivery of a notice
to Agent of a Bank Product, agrees to be bound by the Loan Documents, including Sections 5.6, 12
and 14.3.3. Each Secured Bank Product Provider shall indemnify and hold harmless Agent
Indemnitees, to the extent not reimbursed by Obligors, against all Claims that may be incurred by
or asserted against any Agent Indemnitee in connection with such providers Secured Bank Product
Obligations.
12.14 No Third Party Beneficiaries. This Section 12 is an agreement solely among Secured
Parties and Agent, and shall survive Full Payment of the Obligations. Except as expressly set
forth in this Section 12, this Section 12 does not confer any rights or benefits upon Borrowers or
any other Person. As between Borrowers and Agent, any action that Agent may take under any Loan
Documents or with respect to any Obligations shall be conclusively presumed to have been authorized
and directed by Secured Parties.
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SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS |
13.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of Borrowers, Agent, Lenders, Secured Parties, and their respective successors and assigns, except
that (a) no Obligor shall have the right to assign its rights or delegate its obligations under any
Loan Documents; and (b) any assignment by a Lender must be made in compliance with Section 13.3.
Agent may treat the Person which made any Loan as the owner thereof for all purposes until such
Person makes an assignment in accordance with Section 13.3. Any authorization or consent of a
Lender shall be conclusive and binding on any subsequent transferee or assignee of such Lender.
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13.2 |
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Participations.13.2.1 Permitted Participants;
Effect |
Subject to Section 13.3.3, any Lender may sell to a financial institution (Participant) a
participating interest in the rights and obligations of such Lender under any Loan Documents.
Despite any sale by a Lender of participating interests to a Participant, such Lenders obligations
under the Loan Documents shall remain unchanged, it shall remain solely responsible to the other
parties hereto for performance of such obligations, it shall remain the holder of its Loans and
Commitments for all purposes, all amounts payable by Obligors shall be determined as if it had not
sold such participating interests, and Obligors and Agent shall continue to deal solely and
directly with such Lender in connection with the Loan Documents. Each Lender shall be solely
responsible for notifying its Participants of any matters under the Loan Documents, and Agent and
the other Lenders shall not have any obligation or liability to any such Participant. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 5.9 unless Obligors agree otherwise in writing.
Each Lender shall retain the sole right to approve, without the consent of any Participant,
any amendment, waiver or other modification of a Loan Document other than that which forgives
principal, interest or fees, reduces the stated interest rate or fees payable with respect to any
Loan or Commitment in which such Participant has an interest, postpones the Commitment Termination
Date or any date fixed for any regularly scheduled payment of principal, interest or fees on such
Loan or Commitment, or releases any Obligor or substantially all Collateral.
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13.2.3 |
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Participant Register |
Each Lender that sells a participation shall, acting as a non-fiduciary agent of Borrower
(solely for tax purposes), maintain a register in which it enters the Participants name, address
and interest in Commitments, Loans (and stated interest) and LC Obligations. Entries in the
register shall be conclusive, absent manifest error, and such Lender shall treat each Person
recorded in the register as the owner of the participation for all purposes, notwithstanding any
notice to the contrary. No Lender shall have an obligation to disclose any information in such
register except to the extent necessary to establish that a Participants interest is in registered
form under the Code.
Obligors agree that each Participant shall have a right of set-off in respect of its
participating interest to the same extent as if such interest were owing directly to a Lender, and
each Lender shall also retain the right of set-off with respect to any participating interests sold
by it. By exercising any right of set-off, a Participant agrees to share with Lenders all amounts
received through its set-off, in accordance with Section 12.5 as if such Participant were a Lender.
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13.3 |
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Assignments. 13.3.1 Permitted Assignments |
A Lender may assign to an Eligible Assignee any of its rights and obligations under the Loan
Documents, as long as (a) each assignment is of a constant, and not a varying, percentage of the
transferor Lenders rights and obligations under the Loan Documents and, in the case of a partial
assignment, is in a minimum principal amount of $25,000,000 (unless otherwise agreed by Agent in
its discretion, and, if no Event of Default exists, Borrower Agent in its discretion) and integral
multiples of $5,000,000 in excess of that amount; (b) except in the case of an assignment in whole
of a Lenders rights and obligations, the aggregate amount of the Commitments retained by the
transferor Lender is at least $25,000,000 (unless otherwise agreed by Agent in its discretion, and,
if no Event of Default exists, Borrower Agent in its discretion); and (c) the parties to each such
assignment shall execute and deliver an Assignment to Agent for acceptance and recording. Nothing
herein shall limit the right of a Lender to pledge or assign any rights under the Loan Documents to
secure obligations of such Lender, including a pledge or assignment to a Federal Reserve Bank;
provided, however, that no such pledge or assignment shall release the Lender from
its obligations hereunder nor substitute the pledge or assignee for such Lender as a party hereto.
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13.3.2 |
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Effect; Effective Date |
Upon delivery to Agent of an assignment notice in the form of Exhibit D and a processing fee
of $3,500 (unless otherwise agreed by Agent in its discretion), the assignment shall become
effective as specified in the notice, if it complies with this Section 13.3. From such effective
date, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents, and shall
have all rights and obligations of a Lender thereunder. Upon consummation of an assignment, the
transferor Lender, Agent and Borrowers shall make appropriate arrangements for issuance of
replacement and/or new notes, if applicable. The transferee Lender shall comply with Section 5.10
and deliver, upon request, an administrative questionnaire satisfactory to Agent.
No assignment or participation may be made to Obligors, an Affiliate of an Obligor, a
Defaulting Lender or a natural Person. Agent shall have no obligation to determine whether any
assignee is permitted under the Loan Documents. Assignment by a Defaulting Lender shall be
effective only if there is concurrent satisfaction of all outstanding obligations of the Defaulting
Lender under the Loan Documents in a manner satisfactory to Agent, including payment by the
Eligible Assignee or Defaulting Lender to Agent of an aggregate amount sufficient upon distribution
(through direct payment, purchases of participations or other methods acceptable to Agent) to
satisfy all funding and payment liabilities of the Defaulting Lender. If assignment by a
Defaulting Lender occurs (by operation of law or otherwise) without compliance with the foregoing
sentence, the assignee shall be deemed a Defaulting Lender for all purposes until compliance
occurs.
Agent, acting as a non-fiduciary agent of Borrowers (solely for tax purposes), shall maintain
(a) a copy (or electronic equivalent) of each Assignment delivered to it, and (b) a register for
recordation of the names, addresses and Commitments of, and the Loans, interest and LC Obligations
owing to, each Lender. Entries in the register shall be conclusive, absent manifest error, and
Borrowers, Agent and Lenders shall treat each Person recorded in such register as a Lender for all
purposes under the Loan Documents, notwithstanding any notice to the contrary. Agent may choose to
show only one Borrower as the borrower in the register, without any effect on the liability of any
Obligor with respect to the Obligations. The register shall be available for inspection by
Borrowers or any Lender, from time to time upon reasonable notice.
13.4 Replacement of Certain Lenders. If a Lender (a) within the last 120 days failed to
give its consent to any amendment, waiver or action for which consent of all Lenders was required
and Required Lenders consented, (b) is a Defaulting Lender, or (c) within the last 120 days gave a
notice under Section 3.5 or requested payment or compensation under Section 3.7 or 5.9 (and has not
designated a different Lending Office pursuant to Section 3.8), then Agent or Borrower Agent may,
upon 10 days notice to such Lender, require it to assign its rights and obligations under the Loan
Documents to Eligible Assignee(s), pursuant to appropriate Assignment(s), within 20 days after the
notice. Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment if such
Lender fails to execute it. Such Lender shall be entitled to receive, in cash, concurrently with
such assignment, all amounts owed to it under the Loan Documents through the date of assignment.
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SECTION 14. |
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MISCELLANEOUS |
14.1 |
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Consents, Amendments and Waivers. |
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14.1.1 |
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Amendment |
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No modification of any Loan Document, including any extension or amendment of a Loan Document
or any waiver of a Default or Event of Default, shall be effective without the prior written
agreement of Agent (with the consent of Required Lenders) and each Obligor party to such Loan
Document; provided, however, that
(a) without the prior written consent of Agent, no modification shall alter any provision in a
Loan Document that relates to any rights, duties or discretion of Agent;
(b) without the prior written consent of Issuing Bank, no modification shall alter Section 2.3
or any other provision in a Loan Document that relates to Letters of Credit or any rights, duties
or discretion of Issuing Bank;
(c) without the prior written consent of each affected Lender, including a Defaulting Lender,
no modification shall (i) increase the Commitment of such Lender; (ii) reduce the amount of, or
waive or delay payment of, any principal, interest or fees payable to such Lender (except as
provided in Section 4.2); (iii) extend the Revolver Termination Date applicable to such Lenders
Obligations; or (iv) amend this clause (c);
(d) without the prior written consent of all Lenders (except any Defaulting Lender), no
modification shall (i) alter Section 5.6.2, 7.1 (except to add Collateral) or 14.1.1; (ii) amend
the definition of Pro Rata or Required Lenders; (iii) release all or substantially all Collateral;
or (iv) except in connection with a merger, disposition or similar transaction expressly permitted
hereby, release any Obligor from liability for any Obligations;
(e) without the prior written consent of the Supermajority Lenders, amend the definition of
Borrowing Base (or any defined term used in such definition) if the effect of such amendment is to
increase borrowing availability; and
(f) without the prior written consent of a Secured Bank Product Provider, no modification
shall affect its relative payment priority under Section 5.6.2.
