Loan and Security Agreement, dated as of February 2, 2024, among Aegis Venture Fund, LLC, as a lender, Thermo Communications Funding, LLC, as a lender and as agent for itself and the other lenders, Verve Cloud, Inc. (Nevada), Verve Cloud, Inc. (Texas), Nexogy, Inc., T3 Communications, Inc. and Next Level Internet, Inc

EX-10.2 3 ea193153ex10-2_digerati.htm LOAN AND SECURITY AGREEMENT, DATED AS OF FEBRUARY 2, 2024, AMONG AEGIS VENTURE FUND, LLC, AS A LENDER, THERMO COMMUNICATIONS FUNDING, LLC, AS A LENDER AND AS AGENT FOR ITSELF AND THE OTHER LENDERS, VERVE CLOUD, INC. (NEVADA), VERVE CLOUD, INC. (TEXAS)

Exhibit 10.2

 

February 2, 2024

 

LOAN AND SECURITY AGREEMENT

 

THIS LOAN AND SECURITY AGREEMENT (including all schedules, exhibits and appendices attached or otherwise identified therewith, as amended, modified or restated from time to time, this “Agreement”) dated as of February 2, 2024 (the “Effective Date”), is between (a) AEGIS VENTURE FUND, LLC, a Florida limited liability company (“Aegis”) and THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company (“Thermo”) (together with its successors and assigns, collectively “Lender” ) and THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company, as agent for itself and the other Lenders (in such capacity, together with its successors in such capacity, the “Agent”), (b) VERVE CLOUD, INC., a Nevada corporation (“Parent”), (c) VERVE CLOUD, INC., a Texas corporation (“Verve Cloud Texas”), (d) Nexogy, Inc., a Florida corporation (“Nexogy”), (e) T3 Communications, Inc., a Florida corporation (“T3 Communications”), (f) Next Level Internet, Inc., a California corporation (“Next Level” and, together with Parent, Verve Cloud Texas, Nexogy, T3 Communications and any other entity that joins this Agreement as a “Borrower”, collectively, the “Borrowers” and, each, a “Borrower”), and (g) each Person identified as a Guarantor on the signature page hereto.

 

RECITALS

 

WHEREAS, Borrowers (a) have determined that Borrowers will benefit specifically and materially from the Credit Facility contemplated by this Agreement, and (b) have requested and bargained for the structure, terms and obligations set forth in the Loan Documents.

 

WHEREAS, Lender is willing to make the Credit Facility available upon and subject to the provisions, terms and conditions set forth in the Loan Documents.

 

NOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:

 

1. Definitions. As used in this Agreement, all exhibits, appendices and schedules hereto, and in any other Loan Documents made or delivered pursuant to this Agreement, the following terms will have the meanings given such terms in this Section 1 or in the provisions, sections or recitals herein:

 

“Advance” means any advance under the Credit Facility, which advance shall be part of the Loan.

 

“Advance Request Form” means a certificate or other communication, substantially in the form of Exhibit A attached hereto, properly completed and signed or authorized by a Responsible Officer of Borrower requesting an Advance.

 

“Affiliate” means, 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.

 

“Borrowing Base” means, as of any date, a sum equal to EIGHTY FIVE PERCENT (85.00%) of the amount of Borrowers’ collective Eligible Accounts; provided, however, Lender shall have the right to create and adjust reserves from time to time in its Permitted Discretion with respect to Borrowers’ Eligible Accounts.

 

“Borrowing Base Certificate” means, as of any date of preparation, a certificate, substantially the form of Exhibit B, prepared by and certified by a Responsible Officer

 

“Business Day” means any day other than a Saturday, Sunday or any other day on which the banks in New Orleans, Louisiana are authorized or required to close.

 

“Capital Stock” means, with respect to any Person, all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or issued or acquired after the Effective Date, including common shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership, interests in a trust, interests in other unincorporated organizations or any other equivalent of such ownership interest.

 

 

“Change of Control” means the occurrence of any of the following events: (i) Parent ceases to own and control 100% of the voting and non-voting Capital Stock of each other Borrower, (ii) Parent ceases to own and control Capital Stock of each other Borrower sufficient to elect, or to have the right and power to designate, at least a majority of the board of directors of such other Borrower, (iii) Digerati ceases to own and control at least 80.01% of the voting and non-voting Capital Stock of the Parent or (iv) Digerati ceases to own and control Capital Stock of the Parent sufficient to elect, or to have the right and power to designate, at least a majority of the board of directors of the Parent.

 

“Chattel Paper” means all “chattel paper” as such term is defined in Section 9-102(a)(11) of the UCC and, in any event, including with respect to any Borrower, all Electronic Chattel Paper and Tangible Chattel Paper.

 

“Collateral” means (i) all of the personal property now owned or at any time hereafter acquired by any Borrower or in which any Borrower now has or at any time in the future may acquire any right, title or interest, including all of each Borrower’s Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Equipment, Fixtures, General Intangibles, Goods, Instruments, Intellectual Property, Inventory, Investment Property, Leases, Letter-of-Credit Rights, Money, and Supporting Obligations, (ii) all books and records pertaining to any of the foregoing, (iii) all Proceeds and products of any of the foregoing, and (iv) all collateral security and guaranties given by any Person with respect to any of the foregoing; excluding, however, any Licenses issued by a State Regulatory Authority, or any other Governmental Authority to the extent, and only to the extent, it is unlawful to grant a security interest in such Licenses, but including, without limitation, the right to receive all proceeds derived or arising from or in connection with the sale, assignment, transfer or transfer of control over such Licenses. Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Borrower, shall refer to such Borrower’s Collateral or the relevant part thereof.

 

The term “Collateral,” as used herein, shall also include (a) any other property or assets, real or personal, tangible or intangible, now existing or hereafter acquired, of any Borrower that may at any time be or become subject to a security interest or Lien in favor of Lender as security for the Indebtedness; and (b) all SUPPORTING OBLIGATIONS, PRODUCTS and PROCEEDS of all of the foregoing (including without limitation, insurance payable by reason of loss or damage to the foregoing property) and any property, assets, securities, guaranties or monies of Borrowers which may at any time come into the possession of Lender. The designation of proceeds does not authorize Borrowers to sell, transfer or otherwise convey any of the foregoing property except as authorized in this Agreement.

 

“Collections” means, with respect to any account receivable, all cash collections and other cash proceeds of such account receivable.

 

“Compliance Certificate” means a certificate, substantially in the form of Exhibit C, prepared by and certified by a Responsible Officer.

 

“Constituent Documents” means (a) in the case of a corporation, its articles or certificate of incorporation and bylaws; (b) in the case of a general partnership, its partnership agreement; (c) in the case of a limited partnership, its certificate of limited partnership and partnership agreement; (d) in the case of a trust, its trust agreement; (e) in the case of a joint venture, its joint venture agreement; (f) in the case of a limited liability company, its articles of organization or certificate of formation and operating agreement or regulations; and (g) in the case of any other entity, its organizational and governance documents and agreements.

 

“Contract Rights” means all of the Borrowers’ rights and remedies with respect to the customer contracts.

 

 

“Control” means 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 meanings correlative thereto.

 

“Copyright Licenses” means all written agreements naming any Borrower licensee granting any right under any Copyright, including the grant of rights to manufacture, distribute, exploit and sell materials derived from any Copyright, other than mass market shrink wrap licenses generally available to the public.

 

“Copyrights” means all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Copyright Office, and the right to obtain all renewals of any of the foregoing.

 

“Credit Facility” means the Revolving Credit Facility.

 

“DACA Account” means the lockbox account established under Section 2(e).

 

“Debt” means, of any Person as of any date of determination (without duplication): (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, notes, debentures, or other similar instruments; (c) all obligations of such Person to pay the deferred purchase price of property, assets or services, except trade accounts payable of such Person arising in the ordinary course of business; (d) all capitalized lease obligations of such Person; (e) all Debt of others guaranteed by such Person; (f) all obligations secured by a Lien existing on property or assets owned by such Person, whether or not the obligations secured thereby have been assumed by such Person or are non-recourse to the credit of such Person; (g) any other obligation for borrowed money or other financial accommodations which in accordance with GAAP would be shown as a liability on the balance sheet of such Person; (h) any repurchase obligation or liability of a Person with respect to accounts, chattel paper or notes receivable sold by such Person; (i) any liability under a sale and leaseback transaction that is not a capitalized lease obligation; (j) any obligation under any so-called “synthetic leases;” (k) any obligation arising with respect to any other transaction that is the functional equivalent of borrowing but which does not constitute a liability on the balance sheets of a Person; (l) all payment and reimbursement obligations of such Person (whether contingent or otherwise) in respect of letters of credit, bankers’ acceptances, surety or other bonds and similar instruments; (m) all liabilities of such Person in respect of unfunded vested benefits under any pension plan; (n) all Hedge Obligations of such Person; and (o) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any equity interests in such Person or any other Person, valued, in the case of redeemable preferred stock interests, at the greater of its voluntary or involuntary liquidation preference plus all accrued and unpaid dividends.

 

“Default” means any Event of Default or event which with notice and/or the passage of time would be an Event of Default.

 

“Digerati” means Digerati Technologies, Inc., a Nevada corporation.

 

“Dollars” and “$” mean lawful money of the United States of America.

 

“Eligible Accounts” means, as of any date of determination thereof, all accounts receivable of any Borrower (net of service charges, interest and finance fees) created in the ordinary course of business in which Lender has a perfected, FIRST (1st) priority Lien and satisfy the following conditions:

 

(a) The account complies with all applicable laws, rules, and regulations, including, without limitation, usury laws, the Federal Truth in Lending Act, and Regulation Z of the Board of Governors of the Federal Reserve System;

 

 

(b) The account has not been outstanding for more than NINETY (90) days past the original date of invoice;

 

(c) The account does not represent a commission and the account was created in connection with (i) the sale of goods by a Borrower in the ordinary course of business and such sale has been consummated and such goods have been shipped and delivered and received by the account debtor, or (ii) the performance of services by a Borrower in the ordinary course of business and such services have been completed and accepted by the account debtor;

 

(d) The account arises from an enforceable contract, the performance of which has been completed by a Borrower;

 

(e) The account does not arise from the sale of any good that is from a bonded contract or is on a bill-and-hold, bartered, advance, pre-bill, progress, guaranteed sale, sale-or-return, sale on approval, consignment, or any other repurchase or return basis;

 

(f) a Borrower has good and indefeasible title to the account and the account is not subject to any Lien except Liens in favor of Lender and Permitted Account Encumbrances;

 

(g) The account does not arise out of a contract with or order from, an account debtor that, by its terms, contains a legally enforceable prohibition on or legally makes void or unenforceable the grant of a security interest by a Borrower to Lender in and to such account;

 

(h) The account is not subject to any retainage, setoff, counterclaim, defense, dispute, recoupment, or adjustment other than normal discounts for prompt payment;

 

(i) The account debtor is not insolvent or the subject of any bankruptcy or insolvency proceeding and has not made an assignment for the benefit of creditors, suspended normal business operations, dissolved, liquidated, terminated its existence, ceased to pay its debts as they become due, or suffered a receiver or trustee to be appointed for any of its assets or affairs;

 

(j) The account is not evidenced by chattel paper or an instrument;

 

(k) No default exists under the account by any party thereto;

 

(l) The account debtor has not returned or refused to retain, or otherwise notified a Borrower of any dispute concerning, or claimed nonconformity of, any of the goods from the sale of which the account arose;

 

(m) The account is not owed by an Affiliate, employee, officer, director or shareholder of Borrower or any of its Subsidiaries;

 

(n) The account is payable in Dollars by the account debtor;

 

(o) The account is not owed by an account debtor whose accounts Lender in its sole discretion has chosen to exclude from Eligible Accounts;

 

(p) The account debtor is domiciled in the United States of America;

 

(q) No more than TWENTY FIVE PERCENT (25.00%) of the aggregate balances then outstanding on all accounts owed by such account debtor and its Affiliates to Borrowers and their respective Subsidiaries are more than NINETY (90) days past the dates of their original invoices;

 

(r) If the account debtor is the United States of America or any department, agency, or instrumentality thereof, the Federal Assignment of Claims Act of 1940, shall have been complied with;

 

 

(s) The aggregate of all accounts owed by the account debtor and its Affiliates to which the account relates does not exceed THIRTY PERCENT (30.00%) of all accounts owed by all of the Borrowers’ and their respective Subsidiaries’ account debtors (provided, however, that if such aggregate exceeds such percentage of all accounts, only such excess shall be ineligible); and

 

(t) The account is otherwise acceptable in the Permitted Discretion of Lender.

 

The amount of the Eligible Accounts owed by an account debtor to a Borrower shall be reduced by the amount of all “contra accounts” and other obligations owed by a Borrower to such account debtor. Lender may, at any time in its Permitted Discretion, determine that the Dollar amount of Eligible Accounts collectable by a Borrower is reduced or diluted as a result of discounts or rebates granted by a Borrower, returned, rejected or disputed goods or services, or such other reasons or factors as Lender deems applicable in its Permitted Discretion.

 

“Event of Default” has the meaning set forth in Section 11.

 

“Fixtures” means all of the following, whether now owned or hereafter acquired by a Borrower: plant fixtures; business fixtures; other fixtures and storage facilities, wherever located; and all additions and accessories thereto and replacements therefor.

 

“GAAP” means generally accepted accounting principles, applied on a consistent basis, as set forth in Opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants and/or in statements of the Financial Accounting Standards Board and/or their respective successors and which are applicable in the circumstances as of the date in question. Accounting principles are applied on a “consistent basis” when the accounting principles applied in a current period are comparable in all material respects to those accounting principles applied in a preceding period.

 

“General Intangibles” means all “general intangibles” as such term is defined in Section 9-102(a)(42) of the UCC and, in any event, including with respect to any Borrower, all Payment Intangibles, all contracts and Contract Rights (including all customer contracts), agreements, instruments and indentures in any form, and portions thereof, to which such Borrower is a party or under which such Borrower has any right, title or interest or to which such Borrower or any property of such Borrower is subject, as the same from time to time may be amended, supplemented or otherwise modified, including, without limitation, (a) all rights of such Borrower to receive moneys due and to become due to it thereunder or in connection therewith, (b) all rights of such Borrower to damages arising thereunder and (c) all rights of such Borrower to perform and to exercise all remedies thereunder; provided, that the foregoing limitation shall not affect, limit, restrict or impair the grant by such Borrower of a security interest pursuant to this Agreement in any Receivable or any money or other amounts due or to become due under any such Payment Intangible, contract, agreement, instrument or indenture.

 

“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

“Guarantor” means any Subsidiary of a Borrower, whether one or more, that from time to time guarantees all or any part of the Indebtedness as set forth in an executed Guaranty.

 

“Guaranty” means a GUARANTY AGREEMENT, whether one or more, executed by a Guarantor (as the same may be amended, restated or modified from time to time).

 

“Hedge Agreement” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement.

 

 

“Hedge Obligations” means, at any time with respect to any Person, all indebtedness, liabilities, and obligations of such Person under or in connection with any Hedge Agreement, whether actual or contingent, due or to become due and existing or arising from time to time.

 

“Indebtedness” means (a) all indebtedness, obligations and liabilities of a Borrower to Lender of any kind or character, now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several or joint and several, under the Note, this Agreement, the other Loan Documents or any draft, acceptance, guaranty, endorsement, letter of credit, assignment, purchase, overdraft, discount or indemnity agreement, (b) all accrued but unpaid interest on any of the indebtedness described in (a) above, (c) all Lender Costs and Expenses, and (d) all renewals, extensions, modifications and rearrangements of the indebtedness and obligations described in (a), (b) and (c) above.

 

“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

 

“Intercreditor Agreement” has the meaning set forth in Section 4(a).

 

“Investment Property” means the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the UCC (other than the equity interest of any foreign Subsidiary excluded from the definition of Pledged Equity), (ii) all “financial assets” as such term is defined in Section 8-102(a)(9) of the UCC, and (iii) whether or not constituting “investment property” as so defined, all Pledged Notes and all Pledged Equity.

 

“Lender Costs and Expenses” all reasonable and documented out-of-pocket costs and expenses of the Lender (including, without limitation, the reasonable and documented fees and disbursements of one firm of outside counsel to the Lender) in connection with (a) the drafting and execution of the Loan Documents and the transactions contemplated therein, (b) any action required in the course of administration of the Indebtedness and obligations evidenced by the Loan Documents, and (c) any action in the enforcement of Lender’s rights upon the occurrence of an Event of Default.

 

“Lender’s Counsel” is defined on the signature pages hereto.

 

“Licenses” means all permanent, long-term, and temporary, existing and after-acquired, authorizations, permits and licenses used in, necessary for, or required by any Governmental Authority for, the ownership and operation by any Borrower of its present and future business, including, but not limited to, the licenses issued by a State Regulatory Authority.

 

“Lien” means any lien, mortgage, security interest, tax lien, pledge, charge, hypothecation, assignment, preference, priority, or other encumbrance of any kind or nature whatsoever (including, without limitation, any conditional sale or title retention agreement), whether arising by contract, operation of law, or otherwise.

 

“Loan” means all Advances (whether one or more) under the Credit Facility as established pursuant to the Loan Documents from time to time.

 

 

“Loan Documents” means this Agreement, the Note, the Intercreditor Agreement, the Guaranty, the Validity Guaranty and the other agreements, instruments and documents evidencing, securing, governing, guaranteeing or pertaining to the Loan.

 

“Material Adverse Effect” means a material adverse effect on or material adverse change in (a) the business, assets, property, operations, or financial condition, of the Borrowers and their consolidated Subsidiaries, taken as a whole, (b) the ability of the Borrowers and Guarantors (taken as a whole) to pay the Indebtedness, (c) any of the material rights of or material benefits available to Lender under the Loan Documents, or (d) the legality, validity, binding effect or enforceability of the Loan Documents.

 

“Note” means, collectively, any promissory note evidencing all or part of the Indebtedness from time to time (as any such promissory note may be amended, modified or restated from time to time).

 

“Operating Account” means the deposit account from time to time notified by Borrowers to Lender as their “Operating Account”.

 

“Patent Licenses” means all agreements, whether written or oral, providing for the grant by or to any Borrower of any right to manufacture, use or sell any invention covered in whole or in part by a Patent.

 

“Patents” means (a) all letters patent of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof and all goodwill associated therewith, (b) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof and (c) all rights to obtain any reissues or extensions of the foregoing.

 

“Permitted Account Encumbrances” mean (a) Liens in favor of the Term Loan Administrative Agent and subject to the Intercreditor Agreement and (b) Permitted Encumbrances in accordance with clauses (a), (b) and (e) of the definition of “Permitted Encumbrances”.

 

“Permitted Discretion” means, with respect to Lender, a determination made in the exercise of Lender’s commercially reasonable (from the perspective of a secured Lender) business judgment.

 

“Permitted Encumbrances” means the following encumbrances: (a) Liens for taxes, assessments or governmental charges or levies not yet due and payable or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP; (b) Liens in respect of property of a Person imposed by law which were incurred in the ordinary course of business and which have not arisen to secure Debt for borrowed money, such as carriers’, materialmen’s, warehousemen’s and mechanics’ Liens, statutory and common law landlord’s Liens, and other similar Liens arising in the ordinary course of business, and which either (i) do not in the aggregate materially detract from the value of such property or materially impair the use thereof in the operation of the business of a Person, or (ii) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject to such Lien; (c) Liens created by or pursuant to the Loan Documents; (d) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule II, without giving effect to any extensions or renewals thereof (other than the filing of continuation statements under the UCC or other similar instruments or filings under applicable law to continue the existence or perfection of such Liens); (e) Liens arising from judgments, decrees, awards or attachments in circumstances not constituting an Event of Default; (f) Liens (i) incurred or deposits made in the ordinary course of business in connection with general insurance maintained by a Person, (ii) incurred or deposits made in the ordinary course of business of a Person in connection with workers’ compensation, unemployment insurance and social security, (iii) to secure the performance by any Person of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) to the extent incurred in the ordinary course of business, and (iv) to secure the performance by a Person of leases of real property, to the extent incurred or made in the ordinary course of business consistent with past practices; (g) licenses, sublicenses, leases or subleases granted to third Persons in the ordinary course of business not interfering in any material respect with the business of a Person; (h) easements, rights-of-way, restrictions, minor defects or irregularities in title, encroachments and other similar charges or encumbrances, in each case not securing Indebtedness and not interfering in any material respect with the ordinary conduct of the business of a Person; (i) Liens arising from precautionary UCC financing statements regarding operating leases; (j) Liens created pursuant to or in connection with capital leases permitted pursuant to this Agreement, provided that (i) such Liens only serve to secure the payment of rent or Debt arising under such capital leases, and (ii) the Liens encumbering the assets leased or purported to be leased under such capital leases do not encumber any other assets of a Person; and (k) Liens in equipment and fixtures arising pursuant to purchase money security interests securing Debt representing the purchase price of assets acquired after the Effective Date; provided that (i) any such Liens attach only to the assets so purchased, upgrades thereon and, if the asset so purchased is an upgrade, the original asset itself (and such other assets financed by the same financing source), (ii) the Debt secured by any such Lien does not exceed the purchase price of the property being purchased at the time of the incurrence of such Debt, and (iii) the Debt secured thereby is permitted to be incurred pursuant to this Agreement.