The agreement of Obligors shall not be required for any modification of a Loan Document that
deals solely with the rights and duties of Lenders, Agent and/or Issuing Bank as among themselves.
Only the consent of the parties to any agreement relating to fees or a Bank Product shall be
required for modification of such agreement, and no Bank Product provider (in such capacity) shall
have any right to consent to modification of any Loan Document other than its Bank Product
agreement. Any waiver or consent granted by Agent or Lenders hereunder shall be effective only if
in writing and only for the matter specified.
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14.1.3 |
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Payment for Consents |
No Obligors will, directly or indirectly, pay any remuneration or other thing of value,
whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender
hereunder) as consideration for agreement by such Lender with any modification of any Loan
Documents, unless such remuneration or value is concurrently paid, on the same terms, on a Pro Rata
basis to all Lenders providing their consent.
14.2 Indemnity. EACH OBLIGOR SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST ANY
CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS ASSERTED BY ANY
OBLIGOR OR OTHER PERSON OR ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE. In no event shall any
party to a Loan Document (including the Obligors) have any obligation thereunder to indemnify or
hold harmless an Indemnitee with respect to a Claim that is determined in a final, non-appealable
judgment by a court of competent jurisdiction to result from the gross negligence or willful
misconduct of such Indemnitee.
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14.3 |
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Notices and Communications. |
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14.3.1 |
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Notice Address |
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Subject to Section 4.1.4, all notices and other communications by or to a party hereto shall
be in writing and shall be given to any Obligor, at Borrower Agents address shown on the signature
pages hereof, and to any other Person at its address shown on the signature pages hereof (or, in
the case of a Person who becomes a Lender after the Closing Date, at the address shown on its
Assignment), or at such other address as a party may hereafter specify by notice in accordance with
this Section 14.3. Each communication shall be effective only (a) if given by facsimile
transmission, when transmitted to the applicable facsimile number, if confirmation of receipt is
received; (b) if given by mail, three Business Days after deposit in the U.S. mail, with
first-class postage pre-paid, addressed to the applicable address; or (c) if given by personal
delivery, when duly delivered to the notice address with receipt acknowledged. Notwithstanding the
foregoing, no notice to Agent pursuant to Section 2.1.4, 2.3, 3.1.2, or 4.1.1 shall be effective
until actually received by the individual to whose attention at Agent such notice is required to be
sent. Any written communication that is not sent in conformity with the foregoing provisions shall
nevertheless be effective on the date actually received by the noticed party. Any notice received
by Borrower Agent shall be deemed received by all Obligors.
Electronic communications (including e-mail, messaging and websites) may be used only in a
manner acceptable to Agent and only for routine communications, such as delivery of Borrower
Materials, administrative matters, distribution of Loan Documents and matters permitted under
Section 4.1.4. Secured Parties make no assurance as to the privacy or security of electronic
communications. E-mail and voice mail shall not be effective notices under the Loan Documents.
Borrower Materials shall be delivered pursuant to procedures approved by Agent, including
electronic delivery (if possible) upon request by Agent to an electronic system maintained by Agent
(Platform). Borrowers shall notify Agent of each posting of Borrower Materials on the
Platform and the materials shall be deemed received by Agent only upon its receipt of such notice.
Borrower Materials and other information relating to this credit facility may be made available to
Secured Parties on the Platform. The Platform is provided as is and as available. Agent does
not warrant the accuracy or completeness of any information on the Platform nor the adequacy or
functioning of the Platform, and expressly disclaims liability for any errors or omissions in the
Borrower Materials or any issues involving the Platform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
AGENT WITH RESPECT TO BORROWER MATERIALS OR THE PLATFORM. No Agent Indemnitee shall have any
liability to Obligors, Secured Parties or any other Person for losses, claims, damages, liabilities
or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of
the Platform, including any unintended recipient, nor for delivery of Borrower Materials and other
information via the Platform, internet, e-mail, or any other electronic platform or messaging
system.
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14.3.4 |
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Public Information |
Obligors and Secured Parties acknowledge that public information may not be segregated from
material non-public information on the Platform. Secured Parties acknowledge that Borrower
Materials may include Obligors material non-public information, and should not be made available
to personnel who do not wish to receive such information or may be engaged in investment or other
market-related activities with respect to an Obligors securities.
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14.3.5 |
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Non-Conforming Communications |
Agent and Lenders may rely upon any communications purportedly given by or on behalf of
Obligors even if they were not made in a manner specified herein, were incomplete or were not
confirmed, or if the terms thereof, as understood by the recipient, varied from a later
confirmation. Each Obligor shall indemnify and hold harmless each Indemnitee from any liabilities,
losses, costs and expenses arising from any electronic or telephonic communication purportedly
given by or on behalf of any Obligor.
14.4 Performance of Obligors Obligations; Lien Waivers(a) Agent may, in its
discretion at any time and from time to time, at Obligors expense, pay any amount or do any act
either (i) required of any Obligor under any Loan Documents (to the extent such Obligor has not
made payment or taken such action by the time required under such Loan Document) or (ii) authorized
pursuant to this Agreement or any other Loan Document to (A) enforce any Loan Documents or collect
any Obligations; (B) protect, insure, maintain or realize upon any Collateral; or (C) defend or
maintain the validity or priority of Agents Liens in any Collateral, including any payment of a
judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim,
or any discharge of a Lien. All payments, costs and expenses (including Extraordinary Expenses) of
Agent under this Section shall be reimbursed to Agent by Obligors, on demand, with interest from
the date incurred until paid in full, at the Default Rate applicable to Base Rate Revolver Loans.
Any payment made or action taken by Agent under this Section shall be without prejudice to any
right to assert an Event of Default or to exercise any other rights or remedies under the Loan
Documents.
(b) Agent may, in its discretion at any time and from time to time, give any notice pursuant
to, or otherwise exercise any right available to it under, any Lien Waiver to the extent that the
same is not prohibited by the terms of this Agreement or the other Loan Documents. Notwithstanding
the foregoing, Agent agrees that, unless a Default or Event of Default exists or Availability
(calculated without giving effect to Availability based on any Eligible In-Transit Inventory) is in
an amount less than or equal to 25% of all Revolver Commitments, Agent will not make any request
under any Lien Waiver to cause any foreign vendor to require carriers of imported goods to issue
only tangible negotiable bills of lading (as defined in Article 7 of the UCC) to the order of
Borrower as consignee or to the order of Bank of America, N.A. as consignee.
14.5 Credit Inquiries. Agent and Lenders may (but shall have no obligation) to respond to
usual and customary credit inquiries from third parties concerning any Obligor or Subsidiary.
14.6 Severability. Wherever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be valid under Applicable Law. If any provision is found to be
invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the
remaining provisions of the Loan Documents shall remain in full force and effect.
14.7 Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are
cumulative. The parties acknowledge that the Loan Documents may use several limitations or
measurements to regulate similar matters, and they agree that these are cumulative and that each
must be performed as provided. Except as otherwise provided in another Loan Document (by specific
reference to the applicable provision of this Agreement), if any provision contained herein is in
direct conflict with any provision in another Loan Document, the provision herein shall govern and
control.
14.8 Counterparts; Execution. Any Loan Document may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement shall become effective when Agent has received counterparts bearing the
signatures of all parties hereto. Agent may (but shall have no obligation to) accept any
signature, contract formation or record-keeping through electronic means, which shall have the same
legal validity and enforceability as manual or paper-based methods, to the fullest extent permitted
by Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any similar state law based on the
Uniform Electronic Transactions Act.
14.9 Entire Agreement. Time is of the essence with respect to all Loan Documents and
Obligations. The Loan Documents constitute the entire agreement, and supersede all prior
understandings and agreements, among the parties relating to the subject matter thereof.
14.10 Relationship with Lenders. The obligations of each Lender hereunder are several, and
no Lender shall be responsible for the obligations or Commitments of any other Lender. Amounts
payable hereunder to each Lender shall be a separate and independent debt. It shall not be
necessary for Agent or any other Lender to be joined as an additional party in any proceeding for
such purposes. Nothing in this Agreement and no action of Agent, Lenders or any other Secured
Party pursuant to the Loan Documents or otherwise shall be deemed to constitute Agent and any
Secured Party to be a partnership, joint venture or similar arrangement, nor to constitute control
of any Obligor.
14.11 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated by any Loan Document, Obligors acknowledge and agree that (a)(i) this
credit facility and any arranging or other services by Agent, any Lender, any of their Affiliates
or any arranger are arms-length commercial transactions between Obligors and their Affiliates, on
one hand, and Agent, any Lender, any of their Affiliates or any arranger, on the other hand;
(ii) Obligors have consulted their own legal, accounting, regulatory and tax advisors to the extent
they have deemed appropriate; and (iii) Obligors are capable of evaluating, and understand and
accept, the terms, risks and conditions of the transactions contemplated by the Loan Documents;
(b) each of Agent, Lenders, their Affiliates and any arranger is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary for any Obligor, any Obligors Affiliates
or any other Person, and has no obligation with respect to the transactions contemplated by the
Loan Documents except as expressly set forth therein; and (c) Agent, Lenders, their Affiliates and
any arranger may be engaged in a broad range of transactions that involve interests that differ
from those of Obligors and their Affiliates, and have no obligation to disclose any of such
interests to Obligors or its Affiliates. To the fullest extent permitted by Applicable Law, each
Obligor hereby waives and releases any claims that it may have against Agent, Lenders, their
Affiliates and any arranger with respect to any breach of agency or fiduciary duty in connection
with any transaction contemplated by a Loan Document.