 

 

“Person” means any individual, corporation, limited liability company, business trust, association, company, partnership, joint venture, Governmental Authority, or other entity, and shall include such Person’s heirs, administrators, personal representatives, executors, successors and assigns.

 

“Pledged Equity” means any 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 Borrower while this Agreement is in effect.

 

“Pledged Notes” means all intercompany notes at any time issued to any Borrower and all other promissory notes issued to or held by any Borrower (other than (a) promissory notes issued in connection with extensions of trade credit by any Borrower in the ordinary course of business and (b) any individual promissory note which is less than $10,000 in principal amount, up to an aggregate of $50,000 for all such promissory notes excluded under this clause (b)).

 

“Proceeds” means all “proceeds” as such term is defined in Section 9-102(a)(64) of the UCC and, in any event, shall include all dividends or other income from the Investment Property, collections thereon or distributions or payments with respect thereto.

 

“Property” of a Person means any and all property, whether real, personal, tangible, intangible or mixed, of such Person, or any other assets owned, operated or leased by such Person and, in the case of the Borrowers, includes the Collateral.

 

“Public Filings” means, as of any date of determination, the filings of Digerati with the Securities and Exchange Commission available on EDGAR (www.sec.gov/edgar) through such date.

 

“Receivable” means any right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has been earned by performance (including any Accounts).

 

“Responsible Officer” means the Person designated by any Person to act on behalf of such Person; provided that such designated Person may not designate any other Person to be a Responsible Officer. Any document delivered hereunder that is signed by a Responsible Officer of such Person shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.

 

“State Regulatory Authority” means any state, provincial, municipal or local Governmental Authority that exercises jurisdiction over the rates or services or the ownership, construction or operation of any of the business of the Borrowers.

 

 

“Subsidiary” means any entity (a) of which at least a majority of the ownership, equity or voting interest is at the time directly or indirectly owned or controlled by a Person and/or its Subsidiaries, and (b) which is treated as a subsidiary in accordance with GAAP.

 

“Term Loan Administrative Agent” means Post Road Administrative LLC, in its capacity as administrative agent for the lenders party to the Term Loan Credit Agreement.

 

“Term Loan Credit Agreement” means the Credit Agreement, dated as of November 20, 2020, among the Borrowers, the guarantors from time to time parties thereto, the lenders from time to time parties thereto and the Term Loan Administrative Agent, as may be amended, modified, restated supplemented or replaced from time to time.

 

“Term Loan Debt” means any Debt owing by any Borrower to the Term Loan Administrative Agent or the lenders party to the Term Loan Credit Agreement, whether now outstanding or hereafter created, incurred, assumed or guaranteed.

 

“Trademark Licenses” means, collectively, each agreement, whether written or oral, providing for the grant by or to any Borrower of any right to use any Trademark.

 

“Trademarks” means (a) all trademarks, trade names, corporate names, the Borrowers’ names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common-law rights related thereto and (b) the right to obtain all renewals thereof.

 

“UCC” means the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of Louisiana; provided, that to the extent that the UCC is used to define any term herein or in any Loan Document and such term is defined differently in different articles or divisions of the UCC, the definition of such term contained in Article 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Lender’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of Louisiana, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.

 

“Validity Guaranty” means the VALIDITY AGREEMENT, dated as of the Effective Date, executed by Arthur L. Smith in favor of the Agent for the benefit of the Lenders, as the same may be amended, restated or modified from time to time.All words and phrases used herein (including, without limitation, the following capitalized terms Accounts, Commercial Tort Claims, Deposit Accounts, Documents, Electronic Chattel Paper, Equipment, Farm Products, Goods, Health Care Insurance Receivables, Instruments, Insolvency Proceeding, Inventory, Leases, Letter-of-Credit Rights, Money, Payment Intangibles, Supporting Obligations and Tangible Chattel Paper) shall have the meaning specified in the UCC except to the extent such meaning is inconsistent with this Agreement. All definitions contained in this Agreement are equally applicable to the singular and plural forms of the terms defined. The words “hereof,” “herein” and “hereunder” and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Any accounting term used in the Loan Documents shall have, unless otherwise specifically provided therein, the meaning customarily given such term in accordance with GAAP, and all financial computations thereunder shall be computed, unless otherwise specifically provided therein, in accordance with GAAP consistently applied; provided, that all financial covenants and calculations in the Loan Documents shall be made in accordance with GAAP as in effect on the Effective Date unless Borrower and Lender shall otherwise specifically agree in writing. That certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall in no way be construed to limit the foregoing.

 

 

2. Credit Facility.

 

(a) Revolving Credit Facility. Subject to the terms and conditions set forth in this Agreement and the other Loan Documents, each of Thermo and Aegis severally and not jointly hereby agrees to make Advances to Borrower under a credit facility (the “Revolving Credit Facility”) in an aggregate sum not to exceed the LESSER of (i) an amount equal to the Borrowing Base, or (ii) TWO MILLION AND 00/100 DOLLARS ($2,000,000.00) (the “Maximum Amount”), on a revolving basis from time to time (with each of Thermo and Aegis agreeing to lend one-half of the Maximum Amount) during the period commencing on the Effective Date and continuing until the EARLIER of: (i) February 2, 2025 (the “Stated Maturity Date”), and (ii) the acceleration of the Indebtedness pursuant to the terms of the Loan Documents (the EARLIER of such dates being the “Maturity Date”). If at any time the sum of the aggregate principal amount of Advances outstanding under the Revolving Credit Facility exceeds the lesser of the Maximum Amount or the Borrowing Base, such amount shall be deemed an “Overadvance.” Borrower shall repay the amount of such Overadvance plus all accrued and unpaid interest thereon within one Business Day of receipt of written demand from Lender, and any failure to repay such amounts within such period shall constitute an Event of Default. Notwithstanding anything contained herein to the contrary, an Overadvance shall be considered part of the Loan and shall bear interest at the interest rates set forth in the Note evidencing the Revolving Credit Facility and be secured by this Agreement. Subject to the terms and conditions hereof, Borrower may borrow, repay and reborrow funds under the Revolving Credit Facility.

 

(b) Funding. Lender reserves the right to require not less than ONE (1) Business Day prior notice of each Advance under the Revolving Credit Facility, specifying the aggregate amount of such Advance together with any documentation relating thereto as Lender may reasonably request; including, but not limited to, a Borrowing Base Certificate and an Advance Request Form. Borrower shall give Lender notice of each Advance under the Revolving Credit Facility by no later than 1:00 p.m. (New Orleans, Louisiana time). Lender may accept telephonic requests for such Advance, provided that such acceptance shall not constitute a waiver of Lender’s right to require delivery of a written request in connection with subsequent Advances. Lender shall have no liability to Borrower for any loss or damage suffered by Borrower as a result of Lender’s honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it. Subject to the terms and conditions of this Agreement, each Advance under this section shall be made available to Borrower by depositing the same, in immediately available funds, in an account of Borrower designated by Borrower or by paying the proceeds of such Advance to a third party designated by Borrower.

 

(c) Use of Proceeds. The Advances under the Revolving Credit Facility shall be used by Borrower for working capital in the ordinary course of business and to refinance certain existing Debt of Borrower.

 

(d) Fees. Borrower agrees to pay to Lender a commitment fee (the “Commitment Fee”) equal to ONE PERCENT (1.00%) of the Maximum Amount for the establishment of the Credit Facility. The Commitment Fee shall be fully earned as of the Effective Date. The Commitment Fee shall be due and payable on the Effective Date.

 

Borrower agrees to pay to Lender a monitoring fee equal to FIVE TENTHS PERCENT (.50%) of the Maximum Amount, in arrears, on the first day of each month (pro rated for any partial month).

 

Borrower agrees to pay a Due Diligence Retainer of $1,500 to cover the cost of lien searches, background checks, legal expenses and other expense necessary to complete due diligence. Any unused retainer will be reimbursed to Borrower. Any excess expense will be due by Borrower to Lender in accordance with Section 23.

 

 

(e) Collections and DACA Account. Except as may otherwise be established by Lender in writing, a Deposit Account Control Agreement will be established or assigned, as the case may be, within sixty (60) days of the Effective Date, for the benefit of Lender covering a deposit account (“DACA Account”) into which all Collections from account debtors with respect to accounts receivable shall be deposited. The DACA Account will be maintained at the expense of Borrower and include as interested secured parties Lender and Term Loan Administrative Agent. Borrower agrees to deposit all Collections it receives with respect to accounts receivable in the DACA Account and will instruct each account debtor to make all payments on accounts receivable to said DACA Account. At the end of each Business Day, (i) if an Event of Default pursuant to Section 11(a) (“Payment Default”) of this Agreement has occurred and is continuing, Lender shall send a Notice of Payment Default jointly to Borrowers and Term Loan Administrative Agent and, if such Payment Default is not cured by Borrowers, directly or through the Term Loan Administrative Agent, with ten (10) days of receipt of the Notice of Payment Default, Lender may in its sole discretion send a Notice of Exclusive Control to the depositary bank at which the DACA Account is maintained, and after such notice of exclusive control has taken effect, all funds in the DACA Account will be remitted as instructed by Lender, for application to the Indebtedness, or otherwise as permitted under the Loan Documents, or (ii) otherwise, all funds in the DACA Account shall be remitted to the Operating Account for use by the Borrowers and their Subsidiaries for any permitted corporate purpose hereunder.