14.12 Confidentiality. Each of Agent, Lenders and Issuing Bank shall maintain the
confidentiality of all Information (as defined below), except that Information may be disclosed
(a) to its Affiliates, and to its and their partners, directors, officers, employees, agents,
advisors and representatives (provided they are informed of the confidential nature of the
Information and instructed to keep it confidential); (b) to the extent requested by any
governmental, regulatory or self-regulatory authority purporting to have jurisdiction over it or
its Affiliates; (c) to the extent required by Applicable Law or by any subpoena or other legal
process (in which case Agent, Lender or Issuing Bank shall notify Agent Borrower to the extent
practicable and lawfully permitted to do so); (d) to any other party hereto; (e) in connection with
any action or proceeding relating to any Loan Documents or Obligations; (f) subject to an agreement
containing provisions substantially the same as this Section, to any Transferee or any actual or
prospective party (or its advisors) to any Bank Product or to any swap, derivative or other
transaction under which payments are to be made by reference to an Obligor or Obligors
obligations; (g) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) is available to Agent, any Lender, Issuing Bank or any
of their Affiliates on a nonconfidential basis from a source (which has not received such
Information as a result of a breach of this provision) other than Obligors; (h) on a confidential
basis to a provider of a Platform; or (i) with the consent of Borrower Agent. Notwithstanding the
foregoing, Agent and Lenders may publish or disseminate general information concerning this credit
facility for league table, tombstone and advertising purposes, and may, with prior written consent
of the Borrower Agent, use Obligors logos, trademarks or product photographs in advertising
materials, which consent shall be perpetual once granted. As used herein, Information
means all information received from an Obligor or Subsidiary relating to it or its business, other
than any information that is available to Agent, any Lender or Issuing Bank on a nonconfidential
basis (other than as a result of a breach of this Section) prior to disclosure by the Obligor or
Subsidiary, provided that, in the case of information received from an Obligor or
Subsidiary after the date hereof, such information is clearly identified at the time of delivery as
confidential. A Person required to maintain the confidentiality of Information pursuant to this
Section shall be deemed to have complied if it exercises a degree of care similar to that accorded
its own confidential information. Each of Agent, Lenders and Issuing Bank acknowledges that
(i) Information may include material non-public information; (ii) it has developed compliance
procedures regarding the use of such information; and (iii) it will handle the material non-public
information in accordance with Applicable Law.
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14.13 |
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[Intentionally Omitted]. |
14.14 GOVERNING LAW. UNLESS EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS AND ALL CLAIMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION (EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS).
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14.15 |
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Consent to Forum. |
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14.15.1 |
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Forum |
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EACH OBLIGOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITTING IN NEW
YORK COUNTY, NEW YORK OR IN THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
IN ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING RELATING IN ANY WAY TO ANY LOAN DOCUMENTS,
AND AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY
IN ANY SUCH COURT. EACH OBLIGOR IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL CLAIMS, OBJECTIONS AND
DEFENSES THAT IT MAY HAVE REGARDING ANY SUCH COURTS PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE
OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
JURISDICTION OF SUCH COURTS AND CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 14.3.1. A final judgment in any proceeding of any such court shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or any other manner provided by
Applicable Law.
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14.15.2 |
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Other Jurisdictions |
Nothing herein shall limit the right of Agent or any Lender to bring proceedings against any
Obligor in any other court, nor limit the right of any party to serve process in any other manner
permitted by Applicable Law. Nothing in this Agreement shall be deemed to preclude enforcement by
Agent of any judgment or order obtained in any forum or jurisdiction.
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14.15.3 |
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Judicial Reference |
If any action, litigation or proceeding relating to any Obligations or Loan Documents is filed
in a court sitting in or applying the laws of California, and the court determines that
notwithstanding Section 14.14, the laws of California apply to such action, litigation or
proceeding or such laws govern the Obligations or Loan Documents, and each party to such action,
litigation or proceeding does not subsequently effectively waive under California law its right to
a trial by jury, then the court shall, and is hereby directed to, make a general reference pursuant
to Cal. Civ. Proc. Code §638 to a referee (who shall be an active or retired judge) to hear and
determine all issues in such case (whether fact or law) and to report a statement of decision.
Nothing in this Section shall limit any right of Agent or any other Secured Party to exercise
self-help remedies, such as setoff, foreclosure or sale of any Collateral, or to obtain provisional
or ancillary remedies from a court of competent jurisdiction before, during or after any judicial
reference. The exercise of a remedy does not waive the right of any party to resort to judicial
reference. At Agents option, foreclosure under a mortgage or deed of trust may be accomplished
either by exercise of power of sale thereunder or by judicial foreclosure.
14.16 Waivers by Obligors. To the fullest extent permitted by Applicable Law, each Obligor
waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in any
proceeding or dispute of any kind relating in any way to any Loan Documents, Obligations or
Collateral; (b) notice after the occurrence, and during the continuation, of an Event of Default,
prior to taking possession or control of any Collateral; (c) any bond or security that might be
required by a court prior to allowing Agent to exercise any rights or remedies; (d) the benefit of
all valuation, appraisement and exemption laws; (e) any claim against Agent, Issuing Bank or any
Lender, on any theory of liability, for special, indirect, consequential, exemplary or punitive
damages (as opposed to direct or actual damages) in any way relating to any Enforcement Action,
Obligations, Loan Documents or transactions relating thereto; and (f) notice of acceptance hereof.
Each Obligor acknowledges that the foregoing waivers are a material inducement to Agent, Issuing
Bank and Lenders entering into this Agreement and that they are relying upon the foregoing in their
dealings with Obligors. Each Obligor has reviewed the foregoing waivers with its legal counsel and
has knowingly and voluntarily waived its jury trial and other rights following consultation with
legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a
trial by the court.
14.17 Patriot Act Notice. Agent and Lenders hereby notify Obligors that pursuant to the
Patriot Act, Agent and Lenders are required to obtain, verify and record information that
identifies each Obligor, including its legal name, address, tax ID number and other information
that will allow Agent and Lenders to identify it in accordance with the Patriot Act. Agent and
Lenders will also require information regarding each personal guarantor, if any, and may require
information regarding an Obligors management and owners, such as legal name, address, social
security number and date of birth. Each Obligor shall, promptly upon request, provide all
documentation and other information as Agent, Issuing Bank or any Lender may request from time to
time in order to comply with any obligations under any know your customer, anti-money laundering
or other requirements of Applicable Law.
14.18 NO ORAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE
PARTIES.
[Remainder of page intentionally left blank; signatures begin on following page]IN
WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set forth above.
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BORROWER AND BORROWER AGENT: |
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SKECHERS U.S.A., INC.,
a Delaware corporation
By: /s/ David Weinberg |
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Name: David Weinberg
Title: Chief Financial Officer
and Chief Operating Officer
Address: |
225 South Sepulveda Blvd.
Manhattan Beach, CA 90266
Attn: Philip Paccione
Telecopy: 310.406.0160 |
BORROWERS: |
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SKECHERS U.S.A., INC. II,
a Delaware corporation
By: /s/ David Weinberg |
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Name: David Weinberg
Title: Chief Financial Officer
SKECHERS BY MAIL, INC.,
a Delaware corporation
By: /s/ David Weinberg |
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Name: David Weinberg
Title: Chief Financial Officer |
1
2
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GUARANTORS: |
SAVVAS CAFE, INC., |
a Delaware corporation |
By: /s/ |
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David Weinberg |
Name: David Weinberg |
Title: Chief Executive Officer |
and Chief Financial Officer |
BRANDBLACK, LLC, |
a California limited liability company |
by: SKECHERS U.S.A., INC., |
a Delaware corporation, |
its sole member and manager |
By: /s/ |
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David Weinberg |
Name: David Weinberg |
Title: Chief Financial Officer |
and Chief Operating Officer |
3
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AGENT AND LENDERS: |
BANK OF AMERICA, N.A., |
as Agent and Lender |
By: /s/ Stephen King |
Name: Stephen King |
Title: Senior Vice President |
Address: |
333 South Hope Street, 13th Floor |
Los Angeles, CA 90071 |
Attn: Stephen King |
Telecopy: 312.453.5167 |
4
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HSBC BANK USA, NATIONAL ASSOCIATION, |
as a Lender |
By: /s/ Jean M. Frammolino |
Name: Jean M. Frammolino |
Title: Vice President |
Address: |
HSBC Bank USA, N.A. |
452 Fifth Avenue, Fl 4 |
New York, New York 10018 |
Attn: Thomas Kainamura, SVP Relationship Manager, Asset Based Lending |
Telecopy: 212-525-2520 |
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MUFG UNION BANK, N.A., |
as a Lender
By: /s/ Pete Ehlinger |
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Name: Pete Ehlinger
Title: Vice President
Address: |
445 South Figueroa Street
13th Floor
Los Angeles, California 90071
Attn: Pete Ehlinger
Telecopy: 213-236-6089 |
EXHIBIT A
to
Loan and Security Agreement
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Loan and Security Agreement dated as of June 30, 2015, as amended
(Loan Agreement), among SKECHERS U.S.A., INC., a Delaware corporation
(Skechers), Skechers U.S.A., Inc. II, a Delaware corporation (Skechers II),
Skechers by Mail, Inc., a Delaware corporation (Skechers By Mail and, together with
Skechers and Skechers II, collectively, the Borrowers and, individually, each a
Borrower), the other Persons party thereto from time to time as Guarantors (the
Guarantors), the financial institutions party thereto from time to time as Lenders (the
Lenders), and BANK OF AMERICA, N.A., a national banking association, as agent for the
Lenders (Agent). Unless defined herein, terms are used herein as defined in the Loan
Agreement.