 

As Collateral for the repayment of the Indebtedness, each Borrower does hereby pledge and grant a security interest to Lender in, all right, title and interest of such Borrower in and to all amounts deposited, from time to time, in the DACA Account. Any Collections relating to accounts receivable held by any Borrower pending deposit to the DACA Account as provided in this Agreement, shall be held in trust for the benefit of Lender until such amounts are deposited into the DACA Account. All Collections in respect of accounts receivable received by Borrower and not deposited directly by each account debtor shall be remitted to the DACA Account no later than the next Business Day following Borrower’s receipt thereof, and if such Collections are not remitted on a timely basis, it shall be an immediate Event of Default hereunder. Borrower’s failure to comply with this Section shall be an immediate Event of Default hereunder.

 

Notwithstanding the foregoing, following the occurrence and during the continuance of any Event of Default, including but not limited to a Payment Default, Lender agrees that it will not take action to establish exclusive control of the DACA Account for a period of sixty-five (65) days (“Waiting Period”) following the transmittal of a Notice of Event of Default or Notice of Payment Default to Borrowers and Term Loan Administrative Agent; provided Borrowers maintain a Minimum Billing to Indebtedness Ratio of 1.05 to 1.00. For the purposes of this section, “Minimum Billing to Indebtedness Ratio” shall mean, as of any date, the ratio of (x) the total of all bi-monthly billing of Borrowers for the two regularly occurring billing cycles ended most recently before such date to (y) the aggregate amount of Indebtedness on such date. Following the expiration of the Waiting Period, or should Borrower fail to maintain the Minimum Billing to Indebtedness Ratio, (i) should the Event of Default or Payment Default not be cured, Lender may in its sole discretion deliver a Notice of Exclusive Control to the depository bank at which the DACA Account is maintained, and after such notice of exclusive control has taken effect, all funds in the DACA Account will be remitted as instructed by Lender, for application to the Indebtedness, or otherwise as permitted under the Loan Documents, or (ii) otherwise, all funds in the DACA Account shall be remitted to the Operating Account for use by the Borrowers and their Subsidiaries for any permitted corporate purpose hereunder.

 

During the pendency of a Payment Default, Borrowers agree to provide Lender any and all documentation or evidence of all billings issued within three (3) days of its regular bi-monthly billing cycles.

 

(f) Make Whole Provision. Borrowers may obtain, in whole (but not in part), the termination of Lender’s commitment to lend under the Revolving Credit Facility prior to the Stated Maturity Date by providing written notice of its intent to terminate the Revolving Credit Facility and repaying the entire outstanding principal balance of the Revolving Credit Facility, together with all accrued interest and fees and any other sums due Lender at the time of prepayment, PLUS a make whole payment (the “Make Whole Payment”) that is (1) ONE PERCENT (1.00%) of the Pro Rata Portion should the prepayment occur within SIX MONTHS of the Effective Date, or (2) FIVE TENTHS PERCENT (0.5%) of the Pro Rata Portion should the prepayment occur SIX MONTHS after the Effective Date. “Pro Rata Portion” is the number obtained by multiplying (i) a sum equal to the MAXIMUM AMOUNT by (ii) (1) the remaining number of months until the Stated Maturity Date, divided by (2) Twelve (12). No make-whole payment shall be due and payable if prepayment is made within THIRTY (30) days of the Stated Maturity Date. For the avoidance of doubt, the Borrowers shall be permitted to repay all or any portion of the outstanding Advances at any time and from time to time, without payment of any Make Whole Payment, so long as the Revolving Credit Facility is not terminated in accordance with this Section 2(f).

 

 

(g) Joint, Several and In Solido Liability. Borrowers and any other Person named or identified as a Borrower under the Loan Documents, as may be amended from time to time, hereby irrevocably and unconditionally: (i) agree that each is JOINTLY, SEVERALLY AND IN SOLIDO liable to Lender for the full and prompt payment and performance of the Indebtedness under the Loan Documents in accordance with the terms thereof; and (ii) agree to fully and promptly perform all of their obligations hereunder and the other Loan Documents with respect to each Loan hereunder as if such Loan had been made directly to it. Each Borrower hereby designates Craig Clement and Antonio Estrada, or each of them, as its representatives and agents on its behalf for the purposes of giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of the Borrowers under the Loan Documents. Each of Craig Clement and Antonio Estrada hereby accepts such appointment. Lender may regard any notice or other communication pursuant to any Loan Document from either Craig Clement or Antonio Estrada as a notice or communication from each Borrower. Each warranty, covenant, agreement and undertaking made on behalf of any Borrower by Craig Clement or Antonio Estrada shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as it if the same had been made directly by such Borrower.

 

(h) Cross-Guaranty. Each Borrower hereby agrees that such Borrower is JOINTLY SEVERALLY AND IN SOLIDO liable for, and hereby absolutely and unconditionally guarantees to Lender and its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Indebtedness owed or hereafter owing to Lender by any Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and not of collection, that its obligations under this Section 2(h) shall not be discharged until indefeasible payment and performance (subject to the proviso in the immediately preceding sentence) in full of the Indebtedness has occurred, and that its obligations under this Section 2(h) shall be absolute and unconditional, irrespective of and unaffected by:

 

(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;

 

(ii) the absence of any action to enforce this Agreement, including this Section 2(h), or any other Loan Document or the waiver or consent by Lender with respect to any of the provisions thereof;

 

(iii) the existence, value or condition of, or failure to perfect its lien against, any security or Collateral for the Indebtedness or any action, or the absence of any action, by Lender in respect thereof (including the release of any such security or Collateral);

 

(iv) the insolvency of any Borrower or any Guarantor; or

 

(v) any other action or circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.

 

Each Borrower shall be regarded, and shall be in the same position, as principal Borrower with respect to the Indebtedness guaranteed hereunder. To the extent that any Borrower shall make a payment under this Section 2(h) of all or any of the Indebtedness (other than Loans made to such Borrower for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Indebtedness satisfied by such Guarantor Payment in the same proportion that such Borrower’s Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of Borrower as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Indebtedness, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 2(h) without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. This Section 2(h) is intended only to define the relative rights of each Borrower and nothing set forth herein is intended to or shall impair the obligations of any Borrower, jointly, severally and in solido, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement. Nothing contained in this Section 2(h) shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, fees and expenses with respect thereto for which such Borrower shall be primarily liable. The liability of each Borrower under this Section 2(h) is in addition to and shall be cumulative with all other liabilities of any Borrower to Lender under the Loan Documents to which such Borrower is a party, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.

 

 

3. Note, Rate and Computation of Interest. The Revolving Credit Facility established pursuant to the Loan Documents shall be evidenced by the Note payable to the order of Lender that has been duly executed and delivered by Borrowers to Lender on the Effective Date. Interest on each Note shall accrue at the rates set forth therein. The principal of and interest on such Note shall be due and payable in accordance with the terms and conditions set forth in such Note and in this Agreement. All payments under this Agreement and the other Loan Documents shall be made to Lender at Lender’s offices as set forth herein in Dollars and immediately available funds, without setoff, deduction or counterclaim, and free and clear of all taxes, at the time and in the manner provided in such Note.

 

4. Collateral.

 

(a) Grant of Security Interest. As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Indebtedness, each Borrower hereby pledges to and grants to Agent and each Lender a security interest in all of such Borrower’s right, title and interest in the Collateral, whether now owned by such Borrower or hereafter acquired and whether now existing or hereafter coming into existence (excluding, however, any Licenses or other permits issued by a State Regulatory Authority, or any other Governmental Authority to the extent, and only to the extent, it is unlawful to grant a security interest in such Licenses or other permits, but including, without limitation, the right to receive all proceeds derived or arising from or in connection with the sale, assignment, transfer or transfer of control over such Licenses or other permits). The security interest granted herein in connection with the Licenses issued by a State Regulatory Authority is intended to include, and hereby includes, all private (including economic) attributes of such Licenses, as distinguished from the “public” rights to assign such Licenses which are explicitly reserved to a State Regulatory Authority. If at any time in the future laws permit each Borrower to grant a security interest in a license, permit or authorization issued by a State Regulatory Authority, this Agreement shall be deemed to grant a security interest in such Licenses immediately thereupon without any further action by or notice to the Borrowers or Lender. In furtherance of the foregoing, the Borrowers agree to cooperate fully with the Lender to obtain and perfect such security interest as may be required. If any Borrower at any time holds or acquires a Commercial Tort Claim in excess of $25,000, such Borrower shall notify Lender in writing within FIVE (5) Business Days of such occurrence with the details thereof and grant to Lender a security interest therein or Lien thereon and in the proceeds thereof, in form and substance satisfactory to Lender. If the security interest granted hereby in any rights of any Borrower under any contract or other agreement included in the Collateral is expressly prohibited by such contract, then the security interest hereby granted therein nonetheless remains effective to the extent allowed by Article 9 of the UCC or other applicable law, but is otherwise limited by that prohibition.

 

Notwithstanding anything herein to the contrary, (i) the Liens and security interests granted to Lender and Agent pursuant to this Agreement and (ii) the exercise of any right or remedy by Lender or Agent, in its capacity as agent hereunder, and the application of proceeds (including insurance proceeds and condemnation proceeds) of any Collateral are subject to the provisions of the Intercreditor Agreement dated as of February 2, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among Lender, Post Road Administrative LLC, and certain other persons party thereto or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern and control.

 

(b) Borrower Remains Liable. Notwithstanding anything to the contrary contained herein, (i) Borrower shall remain liable under the contracts and agreements included in the Collateral to the extent set forth therein to perform all of Borrower’s respective duties and obligations thereunder to the same extent as if this Agreement had not been executed; (ii) the exercise by Lender of any of its rights hereunder shall not release Borrower from any of its duties or obligations under the contracts and agreements included in the Collateral and (iii) Lender shall not have any obligation or liability under any of the contracts and agreements included in the Collateral by reason of this Agreement, nor shall Lender be obligated to perform any of the obligations or duties of Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.

 

 

(c) Intellectual Property. All registered Intellectual Property owned or used by any Borrower (if any) is listed, together with application or registration numbers, where applicable, in Schedule I. Each Borrower owns, or is licensed to use, all Intellectual Property necessary to conduct its business as currently conducted except for such Intellectual Property the failure of which to own or license would not reasonably be expected to have a Material Adverse Effect. Each Borrower will maintain the patenting and registration of all of its Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or other appropriate Governmental Authority, and each Borrower will promptly patent or register, as the case may be, all new Intellectual Property (and shall notify Lender in writing within 90 days after filing any such new patent or registration), in each case unless, in the reasonable business judgment of the management of such Borrower, the cost of maintaining, patenting or registering such existing or new Intellectual Property exceeds the benefits thereof.

 

(d) Additional Documents. TO SECURE FULL AND COMPLETE PAYMENT AND PERFORMANCE OF THE INDEBTEDNESS, EACH BORROWER AND EACH GUARANTOR SHALL EXECUTE AND DELIVER OR CAUSE TO BE EXECUTED AND DELIVERED ALL OF THE LOAN DOCUMENTS REASONABLY REQUESTED BY LENDER TO CARRY OUT THE PROVISIONS AND PURPOSES OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND TO CREATE, PRESERVE, AND PERFECT THE LIENS OF LENDER IN THE COLLATERAL. IN THE EVENT ANY OF THE LOAN DOCUMENTS EVIDENCING OR SECURING THE INDEBTEDNESS MISREPRESENTS OR INACCURATELY REFLECTS THE CORRECT TERMS AND/OR PROVISIONS OF THE INDEBTEDNESS, EACH BORROWER AND EACH GUARANTOR SHALL UPON REASONABLE REQUEST BY LENDER AND IN ORDER TO CORRECT SUCH MISTAKE, EXECUTE SUCH NEW DOCUMENTS OR INITIAL CORRECTED, ORIGINAL DOCUMENTS AS LENDER MAY REASONABLY REQUEST TO REMEDY SAID ERRORS OR MISTAKES. EACH BORROWER AND EACH GUARANTOR SHALL EXECUTE SUCH OTHER DOCUMENTS AS LENDER SHALL REASONABLY REQUEST TO CORRECT ANY DEFECTS OR DEFICIENCIES IN THE LOAN DOCUMENTS. ANY BORROWER’S OR ANY GUARANTOR’S FAILURE TO EXECUTE SUCH DOCUMENTS AS REASONABLY REQUESTED SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THIS AGREEMENT.

 

(e) Setoff. As further security for the Indebtedness, Borrower grants to Lender a FIRST (1^st) Lien and contractual right of set-off in and to all money and property of Borrower now or at any time hereafter coming within the custody or control of Lender, including (without limitation) all deposit accounts, whether such deposit accounts have matured or not, and whether the exercise of such right of set-off results in loss of interest or other penalty under the terms of the deposit account agreement. It is further agreed that Lender shall have a FIRST (1^st) Lien on all deposits and other sums at any time credited by or due from Lender to Borrower as security for the payment of the Indebtedness, and Lender, at its option after the occurrence of an Event of Default may without notice and without any liability, hold all or any part of any such deposits or other sums until all amounts owing under the Loan Documents have been paid in full, and/or Lender may apply or set-off all or any part of any such deposits or other sums credited by or due from Lender to or against any sums due under the Loan Documents in any manner and in any order of preference which Lender, in its sole discretion, chooses. The rights and remedies of Lender hereunder are in addition to any other rights and remedies (including, without limitation, other rights of setoff) which Lender may have.

 

(f) Satisfaction of Indebtedness. Until the Indebtedness has been paid in full in cash (other than contingent indemnification obligations to the extent no unsatisfied claim has been asserted) and the commitments of Lender under the Credit Facility have been terminated, Lender shall be entitled to retain the security interests in the Collateral granted under the Loan Documents and the ability to exercise all rights and remedies available to Lender under the Loan Documents and applicable laws.

 

5. Conditions Precedent.

 

(a) Initial Advance. The obligation of Lender to make the initial Advance under the Credit Facility is subject to the condition precedent that Lender shall have received, or such condition shall be otherwise satisfied, as of the Effective Date, to Lender’s satisfaction, the following:

 

(i) Closing Certificate. A CLOSING CERTIFICATE executed by a Responsible Officer of the governing body of Borrowers, which certifies: (1) the resolutions of Borrowers authorizing the execution, delivery, and performance of the Loan Documents that Borrowers are a party to; (2) certificates of the appropriate government officials of the state of organization of Borrower and any governing body of Borrowers, and any state Borrowers are currently doing business as to the existence, qualification and good standing of Borrowers, dated no more than TEN (10) days prior to the Effective Date; (3) the true and correct Constituent Documents of Borrowers and any governing body of Borrowers and (4) the names of the Responsible Officer authorized to sign the Loan Documents that Borrowers are a party to, together with specimen signatures of such Persons.

 

 

(ii) Loan Documents. The Loan Documents executed by each party thereto.

 

(iii) Financing Statements. UCC financing statements covering the Collateral shall have been filed with such filing officers as Lender may request.

 

(iv) Insurance Matters. Copies of insurance certificates describing all insurance policies as may be required by Lender, together with loss payee and lender endorsements in favor of Lender with respect to all insurance policies covering the Collateral.

 

(v) Lien Search. The results of a UCC or other Lien search showing all financing statements and other documents or instruments on file against Borrower in such locations as Lender may reasonably request, dated no more than TEN (10) days prior to the Effective Date.

 

(vi) Fees and Expenses. Evidence that the outstanding Lender Costs and Expenses and all fees owing to Lender on the Effective Date, shall have been paid in full by Borrower.

 

(vii) Other Matters. Such other documents and agreements as may be required by Lender in its reasonable discretion.

 

(b) All Advances. The obligation of Lender to make any Advance shall be subject to the following additional conditions precedent:

 

(i) Request for Advance. Lender shall have received in accordance with this Agreement, an Advance Request Form satisfactory to Lender in its Permitted Discretion dated as of the date of request and executed by a Responsible Officer of Borrower;

 

(ii) No Default, Etc. No Default or event which would reasonably be expected to have a Material Adverse Effect shall have occurred and be continuing, or would result from or after giving effect to such Advance; and

 

(iii) Representations and Warranties. All of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects on and as of the date of such Advance (or, if any such representation and warranty speaks to an earlier date, such earlier date) with the same force and effect as if such representations and warranties had been made on and as of such date.

 

Each Advance hereunder shall be deemed to be a representation and warranty by Borrowers that the conditions specified in this Section have been satisfied on and as of the date of the applicable Advance.

 

6. Representations and Warranties. Upon each Advance hereunder, each Borrower and Guarantor hereby represents and warrants to Lender as follows (as to each Guarantor, to the extent such representations and warranties are addressed to such Guarantor):

 

(a) Existence; Location. Such Borrower (i) is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization; (ii) has all requisite power and authority to own its assets and carry on its business as now being or as proposed to be conducted; and (iii) is qualified to do business in all jurisdictions in which the nature of its business makes such qualification necessary and where failure to so qualify would have a Material Adverse Effect. Such Borrower has the power and authority to execute, deliver, and perform its obligations under the Loan Documents to which it is or may become a party. Such Borrower’s exact legal name, jurisdiction of organization, type of entity, and the location of its principal place of business, or chief executive office (or the principal residence if each Borrower is a natural person) and of the books and records relating, are disclosed as set forth in this Agreement. Such Borrower has no places of business except those disclosed in writing to Lender. Such Borrower has not changed its name, jurisdiction of organization, principal place of business, or chief executive office (or principal residence if such Borrower is a natural person) or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past FIVE (5) years. Such Borrower’s exact legal name is set forth in the introductory paragraph hereto.

 

 

(b) Binding Obligations. The execution, delivery, and performance of the Loan Documents by such Borrower have been duly authorized by all necessary action by such Borrower, and constitute legal, valid and binding obligations of such Borrower, enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors’ rights and except to the extent specific remedies may generally be limited by equitable principles.

 

(c) No Consent. The execution, delivery and performance of the Loan Documents, and the consummation of the transactions contemplated thereby, do not (i) conflict with, result in a violation of, or constitute a default under (1) any provision of the Constituent Documents (if any) or other instrument binding upon such Borrower, (2) any law, governmental regulation, court decree or order applicable to such Borrower, or (3) any contractual obligation, agreement, judgment, license, order or permit applicable to or binding upon such Borrower, (ii) require the consent, approval or authorization of any third party, or (iii) result in or require the creation of any Lien, charge or encumbrance upon any property or asset of such Borrower except as may be expressly contemplated in the Loan Documents. No consent is required for the exercise by Lender of the rights provided for in the Loan Documents or the remedies in respect of the Collateral pursuant to the Loan Documents (except as may be required in connection with the disposition of certain Collateral, applicable law, regulation or judicial decision).

 

(d) Financial Condition. Each financial statement of such Borrower or Guarantor supplied to Lender truly discloses and fairly presents in all material respects such Borrower’s or Guarantor’s financial condition as of the date of each such statement. All projections delivered by such Borrower or Guarantor to Lender have been prepared in good faith, with care and diligence and use assumptions that are believed by such Borrower or Guarantor to be reasonable under the circumstances at the time such projections were prepared and delivered to Lender and all such assumptions are disclosed in such projections.

 

(e) Operation of Business. Such Borrower possesses all contracts, licenses, permits, franchises, patents, copyrights, trademarks, and tradenames, or rights thereto, necessary to conduct its businesses substantially as now conducted and as presently proposed to be conducted, and such Borrower is not in violation of any valid rights of others with respect to any of the foregoing, except any violations that would not reasonably be expected to have a Material Adverse Effect.

 

(f) Litigation and Judgments. There is no action, suit, investigation, or proceeding before or by any Governmental Authority or arbitrator pending, or to the knowledge of such Borrower or Guarantor, as applicable, threatened against or affecting such Borrower or Guarantor that would reasonably be expected to have a Material Adverse Effect. As of the Effective Date, there are no outstanding judgments against such Borrower or Guarantor.

 

(g) Debt. Such Borrower has no Debt other than the Permitted Debt.

 

(h) Disclosure. The written statements, information, reports, representations and warranties (other than to the extent consisting of general economic or industry information, third-party reports or forward-looking statements) made by the Borrowers and Guarantors in the Loan Documents or furnished to Lender in connection with the Loan Documents or any of the transactions contemplated hereby, taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements herein or therein not materially misleading in the light of the circumstances in which such statements were made. There is no fact known to such Borrower or Guarantor which would reasonably be expected to have a Material Adverse Effect that has not been disclosed in writing to Lender.

 

 

(i) Subsidiaries, Ventures, Etc. Such Borrower (other than Parent, which is the parent company of each other Borrower) has no Subsidiaries or joint ventures or partnerships.