(Assignor) and
(Assignee) agree as follows:
1. Assignor hereby assigns to Assignee and Assignee hereby purchases and assumes from Assignor
(a) a principal amount of $ of Assignors outstanding Revolver Loans and $ of
Assignors participations in LC Obligations, and (b) the amount of $ of Assignors
Revolver Commitment (which represents % of the total Revolver Commitments) (the foregoing items
being, collectively, Assigned Interest), together with an interest in the Loan Documents
corresponding to the Assigned Interest. This Assignment and Acceptance shall be effective as of
the date (Effective Date) indicated in the corresponding Assignment Notice delivered to
Agent, provided such Assignment Notice is executed by Assignor, Assignee, Agent and
Borrower Agent, if applicable. From and after the Effective Date, Assignee hereby expressly
assumes, and undertakes to perform, all of Assignors obligations in respect of the Assigned
Interest, and all principal, interest, fees and other amounts which would otherwise be payable to
or for Assignors account in respect of the Assigned Interest shall be payable to or for Assignees
account, to the extent such amounts accrue on or after the Effective Date.
2. Assignor (a) represents that as of the date hereof, prior to giving effect to this
Assignment and Acceptance, its Revolver Commitment is $ , and the outstanding balance of
its Revolver Loans and participations in LC Obligations is $ ; (b) makes no representation
or warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Agreement or any other
instrument or document furnished pursuant thereto, other than that Assignor is the legal and
beneficial owner of the interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; and (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or the performance by Borrowers
of their obligations under the Loan Documents. [Assignor is attaching the promissory note[s] held
by it and requests that Agent exchange such note[s] for new promissory notes payable to Assignee
[and Assignor].]
3. Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment; (b) confirms that it has received copies of the Loan Agreement and such other Loan
Documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment; (c) agrees that it shall, independently and without reliance upon
Assignor and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents;
(d) confirms that it is an Eligible Assignee; (e) appoints and authorizes Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Agreement as are delegated to
Agent by the terms thereof, together with such powers as are incidental thereto; (f) agrees that it
will observe and perform all obligations that are required to be performed by it as a Lender
under the Loan Documents; and (g) represents and warrants that the assignment evidenced hereby will
not result in a non-exempt prohibited transaction under Section 406 of ERISA.
4. This Assignment and Acceptance shall be governed by the laws of the State of New York,
without regard to conflicts of law principles that would require the application of the laws of
another jurisdiction (but giving effect to federal laws relating to national banks). If any
provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent
of such invalidity and the remaining provisions of this Assignment and Acceptance shall remain in
full force and effect.
5. Each notice or other communication hereunder shall be in writing, shall be sent by
messenger, by telecopy or facsimile transmission, or by first-class mail, shall be deemed given
when sent and shall be sent as follows:
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(a) |
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If to Assignee, to the following address (or to such other
address as Assignee may designate from time to time): |
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(b) |
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If to Assignor, to the following address (or to such other
address as Assignor may designate from time to time): |
Payments hereunder shall be made by wire transfer of immediately available Dollars as follows:
If to Assignee, to the following account (or to such other account as Assignee may designate
from time to time):
ABA No.
Account No.
Reference:
If to Assignor, to the following account (or to such other account as Assignor may designate
from time to time):
ABA No.
Account No.
Reference:
5
IN WITNESS WHEREOF, this Assignment and Acceptance is executed as of .
(Assignee)
By
Title:
(Assignor)
By
Title:
EXHIBIT B
to
Loan and Security Agreement
FORM OF REVOLVER NOTE
SKECHERS U.S.A., INC., a Delaware corporation (Skechers), SKECHERS U.S.A., INC. II,
a Delaware corporation (Skechers II), SKECHERS BY MAIL, INC., a Delaware corporation
(Skechers By Mail and, together with Skechers, Skechers II and any other Person
hereinafter joined as a Borrower pursuant to the Loan Agreement described below, each a
Borrower and, collectively, Borrowers), for value received, hereby
unconditionally promise to pay, on a joint and several basis, to the order of
(Lender), the principal sum of ($ ), or such lesser
amount as may be advanced by Lender as Revolver Loans and owing as LC Obligations from time to time
under the Loan Agreement described below, together with all accrued and unpaid interest thereon.
Terms are used herein as defined in the Loan and Security Agreement dated as of June 30, 2015,
among Borrowers, the other Persons party thereto from time to time as Guarantors, Bank of America,
N.A., as Agent, Lender, and certain other financial institutions, as such agreement may be amended,
restated, supplemented, renewed, extended or otherwise modified from time to time (the Loan
Agreement).
Principal of and interest on this Revolver Note (this Note) from time to time
outstanding shall be due and payable as provided in the Loan Agreement. This Note is issued
pursuant to and evidences Revolver Loans and LC Obligations under the Loan Agreement, to which
reference is made for a statement of the rights and obligations of Lender and the duties and
obligations of Borrowers. The Loan Agreement contains provisions for acceleration of the maturity
of this Note upon the happening of certain stated events, and for the borrowing, prepayment and
reborrowing of amounts upon specified terms and conditions.
The holder of this Note is hereby authorized by Borrowers to record on a schedule annexed to
this Note (or on a supplemental schedule) the amounts owing with respect to Revolver Loans and LC
Obligations, and the payment thereof. Failure to make any notation, however, shall not affect the
rights of the holder of this Note or any obligations of Borrowers hereunder or under any other Loan
Documents.
Time is of the essence of this Note. Each Borrower and all endorsers, sureties and guarantors
of this Note hereby severally waive demand, presentment for payment, protest, notice of protest,
notice of intention to accelerate the maturity of this Note, diligence in collecting, the bringing
of any suit against any party, and any notice of or defense on account of any extensions, renewals,
partial payments, or changes in any manner of or in this Note or in any of its terms, provisions
and covenants, or any releases or substitutions of any security, or any delay, indulgence or other
act of any trustee or any holder hereof, whether before or after maturity. Borrowers jointly and
severally agree to pay, and to save the holder of this Note harmless against, any liability for the
payment of all costs and expenses (including without limitation reasonable attorneys fees) if this
Note is collected by or through an attorney-at-law.
In no contingency or event whatsoever shall the amount paid or agreed to be paid to the holder
of this Note for the use, forbearance or detention of money advanced hereunder exceed the highest
lawful rate permitted under Applicable Law. If any such excess amount is inadvertently paid by
Borrowers or inadvertently received by the holder of this Note, such excess shall be returned to
Borrowers or credited as a payment of principal, in accordance with the Loan Agreement. It is the
intent hereof that Borrowers not pay or contract to pay, and that holder of this Note not receive
or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that
which may be paid by Borrowers under Applicable Law.
This Note shall be governed by the laws of the State of New York, without regard to conflicts
of law principles that would require the application of the laws of another jurisdiction (but
giving effect to federal laws relating to national banks).
IN WITNESS WHEREOF, this Revolver Note is executed as of the date first set forth
above.
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SKECHERS U.S.A., INC.,
a Delaware corporation
By: |
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Name: |
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Title: |
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Skechers U.S.A., Inc. II,
a Delaware corporation
By: |
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Name: |
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Title: |
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Skechers by Mail, Inc.,
a Delaware corporation
By: |
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Name: |
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Title: |
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[Other Borrowers, IF ANY
By: |
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Name: |
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Title: ] |
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EXHIBIT C
to
Loan and Security Agreement
FORM OF COMPLIANCE CERTIFICATE
This COMPLIANCE CERTIFICATE is executed and delivered under and pursuant to the terms of that
certain Loan and Security Agreement, dated as of June 30, 2015 (as such agreement may be amended,
restated, supplemented or otherwise modified from time to time, the Loan Agreement), by
and among SKECHERS U.S.A., INC., a Delaware corporation (Skechers), Skechers U.S.A., Inc.
II, a Delaware corporation (Skechers II), Skechers by Mail, Inc., a Delaware corporation
(Skechers By Mail and, together with Skechers and Skechers II, collectively, the
Borrowers and, individually, each a Borrower), the other Persons party thereto
from time to time as Guarantors, the financial institutions party to thereto from time to time as
Lenders (the Lenders), and BANK OF AMERICA, N.A., a national banking association, as
agent for the Lenders (in such capacity, the Agent). Initially capitalized terms used
but not defined herein have the respective meanings set forth in the Loan Agreement.
The undersigned, being a duly appointed and acting Senior Officer of the Borrower Agent, being
duly authorized, hereby delivers this Compliance Certificate to Agent, pursuant to
Section 10.1.2(d) of the Loan Agreement.
1. The undersigned hereby delivers to Agent [check as applicable]:
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[ ] the Fiscal Year end balance sheets as of the close of Fiscal Year 20[ ] and
the related statements of income, cash flow and shareholders equity for such Fiscal
Year, for Skechers on a Consolidated Basis, setting forth in comparative form
corresponding figures for the preceding Fiscal Year, together with the report thereon
from a firm of independent certified public accountants of recognized standing
reasonably acceptable to Agent as required by Section 10.1.2(a) of the Loan
Agreement, dated as of , ; |
|
|
|
[ ] the Fiscal Quarter end unaudited balance sheets as of the close of the Fiscal
Quarter ended on [ ], 20[ ], and the related statements of income and cash flow for
such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, for Skechers
on a Consolidated Basis, setting forth in comparative form corresponding figures for
the preceding Fiscal Year, as required by Section 10.1.2(b) of the Loan
Agreement. Such financial statements are complete and correct in all material respects
and have been prepared in accordance with GAAP and fairly present in all material
respects the financial position and results of operations for such Fiscal Quarter,
subject to normal year-end adjustments and the absence of footnotes; or |
|
|
|
[ ] [the month end unaudited balance sheets as of the end of [ ], 20 [ ], and
the related statements of income for such month and for the portion of the Fiscal Year
then elapsed, for Skechers on a Consolidated Basis, setting forth in comparative form
corresponding figures for the preceding Fiscal Year, as required by Section
10.1.2(c) of the Loan Agreement. Such financial statements are complete and
correct in all material respects and have been prepared in accordance with GAAP and
fairly present in all material respects the financial position and results of
operations for such month and period, subject to normal year-end adjustments and the
absence of footnotes.]1 |
2. The undersigned hereby certifies that, to the best of each Borrowers knowledge [check as
applicable]:
|
|
|
[ ] The Obligors and the Subsidiaries are in compliance in all material respects
with all federal, state, and local Environmental Laws. |
|
|
|
[ ] The Obligors and the Subsidiaries are not in compliance in all material
respects with all federal, state, and local Environmental Laws. The specific
area(s) of non-compliance and Borrowers proposed action is listed in Exhibit
A. |
3. The undersigned represents and warrants to Agent and the Lenders that, except as may have
been previously or concurrently disclosed to Agent in writing by Borrowers, the representations and
warranties of the Obligors and the Subsidiaries contained in Section 9 of the Loan
Agreement and in the other Loan Documents are true and correct on and as of the date of this
Compliance Certificate as if made on and as of the date hereof (other than any such representation
or warranty that relates to a specified prior date, such representations or warranties being true
and correct as of the specified date relative thereto).
4. The undersigned represents and warrants to Agent and the Lenders that, as of the date of
this Compliance Certificate, except as previously or concurrently disclosed to Agent in writing by
Borrowers, the Obligors and the Subsidiaries are in compliance with all of their respective
covenants and agreements in the Loan Agreement and the other Loan Documents, including without
limitation, the following negative covenants as indicated by circling yes/no under the Complies
column below:
|
|
|
|
|
Negative Covenants |
|
Complies? |
Section 10.2.1 Permitted Debt
Section 10.2.2 Permitted Liens
Section 10.2.4 Distributions; Upstream Payments
Section 10.2.5 Restricted Investments
Section 10.2.6 Disposition of Assets
Section 10.2.7 Loans
Section 10.2.8 Restrictions on Payment of Certain Debt
|
|
Yes
Yes
Yes
Yes
Yes
Yes
Yes
|
|
No
No
No
No
No
No
No |
[Attached hereto as Exhibit B are true, correct and complete copies of all material
agreements relating to: (i) Debt incurred pursuant to clause (i) of Section 10.2.1 of the Loan
Agreement; (ii) Distributions made pursuant to clause (a)(ii) of Section 10.2.4 of the Loan
Agreement; and (iii) Investments made pursuant to clause (e) of the definition of Restricted
Investment in the Loan Agreement, in each case to the extent consummated during the period covered
by the financial statements referenced in Paragraph 1 of this Compliance Certificate and not
otherwise previously provided to Agent by Borrowers.]2
5. The undersigned represents and warrants to Agent and the Lenders that, to the best of his
or her knowledge and based upon an examination sufficient to enable an informed statement [check as
applicable]:
|
|
|
[ ] No Default or Event of Default exists as of the date hereof. |
|
|
|
[ ] One or more Defaults or Events of Default exist as of the date hereof.
Included within Exhibit C attached hereto is a written description specifying
each such Default or Event of Default, its nature, when it occurred, whether it is
continuing as of the date hereof and the steps being taken by the Obligors and the
Subsidiaries with respect thereto. Except as so specified, no Default or Event of
Default exists as of the date hereof. |
6. [Attached hereto as Exhibit D is a true and accurate calculation setting forth the
Fixed Charge Coverage Ratio for the four consecutive Fiscal Quarter period ended on [ ],
20[ ]]3. [The undersigned represents and warrants that Borrowers are in compliance
with the following financial covenant as indicated by circling yes/no under the Complies column
below:
|
|
|
|
|
|
|
|
|
Financial Covenants |
|
Required |
|
Actual |
|
Complies |
Section 10.3.1 Fixed Charge Coverage Ratio
|
|
1.10 to 1.0
|
|
to
|
|
Yes
|
|
No]4 |
7. [Since the [Closing Date]5[date of the last Compliance Certificate delivered to
Agent]:
a) no Obligor has registered any Intellectual Property with, or acquired any Intellectual
Property that is registered with, the United States Patent and Trademark Office or the United
States Copyright Office[, except as set forth on Exhibit E-1 hereto]; and
b) no Obligor or Subsidiary has become party to or bound by any collective bargaining
agreement[, except as set forth on Exhibit E-2 hereto].]6
Date of execution of this Compliance Certificate: , .
BORROWER AGENT:
SKECHERS U.S.A., INC.,
a Delaware corporation
By:
Name:
Title:
EXHIBIT A
to
COMPLIANCE CERTIFICATE
dated
______________, 20__
The following is attached to and made a part of the above referenced Compliance Certificate.
[specify non-compliance with Environmental Laws and proposed action]EXHIBIT B
to
COMPLIANCE CERTIFICATE
dated
______________, 20__
The following is attached to and made a part of the above referenced Compliance Certificate.
[copies of material agreements]7EXHIBIT C
to
COMPLIANCE CERTIFICATE
dated
______________, 20___
[specify Defaults or Events of Defaults]
EXHIBIT D
to
COMPLIANCE CERTIFICATE8
($ in 000s)
FINANCIAL COVENANT COMPLIANCE
For the month ended __________________, 20__
and calculated as of the trailing twelve month period most recently ended (Subject Period).
|
|
|
|
|
|
|
|
|
|
|
I. |
|
Section 10.3.1 Fixed Charge Coverage Ratio9 |
|
|
|
|
|
A. |
|
EBITDA for Subject Period: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1. |
|
|
Net income for Skechers on a Consolidated Basis for
Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2. |
|
|
Consolidated interest expense for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. |
|
|
Consolidated provision for income tax expense for Subject
Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4. |
|
|
Consolidated depreciation (including deferred financing
costs and intangibles) expenses for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5. |
|
|
Consolidated amortization expenses (including deferred
financing costs and intangibles) for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6. |
|
|
Consolidated gains arising from the sale of capital assets
for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7. |
|
|
Consolidated losses arising from the sale of capital
assets for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8. |
|
|
Extraordinary gains for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9. |
|
|
Non-cash extraordinary losses for Subject Period:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10. |
|
|
Non-cash stock compensation expenses
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11. |
|
|
EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 6 + 7 8 + 9 + 10):
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
B. |
|
Capital Expenditures (other than those financed with Debt
other than Revolver Loans) for Subject Period: |
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
C. |
|
Cash taxes paid for Subject Period: |
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
D. |
|
Fixed Charges for Subject Period: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1. |
|
|
Interest expense (other than payment-in-kind) paid in cash:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2. |
|
|
Scheduled principal payments made on Debt:
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. |
|
|
Distributions made (other than Distributions made in-kind
and excluding, for the avoidance of doubt, any Upstream
Payments):
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4. |
|
|
Fixed Charges (Lines I.C.1 + 2 + 3):
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
E. |
|
Fixed Charge Coverage Ratio
((Line I.A.12 Line I.B Line I.C) ÷ Line I.D.4) |
|
__________ to 1.00 |
|
|
|
|
|
|
|
EXHIBIT E-1
to
COMPLIANCE CERTIFICATE
dated
______________, 20___
[List all new registered Intellectual Property since the last Compliance Certificate or since the
Closing Date]
EXHIBIT E-2
to
COMPLIANCE CERTIFICATE
dated
______________, 20___
[List of all new collective bargaining agreements since the last Compliance Certificate or since
the Closing Date]
EXHIBIT D
to
Loan and Security Agreement
ASSIGNMENT NOTICE
Reference is made to (1) the Loan and Security Agreement dated as of June 30, 2015, as amended
(Loan Agreement), among SKECHERS U.S.A., INC., a Delaware corporation
(Skechers), Skechers U.S.A., Inc. II, a Delaware corporation (Skechers II),
Skechers by Mail, Inc., a Delaware corporation (Skechers By Mail and, together with
Skechers and Skechers II, collectively, the Borrowers and, individually, each a
Borrower), the other Persons party thereto from time to time as Guarantors (the
Guarantors), the financial institutions party thereto from time to time as Lenders (the
Lenders), and BANK OF AMERICA, N.A., a national banking association, as agent for the
Lenders (Agent); and (2) the Assignment and Acceptance dated as of , 20
(Assignment), between (Assignor) and
(Assignee). Capitalized terms used and not defined herein shall have the meanings set
forth in the Loan Agreement.
Assignor hereby notifies Borrowers and Agent of Assignors intent to assign to Assignee pursuant to
the Assignment (a) a principal amount of $ of Assignors outstanding Revolver Loans and
$ of Assignors participations in LC Obligations, and (b) the amount of $ of
Assignors Revolver Commitment (which represents % of the total Revolver Commitments) (the
foregoing items being, collectively, the Assigned Interest), together with an interest in
the Loan Documents corresponding to the Assigned Interest. This Agreement shall be effective as of
[ ] (the Effective Date), provided this Assignment Notice is executed by
Assignor, Assignee, Agent and Borrower Agent, if applicable. Pursuant to the Assignment
contemplated by this Assignment Notice, Assignee has expressly assumed all of Assignors
obligations under the Loan Agreement to the extent of the Assigned Interest, as of the Effective
Date.