 

(j) Agreements. Except as disclosed in the Public Filings, (a) no Borrower is a party to any indenture, loan, or credit agreement, or to any lease or other material agreement or instrument, or subject to any restriction in any of its Constituent Documents, which would reasonably be expected to have a Material Adverse Effect and (b) no Borrower is in default in any material respect in the performance, observance, or fulfillment of any of the obligations, covenants, or conditions contained in any agreement or instrument material to its business.

 

(k) Compliance with Laws. Such Borrower or Guarantor is not in violation of any law, rule, regulation, order, or decree of any Governmental Authority or arbitrator other than any violation that would not reasonably be expected to have a Material Adverse Effect.

 

(l) Taxes; Governmental Charges. Such Borrower or Guarantor has filed all federal, state and local tax reports and returns required by any law or regulation to be filed by it and has either duly paid all taxes, duties and charges indicated due on the basis of such returns and reports, or made adequate provision for the payment thereof, and the assessment of any material amount of additional taxes in excess of those paid and reported is not reasonably expected. Neither Borrowers nor Guarantors have knowledge of any pending investigation of such Borrowers or Guarantors by any taxing authority or any pending but unassessed tax liability, other than as disclosed in the Public Filings.

 

(m) Use of Proceeds; Margin Securities. Such Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of regulations of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.

 

(n) ERISA. Such Borrower is in compliance in all material respects with all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations and published interpretations thereunder (“ERISA”). Neither a reportable event nor a prohibited transaction has occurred and is continuing with respect to any plan. No notice of intent to terminate a plan has been filed, nor has any plan been terminated. No circumstances exist which constitute grounds entitling the Pension Benefit Guaranty Corporation or any entity succeeding to all or any of its functions under ERISA (the “PBGC”) to institute proceedings to terminate, or appoint a trustee to administer, a plan, nor has the PBGC instituted any such proceedings. Neither such Borrower nor any ERISA Affiliate (as defined below) has completely or partially withdrawn from a multiemployer plan. Such Borrower and each ERISA Affiliate have met their minimum funding requirements under ERISA with respect to all of their plans, and the present value of all vested benefits under each plan do not exceed the fair market value of all plan assets allocable to such benefits, as determined on the most recent valuation date of the plan and in accordance with ERISA. Neither such Borrower nor any ERISA Affiliate has incurred any liability to the PBGC under ERISA. “ERISA Affiliate” means each trade or business (whether or not incorporated) which together with such Borrower would be deemed to be a “single employer” within the meaning of section 4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Internal Revenue Code of 1986.

 

(o) Regulated Entities. Such Borrower is not (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940 or (ii) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other federal or state statute, rule or regulation limiting its ability to incur Debt, pledge its assets or perform its obligations under the Loan Documents.

 

(p) Foreign Assets Control Regulations and Anti-Money Laundering. Such Borrower and each Subsidiary of such Borrower is and will remain in compliance in all material respects with all United States economic sanctions laws, Executive Orders and implementing regulations as promulgated by the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”), and all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it.

 

(q) Solvency. On the Effective Date and on the date of each Advance, the Borrowers, taken as a whole, will be and after giving effect to the requested Advance, will be, solvent.

 

 

(r) Representations and Warranties Relating to the Collateral.

 

(i) Information. All information supplied by such Borrower to Lender with respect to the Collateral is true, correct, and complete in all material respects; including, without limitation representations with respect to Eligible Accounts.

 

(ii) Security Interest. Such Borrower has and will have at all times (1) good and valid rights in and title to the Collateral with respect to which it has purported to grant a security interest hereunder and (2) full right, power and authority to grant a security interest in the Collateral to Lender in the manner provided herein, free and clear of any Lien, security interest or other charge or encumbrance other than for the Permitted Encumbrances. The Loan Documents create a legal, valid and binding security interest in favor of Lender in all now owned and hereafter acquired Collateral securing the Indebtedness; and upon the filing of all UCC financing statements naming such Borrower as “debtor” and Lender as “secured party” and describing the Collateral in the filing offices in the jurisdiction in which such Borrower is organized, the security interests granted to Lender thereunder constitute valid and perfected FIRST (1^st) priority Liens (subject to Permitted Encumbrances that, as a matter of law or the Intercreditor Agreement, are senior to the security interests granted to the Lender) to the extent that the same may be perfected by the filing of a UCC financing statement.

 

(iii) No Financing Statements or Control Agreements. Other than the financing statements and control agreements with respect to this Agreement, there are no other financing statements or control agreements covering any Collateral of such Borrower, other than those evidencing Permitted Encumbrances.

 

(iv) Maintenance of Collateral. All tangible Collateral which is material to such Borrower’s business is in good repair and condition, ordinary wear and tear and casualty excepted.

 

(v) Inventory. All inventory of such Borrower (if any) has been and will hereafter be produced in compliance with all applicable laws, rules, regulations, and governmental standards, including, without limitation, the minimum wage and overtime provisions of the Fair Labor Standards Act (29 U.S.C. §§ 201-219).

 

The foregoing representations and warranties will be true and correct in all respects with respect to any additional Collateral or additional specific descriptions of certain Collateral delivered to Lender in the future by such Borrower. The failure of any of these representations or warranties or any description of Collateral therein to be accurate or complete shall not impair the security interest in any such Collateral.

 

7. Covenants. Until all Indebtedness is paid in full in cash, and Lender has no further commitment to lend under the Credit Facility, each Borrower and Guarantor agrees and covenants as follows (as to each Guarantor, to the extent such covenants are addressed to such Guarantor):

 

(a) Compliance. EACH BORROWER (i) SHALL COMPLY WITH, PERFORM, AND BE BOUND BY ALL COVENANTS AND AGREEMENTS IN THE LOAN DOCUMENTS THAT ARE APPLICABLE TO SUCH BORROWER, ITS ASSETS, OR ITS OPERATIONS, EACH OF WHICH IS HEREBY RATIFIED AND CONFIRMED INCLUDING THE INDEMNIFICATION AND RELATED PROVISIONS ANY LOAN DOCUMENT; AND (ii) CONSENTS TO AND APPROVES THE VENUE, SERVICE OF PROCESS, AND WAIVER OF JURY TRIAL PROVISIONS IN THIS AGREEMENT.

 

(b) Maintenance of Existence; Conduct of Business. Each Borrower shall preserve and maintain its existence and all of its leases, privileges, licenses, permits, franchises, qualifications, and rights that are necessary or desirable in the ordinary conduct of its business except where any failure to do any of the foregoing would not reasonably be expected to result in a Material Adverse Effect. Each Borrower shall conduct its business in accordance with its existing business practices in all material respects.

 

 

(c) Maintenance of Properties. Each Borrower shall maintain, keep, and preserve all of its properties and assets (tangible and intangible) material to the proper conduct of its business in good working order and condition, ordinary wear and tear and casualty excepted.

 

(d) Taxes and Claims. Each Borrower shall pay or discharge at or before maturity or before becoming delinquent (i) all taxes, levies, assessments, and governmental charges imposed on it or its income or profits or any of its property or assets, and (ii) all lawful claims for labor, material, and supplies, which, if unpaid, might become a Lien upon any of its property or assets; provided, however, that Borrower shall not be required to pay or discharge any tax, levy, assessment, or governmental charge which is being contested in good faith by appropriate proceedings diligently pursued, and for which adequate reserves in accordance with GAAP have been established.

 

(e) Ownership and Liens; Impairment of Collateral. Each Borrower will maintain good and valid title to the Collateral free and clear of all Liens, security interests, encumbrances or adverse claims, except for Permitted Encumbrances. Each Borrower will cause any financing statement or other security instrument with respect to the Collateral to be terminated, except for Permitted Encumbrances. Each Borrower will defend at its expense Lender’s right, title and security interest in and to the Collateral against the claims of any third party (other than to the extent prohibited by the Intercreditor Agreement). No Borrower will take any action that would in any manner impair the enforceability of Lender’s security interest in any Collateral. No Borrower will adjust, settle, compromise, amend or modify any Collateral, except an adjustment, settlement, compromise, amendment or modification in good faith and in the ordinary course of business; provided, however, this exception shall terminate following written notice from Lender upon the occurrence and during the continuation of an Event of Default. Each Borrower shall provide to Lender such information concerning (i) any adjustment, settlement, compromise, amendment or modification (in each case exceeding $100,000) of any account constituting Collateral, and (ii) any claim asserted by any account debtor for credit, allowance, adjustment, dispute, setoff or counterclaim (in each case exceeding $100,000), as Lender may reasonably request from time to time.

 

(f) Inspection Rights. At any reasonable time and from time to time, upon reasonable prior notice, each Borrower shall (i) permit representatives of Lender to examine, inspect, review, evaluate and make physical verifications and appraisals of (1) the Collateral, or (2) other property and assets of such Borrower in any manner and through any medium that Lender considers advisable, (ii) to examine, copy, and make extracts from its books and records, (iii) to visit and inspect its properties and assets, and (iv) to discuss its business, operations, and financial condition with its officers and independent certified public accountants, in each instance, at the Borrower’s expense.

 

(g) Keeping Books and Records. Each Borrower shall maintain proper books of record and account in which full, true, and correct entries in conformity with GAAP in all material respects shall be made of all dealings and transactions in relation to its business and activities.

 

(h) Compliance with Laws. Each Borrower and Guarantor shall, and shall cause each of their Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations, orders, and decrees of any Governmental Authority or arbitrator, where the failure to comply would reasonably be expected to have a Material Adverse Effect.

 

(i) Compliance with Agreements. Each Borrower and Guarantor shall comply in all material respects with all agreements, contracts, and instruments binding on it or affecting its properties or business, where the failure to comply would reasonably be expected to have a Material Adverse Effect.

 

(j) ERISA. Each Borrower shall, and shall cause each of its Subsidiaries to, comply with all minimum funding requirements, and all other material requirements, of ERISA, if applicable, so as not to give rise to any liability thereunder.