For purposes of the Loan Agreement, Agent shall deem Assignors Revolver Commitment to be reduced
by $ , and Assignees Revolver Commitment to be increased by $ .
The address of Assignee to which notices and information are to be sent under the terms of the Loan
Agreement is:
The address of Assignee to which payments are to be sent under the terms of the Loan Agreement is
shown in the Assignment.
This Notice is being delivered to Borrowers and Agent pursuant to Section 13.3 of the Loan
Agreement. Please acknowledge your acceptance of this Notice by executing and returning to
Assignee and Assignor a copy of this Notice.
IN WITNESS WHEREOF, this Assignment Notice is executed as of .
(Assignee)
By
Title:
(Assignor)
By
Title:
ACKNOWLEDGED AND AGREED,
AS OF THE DATE SET FORTH ABOVE:
BORROWER AGENT:*
By
Title:
No signature required if Assignee is a Lender, Affiliate of a Lender or Approved Fund, or if an
Event of Default exists.
BANK OF AMERICA, N.A.,
as Agent
By
Title:
SCHEDULE P-1
to
Loan and Security Agreement
PERMITTED HOLDERS
Permitted Holders means Robert Greenberg and any of his Affiliates (other than Skechers
and any of its Subsidiaries), Family Members of Robert Greenberg, Family Trusts of Robert
Greenberg, and any Family Trust of a Family Member of Robert Greenberg.
For purposes of this Schedule, Family Member means, with respect to any individual, any
other individual having a relationship by blood (to the second degree of consanguinity), marriage,
or adoption to such individual and Family Trust means, with respect to any individual,
any trust or other estate planning vehicle established for the benefit of such individual or Family
Members of such individual and in respect of which such individual or a Family Member of such
individual serves as trustee or in a similar capacity.
For the sake of clarification, as of the Closing Date, Permitted Holders include, without
limitation, (a) the Robert Y. Greenberg 2012 Annuity Trust, executed on March 7, 2012, by and among
Robert Y. Greenberg, as the settler, and Gil N. Schwartzberg, as the trustee, as in effect on March
7, 2012, (b) the Robert Y. Greenberg 2014 Annuity Trust, executed on January 21, 2014, by and
among Robert Y. Greenberg, as the settler, and Gil N. Schwartzberg, as the trustee, as in effect
on January 21, 2014, (c) the M. Susan Greenberg 2012 Annuity Trust, executed on March 7, 2012, by
and among M. Susan Greenberg, as the settler, and Gil N. Schwartzberg, as the trustee, as in effect
on March 7, 2012, and (d) the M. Susan Greenberg 2014 Annuity Trust, executed on January 21, 2014,
by and among M. Susan Greenberg, as the settler, and Gil N. Schwartzberg, as the trustee, as in
effect on January 21, 2014.
SCHEDULE 1.1
to
Loan and Security Agreement
COMMITMENTS OF LENDERS
|
|
|
|
|
Lender |
|
Revolver Commitment |
|
|
|
|
|
Bank of America, N.A. |
|
$ |
100,000,000 |
|
|
|
|
|
|
HSBC Bank USA, National Association |
|
$ |
75,000,000 |
|
|
|
|
|
|
MUFG Union Bank, N.A. |
|
$ |
75,000,000 |
|
|
|
|
|
|
|
TOTAL: |
|
$ |
250,000,000 |
|
|
|
|
|
|
SCHEDULE 2.3.1
to
Loan and Security Agreement
EXISTING LETTERS OF CREDIT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer Reference Bank Reference Beneficiary Name Applicant Name Issue Date Expiry / Maturity Date Outstanding Amount-USD |
Documentary Banker's Acceptance |
|
00000064667184 |
|
|
|
00000064667184 |
|
|
J. YOUNG CO., LTD.
|
|
SKECHERS SARL
|
|
|
|
20 Jul 2015
|
|
|
56,604.72 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
00000064667186 |
|
|
|
00000064667186 |
|
|
ASMARA INTERNATIONAL LIMITED
|
|
SKECHERS USA, INC.
|
|
|
|
10 Jul 2015
|
|
|
81,454.15 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
00000064667187 |
|
|
|
00000064667187 |
|
|
J. YOUNG CO., LTD.
|
|
SKECHERS SARL
|
|
|
|
15 Jul 2015
|
|
|
34,469.40 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
00000064667191 |
|
|
|
00000064667191 |
|
|
J. YOUNG CO., LTD.
|
|
SKECHERS SARL
|
|
|
|
22 Jul 2015
|
|
|
139,332.90 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Documentary Letters of Credit |
|
10RI1556164
|
|
|
00000064667186 |
|
|
ASMARA INTERNATIONAL LIMITED
|
|
SKECHERS USA, INC.
|
|
09 Mar 2015
|
|
02 Oct 2015
|
|
|
203,332.97 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10RI1565609
|
|
|
00000064667192 |
|
|
LUEN THAI MACAO COMMERCIAL
|
|
SKECHERS USA, INC.
|
|
24 Jun 2015
|
|
08 Sep 2015
|
|
|
100,874.18 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10RI2413021
|
|
|
00000064667190 |
|
|
HANGZHOU FUJIE OUTDOOR PRODUCTS IN
|
|
SKECHERS USA, INC.
|
|
02 Apr 2015
|
|
30 Aug 2015
|
|
|
111,600.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10RI776908
|
|
|
00000064667191 |
|
|
J. YOUNG CO., LTD.
|
|
SKECHERS SARL
|
|
14 Apr 2015
|
|
05 Aug 2015
|
|
|
87,410.40 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10RI802920
|
|
|
00000064667184 |
|
|
J. YOUNG CO., LTD.
|
|
SKECHERS SARL
|
|
26 Jan 2015
|
|
20 Aug 2015
|
|
|
60,533.40 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Standby Letters of Credit |
|
|
00000003049706 |
|
|
|
00000003049706 |
|
|
3 TIMES SQUARE ASSOCIATES, LLC
|
|
SKECHERS USA, INC.
|
|
21 Jun 2002
|
|
31 Oct 2015
|
|
|
108,500.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10RS100504
|
|
|
00000003043561 |
|
|
FEDERAL INSURANCE COMPANY
|
|
SKECHERS USA, INC.
|
|
21 Oct 2004
|
|
19 Aug 2015
|
|
|
65,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10RS675
|
|
|
00000003120611 |
|
|
SENTRY INSURANCE A MUTUAL COMPANY
|
|
SKECHERS USA, INC.
|
|
31 May 2013
|
|
31 May 2016
|
|
|
1,475,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10RSTRAVELERS
|
|
|
00000003067114 |
|
|
THE TRAVELERS INDEMNITY COMPANY
|
|
SKECHERS USA, INC.
|
|
13 Sep 2005
|
|
20 Jul 2015
|
|
|
2,200,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE 7.3
to
Loan and Security Agreement
PLEDGED EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pledgor / Obligor |
|
Pledged Company |
|
Number of Shares or |
|
Class of Interests |
|
Percentage of Class |
|
Percentage of Class |
|
Certificate Nos. |
|
|
|
|
Units |
|
|
|
Owned |
|
Pledged |
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers USA, Inc. II
|
|
|
1,000 |
|
|
Common
|
|
|
100 |
% |
|
|
100 |
% |
|
|
1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers By Mail, Inc.
|
|
|
100 |
|
|
Common
|
|
|
100 |
% |
|
|
100 |
% |
|
|
1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Savvas Cafe, Inc.
|
|
|
9,500 |
|
|
Common
|
|
|
100 |
% |
|
|
100 |
% |
|
|
3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
BrandBlack, LLC
|
|
|
n/a |
|
|
LLC Interests
|
|
|
100 |
% |
|
|
100 |
% |
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers Collection, LLC
|
|
|
n/a |
|
|
LLC Interests
|
|
|
100 |
% |
|
|
100 |
% |
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers Sport, LLC
|
|
|
n/a |
|
|
LLC Interests
|
|
|
100 |
% |
|
|
100 |
% |
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
SKX Illinois, LLC
|
|
|
n/a |
|
|
LLC Interests
|
|
|
100 |
% |
|
|
100 |
% |
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Duncan Investments, LLC
|
|
|
n/a |
|
|
LLC Interests
|
|
|
100 |
% |
|
|
100 |
% |
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Sepulveda Blvd. Properties,
LLC
|
|
n/a
|
|
LLC Interests
|
|
100%
|
|
100%
|
|
n/a
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers R.B., LLC
|
|
|
n/a |
|
|
LLC Interests
|
|
|
100 |
% |
|
|
100 |
% |
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Sepulveda Design Center, LLC
|
|
|
n/a |
|
|
LLC Interests
|
|
|
100 |
% |
|
|
100 |
% |
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers USA Canada, Inc.
|
|
|
100 |
|
|
Common
|
|
|
100 |
% |
|
|
65 |
% |
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers Holdings Jersey
Limited
|
|
100
|
|
Common
|
|
100%
|
|
65%
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers International
|
|
|
n/a |
|
|
Partnership
Interests
|
|
90%
|
|
58.5%
|
|
n/a
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc. II
|
|
Skechers International
|
|
|
n/a |
|
|
Partnership
Interests
|
|
10%
|
|
6.5%
|
|
n/a
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers International II
|
|
|
n/a |
|
|
Partnership
Interests
|
|
8.6%
|
|
8.6%
|
|
n/a
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers (Thailand) Limited.
|
|
|
15,300 |
|
|
JV Interests
(Shares)
|
|
51%
|
|
51%
|
|
1110
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Skechers Do Brasil Calcados
Ltda
|
|
n/a
|
|
n/a
|
|
0.01%
|
|
0.01%
|
|
n/a
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Investment Property:
1. See disclosure letter delivered to Agent regarding Deposit Accounts and Securities Accounts
owned by Obligors.
2. See Schedule 9.1.4(a).SCHEDULE 8.6.1
to
Loan and Security Agreement
BUSINESS LOCATIONS
As of the Closing Date, the Obligors have the following business locations:
|
a) |
|
228 Manhattan Beach Blvd., Manhattan Beach, CA 90266 |
|
b) |
|
225 South Sepulveda Blvd., Manhattan Beach, CA 90266 |
|
c) |
|
330 South Sepulveda Blvd., Manhattan Beach, CA 90266 |
|
d) |
|
3201 Pacific Coast Highway, Hermosa Beach, CA 90254 |
|
e) |
|
3001 Pacific Coast Highway, Hermosa Beach, CA 90254 |
|
f) |
|
2901 Pacific Coast Highway, Hermosa Beach, CA 90254 |
|
g) |
|
2851 Pacific Coast Highway, Hermosa Beach, CA 90254 |
|
h) |
|
3125 Pacific Coast Highway, Hermosa Beach, CA 90254 |
|
i) |
|
744 Longfellow Avenue, Hermosa Beach, CA 90254 |
|
j) |
|
29800 Eucalyptus Avenue, Moreno Valley, CA 92555 |
SCHEDULE 9.1.4(a)
to
Loan and Security Agreement
NAMES AND CAPITAL STRUCTURE
1. |
|
Corporate names, jurisdictions of incorporation, and authorized and issued Equity
Interests: |
|
|
|
|
|
|
|
Name
|
|
Jurisdiction
|
|
Number and Class
of Authorized Shares
|
|
Number and Class
of Issued Shares |
|
|
|
|
|
|
|
Skechers U.S.A., Inc.
|
|
Delaware
|
|
100,000,000 Class A
Common shares
60,000,000 Class B
Common shares
10,000,000 Preferred
shares
|
|
41,551,376 Class A
Common shares
10,469,918 Class B
Common shares
0 Preferred shares
|
|
|
|
|
|
|
|
Skechers U.S.A., Inc. II
|
|
Delaware
|
|
1,000 common shares
|
|
1,000 common shares |
|
|
|
|
|
|
|
Skechers By Mail, Inc.
|
|
Delaware
|
|
10,000 common shares
|
|
100 common shares |
|
|
|
|
|
|
|
Savvas Cafe, Inc.
|
|
Delaware
|
|
100,000 common shares
|
|
9,500 common shares |
|
|
|
|
|
|
|
BrandBlack, LLC
|
|
Delaware
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
Skechers Collection, LLC
|
|
California
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
Skechers Sport, LLC
|
|
California
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
SKX Illinois, LLC
|
|
Illinois
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
Duncan Investments, LLC
|
|
California
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
Sepulveda Blvd. Properties, LLC
|
|
California
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
Skechers R.B., LLC
|
|
Delaware
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
Sepulveda Design Center, LLC
|
|
California
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
HF Logistics-SKX, LLC11
|
|
Delaware
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
HF Logistics-SKX T1, LLC12
|
|
Delaware
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
HF Logistics-SKX T2, LLC13
|
|
Delaware
|
|
LLC Interests
|
|
n/a |
|
|
|
|
|
|
|
Skechers USA, Ltd. |
|
United Kingdom |
|
|
|
|
|
|
|
Skechers USA Canada, Inc. |
|
Canada |
|
|
|
|
|
|
|
Skechers USA Iberia, S.L. |
|
Spain |
|
|
|
|
|
|
|
Skechers USA Deutschland GmbH |
|
Germany |
|
|
|
|
|
|
|
Skechers USA France S.A.S. |
|
France |
|
|
|
|
|
|
|
Skechers CEE Kft. |
|
Hungary |
|
|
|
|
|
|
|
Skechers EDC SPRL |
|
Belgium |
|
|
|
|
|
|
|
Skechers USA Benelux B.V. |
|
Netherlands |
|
|
|
|
|
|
|
Skechers USA Italia S.r.l. |
|
Italy |
|
|
|
|
|
|
|
Skechers S.a.r.l. |
|
Switzerland |
|
|
|
|
|
|
|
Skechers Footwear (Dongguan) Co.,
Ltd. |
|
China |
|
|
|
|
|
|
|
Skechers Holdings Jersey Limited |
|
Jersey |
|
|
|
|
|
|
|
Skechers USA Mauritius 10 |
|
Mauritius |
|
|
|
|
|
|
|
Skechers USA Mauritius 90 |
|
Mauritius |
|
|
|
|
|
|
|
Skechers China Business Trust |
|
Jersey |
|
|
|
|
|
|
|
Skechers Holdings Mauritius |
|
Mauritius |
|
|
|
|
|
|
|
Skechers Do Brasil Calcados LTDA |
|
Brazil |
|
|
|
|
|
|
|
Skechers Japan GK |
|
Japan |
|
|
|
|
|
|
|
Comercializadora Skechers Chile
Limitada |
|
Chile |
|
|
|
|
|
|
|
Skechers USA Portugal Unipessoal
Limitada |
|
Portugal |
|
|
|
|
|
|
|
Skechers International |
|
Jersey |
|
|
|
|
|
|
|
Skechers International II |
|
Jersey |
|
|
|
|
|
|
|
Skechers Singapore Pte. Limited |
|
Singapore |
|
|
|
|
|
|
|
Skechers (Thailand) Limited |
|
Thailand |
|
|
|
|
|
|
|
Skechers Malaysia Sdn Bhd |
|
Malaysia |
|
|
|
|
|
|
|
Skechers Trading (Shanghai) Co. Ltd. |
|
PRC |
|
|
|
|
|
|
|
Skechers China Limited |
|
Hong Kong |
|
|
|
|
|
|
|
Skechers Hong Kong Limited |
|
Hong Kong |
|
|
|
|
|
|
|
Skechers Guangzhou Co., Ltd. |
|
PRC |
|
|
|
|
|
|
|
Skechers Southeast Asia Limited |
|
Hong Kong |
|
|
|
|
|
|
|
Skechers Macau Limited |
|
Macau |
|
|
|
|
|
|
|
Skechers South Asia Private Limited |
|
India |
|
|
|
|
|
|
|
Skechers Retail India Private Limited |
|
India |
|
|
|
|
|
|
|
Skechers Panama, LLC |
|
Panama |
|
|
|
|
|
|
|
Skechers Peru, S.A. |
|
Peru |
|
|
|
|
|
|
|
Skechers Colombia, S.A.S. |
|
Columbia |
|
|
|
|
|
|
|
Sepulveda Footwear Costa Rica, S.R.L. |
|
Costa Rica |
|
|
|
|
|
|
|
Skechers Latin America, LLC |
|
Panama |
|
|
|
|
|
|
|
2. |
|
The record holders of Equity Interests of Borrowers and each Subsidiary (including the number
of issued shares (other than for any Foreign Subsidiary)) are as follows: |
|
|
|
Name
|
|
Record Owner |
|
|
|
Skechers U.S.A., Inc.
|
|
Class A common shares are publicly traded
The ownership of Class B shares as of the
Closing Date has been separately disclosed to
the Agent. |
|
|
|
Skechers U.S.A., Inc. II
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Skechers By Mail, Inc.
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Savvas Cafe, Inc.
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
BrandBlack, LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Skechers Collection, LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Skechers Sport, LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
SKX Illinois, LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Duncan Investments, LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Sepulveda Blvd. Properties, LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Skechers R.B., LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
Sepulveda Design Center, LLC
|
|
Skechers U.S.A., Inc. (100%) |
|
|
|
HF Logistics-SKX, LLC14
|
|
HF Logistics I, LLC (50%)
Skechers R.B., LLC (50%) |
|
|
|
HF Logistics-SKX T1, LLC15
|
|
HF Logistics-SKX, LLC (100%) |
|
|
|
HF Logistics-SKX T2, LLC16
|
|
HF Logistics-SKX, LLC (100%) |
|
|
|
Skechers USA, Ltd.
|
|
Skechers Sarl (100%) |
|
|
|
Skechers USA Canada, Inc.
|
|
Skechers USA, Inc. (100%) |
|
|
|
Skechers USA Iberia, S.L.
|
|
Skechers Sarl (100%) |
|
|
|
Skechers USA Deutschland GmbH
|
|
Skechers Sarl (100%) |
|
|
|
Skechers USA France S.A.S.
|
|
Skechers Sarl (100%) |
|
|
|
Skechers CEE Kft.
|
|
Skechers Sarl (100%) |
|
|
|
Skechers EDC SPRL
|
|
Skechers International (100%) |
|
|
|
Skechers USA Benelux B.V.
|
|
Skechers International (100%) |
|
|
|
Skechers USA Italia S.r.l.
|
|
Skechers Sarl (100%) |
|
|
|
Skechers S.a.r.l.
|
|
Skechers International (100%) |
|
|
|
Skechers Footwear (Dongguan) Co., Ltd.