 

(k) Debt. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, incur, create, assume, or permit to exist any Debt, except (the “Permitted Debt”):

 

(i) Debt to Lender;

 

(ii) Term Loan Debt and other Existing Debt described on the Schedule III;

 

 

(iii) Debt which is subordinated to Lender on terms and conditions acceptable to Lender in its sole discretion as set forth on Schedule III (the “Subordinated Debt”);

 

(iv) Trade payables incurred in the ordinary course of business that are not past due;

 

(v) Debt owed by one Borrower to another Borrower;

 

(vi) capital lease obligations and purchase money Debt (of any or all Borrowers) in an aggregate principal amount not to exceed $100,000 at any time outstanding;

 

(vii) any refinancings, refundings, replacements, renewals, or extensions, in whole or in part, of any Debt otherwise permitted hereunder (provided that the original principal amount of any such Debt described on Schedule III will not be increased) and any guarantees permitted under Section 7(o); and

 

(viii) Debt arising or incurred as a result of or in connection with any letter of credit, letter of guaranty, banker’s acceptance, other deposits or any other similar arrangement by any Borrower in the ordinary course of business, provided that the aggregate amount of such letters of credit, letters of guaranty, banker’s acceptances and similar arrangements of all of the Borrowers shall not exceed $100,000 at any time outstanding.

 

(l) OTHER CHANGES. NO BORROWER WILL, WITHOUT THE PRIOR WRITTEN CONSENT OF LENDER, (i) CREATE, INCUR OR ASSUME INDEBTEDNESS FOR BORROWED MONEY, OTHER THAN INDEBTEDNESS EXPRESSLY PERMITTED BY THE LOAN DOCUMENTS, (ii) SELL, TRANSFER, MORTGAGE, ASSIGN, PLEDGE, LEASE (OTHER THAN IN THE ORDINARY COURSE OF BUSINESS), GRANT A SECURITY INTEREST IN OR ENCUMBER ANY OF SUCH BORROWER’S ASSETS (EXCEPT AS EXPRESSLY PERMITTED BY THE LOAN DOCUMENTS), OR (iii) SELL ANY OF SUCH BORROWER’S ACCOUNTS, EXCEPT TO LENDER.

 

(m) Restricted Payments. No Borrower shall (if any Default has occurred or would occur by reason of any action hereunder), directly or indirectly, declare or pay any dividends or make any other payment or distribution (in cash, property, or obligations) on account of its equity interests (other than payments, dividends or distributions by any Borrower to any other Borrower), or redeem, purchase, retire, call, or otherwise acquire any of its equity interests, or permit any of its Subsidiaries to purchase or otherwise acquire any equity interest of any Borrower or another Subsidiary of Borrowers, or set apart any money for a sinking or other analogous fund for any dividend or other distribution on its equity interests or for any redemption, purchase, retirement, or other acquisition of any of its equity interests, or incur any obligation (contingent or otherwise) to do any of the foregoing.

 

(n) Fundamental Change. Borrowers will not (i) make any material change in the nature of its business as carried on as of the Effective Date, (ii) amend or permit the amendment of any of its Constituent Documents except upon not less than THIRTY (30) days prior written notice to Lender, (iii) liquidate, merge or consolidate with or into any other Person, (iv) make a change in organizational structure or the jurisdiction in which it is organized, or (v) permit ANY change in Borrowers’ legal name or the state of Borrowers’ organization. Borrowers shall execute and deliver all such additional documents and perform all additional acts as Lender, in its sole discretion, may reasonably request in order to continue or maintain the existence and priority of its security interest in all of the Collateral.

 

(o) Loans. No Borrower will make loans to or guarantee any Debt of any other Person, other than (i) the loans outstanding on the date hereof as set forth on Schedule IV hereto, (ii) loans or advances to employees of any Borrower not to exceed an aggregate principal amount among the Borrowers of TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) outstanding at any time, (iii) loans or advances among the Borrowers permitted under Section 7(k)(v), (iv) accounts receivable for sales of inventory and other goods and services provided by any Borrower to its respective customers and (v) guarantees by any Borrower of Debt of another Borrower, to the extent such Debt is not prohibited by Section 7(b).

 

 

(p) Transactions with Affiliates. No Borrower will enter into any transaction, including, without limitation, the purchase, sale or exchange of property or the rendering of any service, with any Affiliate of such Borrower (other than another Borrower), except in the ordinary course of and pursuant to the reasonable requirements of such Borrower’s business (upon prior written notice to Lender) and upon fair and reasonable terms no less favorable to such Borrower than would be obtained in a comparable arm’s-length transaction with a Person or entity not an Affiliate of such Borrower.

 

(q) Waivers and Consents Relating to Real Property Interests. Upon the request of Lender, each Borrower shall cause each mortgagee of real property owned by such Borrower and each landlord of real property leased by Borrower to execute and deliver agreements satisfactory in form and substance to Lender by which such mortgagee or landlord (i) waives or subordinates any rights it may have in the Collateral, or (ii) consents to the mortgage or other encumbrance of Borrower’s interest in such real property. Borrower shall not keep any tangible personal property Collateral (other than any Collateral that is in transit, stored at a customer location, out for repair or in the possession of an employee for corporate purposes, in each case in the ordinary course of business) at any location other than as set forth on Schedule I hereto.

 

(r) Change in Control. Borrowers shall not permit any Change of Control.

 

(s) Disposition of Assets. No Borrower shall, directly or indirectly, sell, lease, assign, transfer, or otherwise dispose of any of its assets, except (i) dispositions of cash, cash equivalents, inventory and other goods, services and other property in the ordinary course of business, (ii) dispositions of property between or among any Borrowers (provided, that any such disposition does not adversely affect the validity or priority of Lender’s lien on such property) and (iii) dispositions, for fair value, of worn-out and obsolete equipment not necessary or useful to the conduct of business. Borrower shall not, directly or indirectly, enter into any arrangement with any Person pursuant to which it leases from such Person real or personal property that has been or is to be sold or transferred, directly or indirectly, by it to such Person without the prior written consent of Lender (such consent not to be unreasonably withheld, conditioned or delayed).

 

(t) Prepayment of Debt. No Borrower shall, directly or indirectly, make any optional or voluntary payment, prepayment, repurchase or redemption of any Debt for borrowed money, except the Indebtedness and satisfaction of accounts payable in the ordinary course of such Borrower’s business. Subject to the above, Borrowers shall be allowed to make any required, optional or voluntary payment, prepayment, repurchase or redemption of its Term Loan Debt if and only if Borrowers are in current compliance with the Financial Covenants contained in Section 8 of this Agreement.

 

(u) Accounting. Borrowers shall not change their fiscal year or make any change (i) in accounting treatment or reporting practices, except as required by GAAP and disclosed to Lender, or (ii) in tax reporting treatment, except as required by law and disclosed to Lender.

 

(v) Insurance. Borrowers will maintain insurance, including but not limited to, fire insurance, comprehensive property damage, public liability, worker’s compensation, and other insurance deemed reasonably necessary by Lender (it being agreed that the Borrowers’ insurance as of the Effective Date is acceptable). Borrower will, at its own expense, maintain insurance with respect to all Collateral in such amounts, against such risks, in such form and with such insurers, as shall be satisfactory to Lender from time to time (it being agreed that the Borrowers’ insurance as of the Effective Date is satisfactory). Each policy of insurance maintained by Borrower shall (i) name Borrower and Lender as insured parties thereunder (without any representation or warranty by or obligation upon Lender) as their interests may appear, (ii) contain the agreement by the insurer that any loss thereunder shall be payable to Lender notwithstanding any action, inaction or breach of representation or warranty by Borrower, and (iii) provide prior written notice of cancellation or of lapse shall be given to Lender by the insurer in accordance with the insurer’s commercial practices as adopted from time to time. Borrower will deliver to Lender original or duplicate policies of such insurance. Borrower will also, at the request of Lender, duly execute and deliver instruments of assignment of such insurance policies and use commercially reasonable efforts to cause the respective insurers to acknowledge notice of such assignment. Subject to the Intercreditor Agreement, all insurance payments in respect of loss of or damage to any Collateral shall be paid to Lender and applied by Lender in accordance with the Loan Documents, provided, however, that so long as no Default exists, each Borrower may use such insurance payments for the repair or replacement of such lost or damaged property.

 

 

(w) Notices of Material Events. Borrowers will furnish to Lender prompt written notice of the following:

 

(i) the occurrence of any Default;

 

(ii) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against Borrower or Guarantor that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect; and

 

(iii) any and all in any Borrower’s financial condition and all claims made against any Borrower that have had or would reasonably be expected to result in a Material Adverse Effect.

 

Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer of Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

 

(x) Accounts and General Intangibles. Each Borrower will, except as otherwise provided herein, collect, at such Borrower’s own expense, all amounts due or to become due under each of the accounts and general intangibles that are included in the Collateral. In connection with such collections, a Borrower may and, at Lender’s direction during the continuance of an Event of Default, will take such action not otherwise forbidden herein as such Borrower or Lender may deem reasonably necessary or advisable to enforce collection or performance of each of such accounts and general intangibles. Each Borrower will also duly perform and cause to be performed all of its material obligations with respect to the goods or services, the sale or lease or rendition of which gave rise or will give rise to each such account and all of its obligations to be performed under or with respect to the general intangibles, except to the extent disclosed in writing to Lender. Each Borrower also covenants and agrees to take any action and/or execute any documents that Lender may reasonably request in order to comply with applicable law relating to the assignment of such accounts.

 

8. Financial Covenant.

 

(a) Minimum Cash Flow to Debt Service Ratio. Until all Indebtedness is paid in full in cash and Lender has no further commitment to lend under the Credit Facility, the Borrowers agree and covenant that, unless Lender shall otherwise consent in writing, the Borrowers on a consolidated basis will maintain a ratio of (x) Cash Flow for the period of four consecutive Fiscal Quarters ending on the last day of each Fiscal Quarter to (y) scheduled interest payments on Debt (excluding non-cash interest and any cash interest that the payee thereof has agreed in writing shall be due in a subsequent period), for such period, of not less than 1.10 to 1.00 as of the end of each Fiscal Quarter beginning with the quarter ending March 31, 2024.

 

(b) Defined Terms. The following terms will have the meanings given such terms in this Section:

 

“Cash Flow” means, for any period of four consecutive Fiscal Quarters, on a consolidated basis for the Borrowers, the sum of (a) net income for such period plus, in each case to the extent reducing net income for such period, the sum of (b)(i) taxes, (ii) depreciation, (iii) amortization, (iv) other non-cash expenses and (v) interest expense.

 

“Fiscal Quarter” means, with respect to Borrowers, any consecutive period of three (3) calendar months ending on the last day of March, June, September and December of each calendar year.