|
|
Skechers Holdings Mauritius (100%) |
|
|
|
Skechers Holdings Jersey Limited
|
|
Skechers USA, Inc. (100%) |
|
|
|
Skechers USA Mauritius 10
|
|
Skechers Holdings Jersey Limited (100%) |
|
|
|
Skechers USA Mauritius 90
|
|
Skechers Holdings Jersey Limited (100%) |
|
|
|
Skechers China Business Trust
|
|
Skechers Mauritius 10 (10%)
Skechers Mauritius 90 (90%) |
|
|
|
Skechers Holdings Mauritius
|
|
Skechers China Business Trust (100%) |
|
|
|
Skechers Do Brasil Calcados LTDA
|
|
Skechers USA, Inc. (0.01%)
Skechers Sarl (99.99%) |
|
|
|
Skechers Japan GK
|
|
Skechers Sarl (100%) |
|
|
|
Comercializadora Skechers Chile Limitada
|
|
Skechers International (0.000017%)
Skechers Sarl (99.999983%) |
|
|
|
Skechers USA Portugal Unipessoal
Limitada
|
|
Skechers Sarl (100%)
|
|
|
|
Skechers International
|
|
Skechers USA, Inc. (90%)
Skechers USA, Inc. II (10%) |
|
|
|
Skechers International II
|
|
Skechers USA, Inc. (8.6%)
Skechers International (91.4%) |
|
|
|
Skechers Singapore Pte. Limited
|
|
Skechers Southeast Asia Limited (100%) |
|
|
|
Skechers (Thailand) Limited
|
|
Skechers USA, Inc. (51%)
Luen On Investment Holdings Limited (49%) |
|
|
|
Skechers Malaysia Sdn Bhd
|
|
Skechers Southeast Asia Limited (100%) |
|
|
|
Skechers Trading (Shanghai) Co. Ltd.
|
|
Skechers China Limited (100%) |
|
|
|
Skechers China Limited
|
|
Skechers Sarl (50%)
Luen Thai Enterprise Limited
(50%) |
|
|
|
Skechers Hong Kong Limited
|
|
Skechers China Limited (70%)
Onwel Sales Limited (30%) |
|
|
|
Skechers Guangzhou Co., Ltd.
|
|
Skechers China Limited (100%) |
|
|
|
Skechers Southeast Asia Limited
|
|
Skechers Sarl (50%)
Luen On Investment Holdings Limited (50%) |
|
|
|
Skechers Macau Limited
|
|
Skechers Hong Kong Limited (96%)
Skechers Southeast Asia Limited (4%)17 |
|
|
|
Skechers South Asia Private Limited
|
|
Skechers USA Benelux B.V. (51%)
Tirumal Trading & Investment Counsultants
Private Limited (49%) |
|
|
|
Skechers Retail India Private Limited
|
|
Skechers Sarl (49%)
Tirumal Trading & Investment Counsultants
Private Limited (49%)
Kamlesh Gupta (2%) |
|
|
|
Skechers Panama, LLC
|
|
Skechers Sarl (100%) |
|
|
|
Skechers Peru, S.A.
|
|
Skechers Sarl (100%) |
|
|
|
Skechers Colombia, S.A.S.
|
|
Skechers Sarl (100%) |
|
|
|
Sepulveda Footwear Costa Rica, S.R.L.
|
|
Skechers Sarl (100%) |
|
|
|
Skechers Latin America, LLC
|
|
Skechers Sarl (100%) |
|
|
|
3. |
|
Each of the following Subsidiaries is a real estate holding company: |
|
|
Duncan Investments, LLC |
|
|
Sepulveda Blvd. Properties, LLC |
|
|
Sepulveda Design Center, LLC |
SCHEDULE 9.1.4(b)
to
Loan and Security Agreement
CLOSING DATE DEBT
|
|
|
|
|
|
|
|
|
Obligor (Debtor) |
|
Lender of Debt |
|
Amount of Debt |
|
Description Of Debt |
Skechers U.S.A.,
Inc.
|
|
Banc of America
Leasing & Capital,
LLC
|
|
|
15,047,710 |
|
|
Note payable to
banks, due in
monthly
installments of
$531,400 (includes
principal and
interest),
fixed-rate interest
at 3.54% per annum,
secured by
property, balloon
payment of
$12,635,000 due
December 2015. |
Skechers U.S.A.,
Inc.
|
|
Banc of America
Leasing & Capital,
LLC
|
|
|
16,543,608 |
|
|
Note payable to
banks, due in
monthly
installments of
$483,900 (includes
principal and
interest),
fixed-rate interest
at 3.19% per annum,
secured by
property, balloon
payment of
$11,670,000 due
June 2016. |
SCHEDULE 9.1.11
to
Loan and Security Agreement
PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES
See Next Page.
SCHEDULE 9.1.14
to
Loan and Security Agreement
ENVIRONMENTAL MATTERS
None.
SCHEDULE 9.1.15
to
Loan and Security Agreement
RESTRICTIVE AGREEMENTS
None.
SCHEDULE 9.1.16
to
Loan and Security Agreement
COMMERCIAL TORT CLAIMS
None.SCHEDULE 9.1.18
to
Loan and Security Agreement
PENSION PLAN DISCLOSURES
None.SCHEDULE 9.1.20
to
Loan and Security Agreement
LABOR CONTRACTS
None.
SCHEDULE 10.2.2
to
Loan and Security Agreement
EXISTING LIENS
Security and other interests described in the following UCC Financing Statements shall constitute
existing Liens under this Agreement
Skechers U.S.A., Inc.
|
|
|
|
|
Filing Office
|
|
File Number and Date
|
|
Secured Party |
|
|
|
|
|
Delaware Secretary of State
|
|
2011 0003718
01/03/2011
|
|
Bank of Utah, as Agent
|
|
|
|
|
|
Delaware Secretary of State
|
|
2014 0788752
02/24/2014
|
|
Navitas Lease Corp.
|
|
|
|
|
|
California Secretary of State
|
|
13-7362564996
05/16/2013
|
|
Navitas Lease Corp.
|
|
|
|
|
|
Riverside County Recorder
|
|
2011-0007850
01/06/2011
|
|
Bank of Utah, as Agent
|
|
|
|
|
|
SCHEDULE 10.2.5
to
Loan and Security Agreement
CLOSING DATE INVESTMENTS
None.SCHEDULE 10.2.7
to
Loan and Security Agreement
CLOSING DATE INTERCOMPANY LOANS
None.SCHEDULE 10.2.17
to
Loan and Security Agreement
AFFILIATE TRANSACTIONS
That certain Distribution Agreement, dated December 30, 2005, as amended from time to time, by
and between Skechers U.S.A., Inc. II and Skechers U.S.A. Canada, Inc. pursuant to which Skechers
U.S.A., Canada Inc. purchases footwear products from Skechers U.S.A., Inc. II bearing certain
Skechers U.S.A., Inc. II-owned trademarks for resale within Canada.
1 |
|
Per Section 10.1.2(c) of the Loan Agreement,
monthly financials are only required during a Dominion Period |
2 |
|
Include relevant portions of bracketed
paragraphs as applicable. |
3 |
|
A Compliance Certificate containing this FCCR
calculation is required to be delivered at the start of any Covenant Testing
Period, and such FCCR calculation shall be included for any other Compliance
Certificate delivered during a Covenant Testing Period. |
4 |
|
Bracketed language regarding compliance only
required to be included during a Covenant Testing Period. |
5 |
|
Use Closing Date only for the first Compliance
Certificate delivered after the Closing Date. |
6 |
|
This certification (including sub-clauses (a),
(b) and (c)) shall be included with each quarterly Compliance Certificate. |
7 |
|
Attach true, correct and complete copies of
all material agreements relating to (i) Debt incurred pursuant to clause (i) of
Section 10.2.1 of the Loan Agreement; (ii) Distributions made pursuant to
clause (a)(ii) of Section 10.2.4 of the Loan Agreement; and (iii) Investments
made pursuant to clause (e) of the definition of Restricted Investment in the
Loan Agreement, in each case to the extent consummated during the period
covered by the financial statements referenced in Paragraph 1 of this
Compliance Certificate. |
8 |
|
Calculation of Fixed Charge Coverage Ratio is
only required to be included during a Covenant Testing Period. |
9 |
|
For the purposes of calculating EBITDA for
any period of 4 consecutive Fiscal Quarters (each, a Reference
Period), if at any time during such Reference Period (and after the
Closing Date), Borrowers or any of its Subsidiaries shall have made a Permitted
Acquisition, EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto (including pro forma adjustments arising out of events
which are directly attributable to such Permitted Acquisition, are factually
supportable, and are expected to have a continuing impact, in each case to be
mutually and reasonably agreed upon by Borrowers and Agent) or in such other
manner acceptable to Agent as if any such Permitted Acquisition or adjustment
occurred on the first day of such Reference Period. |
10 |
|
Skechers will deliver to Agent stock
certificate number 10, representing 29,999 shares, on the Closing Date. This
certificate and does not reflect Skechers actual current ownership of 15,300
shares. Certificate number 10 will be cancelled and exchanged for a new stock
certificate (numbered 11, representing 15,300 shares) post-closing (see Section
6.3(d)). |
11 |
|
This entity is a joint venture, not a
Subsidiary. |
12 |
|
This entity is a subsidiary of
HF-Logistics-SKX, LLC. |
13 |
|
This entity is a subsidiary of
HF-Logistics-SKX, LLC |
14 |
|
This entity is a joint venture, not a
Subsidiary. |
15 |
|
This entity is a joint venture, not a
Subsidiary. |
16 |
|
This entity is a subsidiary of
HF-Logistics-SKX, LLC |
17 |
|
Held in trust for Skechers USA, Inc. |
6
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