 

A breach of the financial covenant contained in this Section shall be deemed to have occurred as of any date of determination thereof by Lender or as of the last day of any specified measuring period, regardless of when the financial statements or any certificate reflecting such breach are delivered to Lender. Borrowers shall provide Lender such calculations and certificates as Lender shall reasonably require in calculating compliance with the financial covenant set forth herein.

 

 

9. Reporting Requirements. Until all Indebtedness is paid in full in cash, and Lender has no further commitment to lend under the Credit Facility, Borrowers agree and covenant that they will furnish or cause to be furnished the following:

 

(a) Interim Financial Statements. As soon as available, and in any event within FORTY-FIVE (45) days after the end of each calendar month, financial statements to include a balance sheet, income statement and cash flow statement of the consolidated Borrowers, as of the end of such calendar month, all in form and in reasonable detail satisfactory to Lender and duly certified (subject to year-end review adjustments) by a Responsible Officer (i) as being true and correct in all material aspects to the best of such officer’s knowledge (subject to year-end adjustments), and (ii) as having been prepared in accordance with GAAP. Such interim financial statements shall be accompanied by monthly account receivable agings, accounts payable agings, and, on a quarterly basis, Borrower’s quarterly 941-payroll tax form and proof of deposit.

 

(b) Annual Financial Statements and Tax Returns. As soon as available and in any event (i) within NINETY (90) days after the end of each fiscal year, financial statements to include a balance sheet, income statement and cash flow statement of the consolidated Borrowers, as of the end of such fiscal year, all in form and in reasonable detail satisfactory to Lender and duly certified by a Responsible Officer (1) as being true and correct in all material aspects to the best of such officer’s knowledge, and (2) as having been prepared in accordance with GAAP, and (ii) within THIRTY (30) days of filing (and in any event by NOVEMBER 15 of the calendar year immediately following the year for which such returns are filed), a copy of the annual income tax returns for the Borrowers.

 

(c) Borrowing Base. As soon as available and in any event within TWO (2) Business Days after the end of each week or more often as may be required by Lender, a Borrowing Base Certificate in form and content satisfactory to Lender in its Permitted Discretion.

 

(d) Inventory Report. As soon as available, and in any event within THIRTY (30) days after the end of each calendar month, an inventory report (in such form and detail as Lender shall reasonably require) certified by a Responsible Officer of Borrowers.

 

(e) Compliance Certificate. Concurrently with the delivery of each of the financial statements of Borrower referred to in Sections 9(a) and (b), a certificate of a Responsible Officer of Borrowers (i) stating that to such officer’s knowledge, no Default has occurred and is continuing, or if a Default has occurred and is continuing, a statement as to the nature thereof and the action which is proposed to be taken with respect thereto, and (ii) showing in reasonable detail the calculations demonstrating compliance with the financial covenant set forth in Section 8 of this Agreement. The certificate shall be executed in the form attached hereto as Exhibit C, or substantially similar.

 

(f) Guarantor Financial Statements. As soon as available and in any event within THIRTY (30) days after the anniversary of the date of the annual financial statement most recently delivered to Lender, an annual financial statement for each Guarantor, in such form and detail as Lender shall reasonably require.

 

(g) Management Letters. Promptly upon receipt thereof Borrowers shall furnish to Lender, a copy of any management letter or written report submitted to Borrowers by independent certified public accountants with respect to the business, condition (financial or otherwise), operations, prospects, or properties of Borrowers.

 

(h) ERISA Reports. Promptly after the filing or receipt thereof, copies of all reports, including annual reports, and notices which any Borrower files with or receives from the PBGC or the U.S. Department of Labor under ERISA; and as soon as possible and in any event within FIVE (5) Business Days after any Borrower knows or has reason to know that any reportable event or prohibited transaction has occurred with respect to any plan or that the PBGC or any Borrower has instituted or will institute proceedings under Title IV of ERISA to terminate any plan, a certificate of an officer of any Borrower setting forth the details as to such reportable event or prohibited transaction or plan termination and the action that such Borrower proposes to take with respect thereto.

 

(i) Notice of Default and Events of Default. As soon as possible and in any event within FIVE (5) Business Days after the occurrence of each Default, a written notice setting forth the details of such Default and the action which is proposed to be taken by Borrowers with respect thereto.

 

 

(j) General Information. Borrowers shall promptly deliver such other information pertaining to Borrowers as reasonably requested by Lender.

 

10. Rights of Lender. Lender shall have the rights contained in this Section at all times that this Agreement is effective.

 

(a) Financing Statements. Each Borrower hereby authorizes Lender to file one or more financing or continuation statements, and amendments thereto, relating to the Collateral. Each Borrower hereby irrevocably authorizes Lender at any time and from time to time to file in any UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (1) as all assets of such Borrower or words of similar effect; regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC, or (2) as being of an equal or lesser scope or with greater detail, and (ii) contain any other information required by Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment.

 

(b) Power of Attorney. Each Borrower hereby irrevocably appoints Lender as such Borrower’s attorney-in-fact, such power of attorney being coupled with an interest, with full authority in the place and stead of Borrower and in the name of Borrower or otherwise, from time to time following the occurrence and during the continuation of an Event of Default in Lender’s Permitted Discretion, to take any action and to execute any instrument which Lender may deem necessary or appropriate to accomplish the purposes of this Agreement, including without limitation: (i) to obtain and adjust insurance required by Lender hereunder; (ii) to demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of the Collateral; (iii) to receive, endorse and collect any drafts or other instruments, documents and chattel paper in connection with clause (i) or (ii) above; (iv) to file any claims or take any action or institute any proceedings which Lender may deem necessary or appropriate for the collection and/or preservation of the Collateral or otherwise to enforce the rights of Lender with respect to the Collateral; and (v) to act on such Borrower’s behalf as permitted by any other Loan Document.

 

(c) Performance by Lender. If any Borrower or any Guarantor shall fail to perform any covenant or agreement contained in any of the Loan Documents, then Lender may perform or attempt to perform such covenant or agreement on behalf of such Borrower or Guarantor. In such event, such Borrower or Guarantor shall, at the request of Lender, promptly pay to Lender on demand any amount expended by Lender in connection with such performance or attempted performance, together with interest thereon at the Maximum Rate (as such term is defined in the Note) from and including the date of such expenditure to but excluding the date such expenditure is paid in full. Notwithstanding the foregoing, it is expressly agreed that Lender shall not have any liability or responsibility for the performance of any covenant, agreement, or other obligation of any Borrower or any Guarantor under this Agreement or any other Loan Document.

 

(d) Borrower’s Receipt of Proceeds. Upon the occurrence and during the continuation of an Event of Default, all amounts and proceeds (including instruments and writings) received by any Borrower in respect of the Collateral shall be received in trust for the benefit of Lender hereunder and, upon the written request of Lender, shall be segregated from other property of such Borrower and shall be forthwith delivered to Lender in the same form as so received (with any necessary endorsement) and applied to the Indebtedness in accordance with the Loan Documents.

 

(e) Notification of Account Debtors. Lender may at its Permitted Discretion from time to time during the continuation of an Event of Default notify any or all obligors under any accounts (i) of Lender’s security interest in such accounts or general intangibles and direct such obligors to make payment of all amounts due or to become due to any Borrower thereunder directly to Lender, and (ii) to verify the accounts with such obligors. Lender shall have the right, at the expense of the Borrowers, to enforce collection of any such accounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as each Borrower.

 

11. Events of Default. Each of the following shall constitute an “Event of Default” under this Agreement:

 

(a) Payment Default. The failure, refusal or neglect of Borrowers to pay when due any part of the principal of, or interest on the Indebtedness owing to Lender by Borrowers or any other indebtedness or obligations due and owing from Borrowers to Lender under the Loan Documents from time to time and such failure, refusal or neglect shall continue unremedied for a period of TEN (10) days from the date such payment is due.

 

 

(b) Performance or Warranty Default. Except as otherwise provided in this Agreement, the failure of any Borrower or any Guarantor to timely and properly observe, keep or perform any covenant, agreement, warranty or condition required herein or in any of the other Loan Documents or any other agreement with Lender, provided that, if such Default is curable but is not cured within FIVE (5) Business Days following written notice from Lender to such Borrower or Guarantor, then it shall be an Event of Default, except that, if (i) such curable Default cannot be cured within FIVE (5) Business Days, (ii) such Borrower or Guarantor has, within such period, taken such actions as deemed reasonably necessary and appropriate by Lender to cure such curable Default, and (iii) such Borrower or such Guarantor shall continue to diligently pursue such actions, then such cure period shall be extended for a period of THIRTY (30) days.

 

(c) Representations. Any representation contained herein or in any of the other Loan Documents made by any Borrower or any Guarantor is false, misleading or erroneous in any material respect when made or when deemed to have been made.

 

(d) Other Debt. The occurrence of any event which results in the ACCELERATION of the maturity of any Debt for borrowed money (other than any obligations disclosed in the Public Filings as being past due or in default) in an aggregate principal amount in excess of TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00) owing by any Borrower or any Guarantor to any third party under any agreement or understanding.

 

(e) Insolvency. If any Borrower or any Guarantor (i) becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts (other than any obligations disclosed in the Public Filings as being past due or in default) as they become due; (ii) generally is not paying its debts as such debts become due; (iii) has a receiver, trustee or custodian appointed for, or take possession of, all or substantially all of its assets, either in a proceeding brought by it or in a proceeding brought against it and such appointment is not discharged or such possession is not terminated within SIXTY (60) days after the effective date thereof or it consents to or acquiesces in such appointment or possession; (iv) files a petition for relief under the United States Bankruptcy Code or any other present or future federal or state insolvency, bankruptcy or similar laws (all of the foregoing hereinafter collectively called “Applicable Bankruptcy Law”) or an involuntary petition for relief is filed against it under any Applicable Bankruptcy Law and such involuntary petition is not dismissed within SIXTY (60) days after the filing thereof, or an order for relief naming it is entered under any Applicable Bankruptcy Law, or any composition, rearrangement, extension, reorganization or other relief of Borrowers now or hereafter existing is requested or consented to by it; or (v) fails to have discharged within a period of SIXTY (60) days any attachment, sequestration or similar writ levied upon any property of it.

 

(f) Judgment. The entry of any judgment against any Borrower or the issuance or entry of any attachments or other Liens against any of the property of such Borrower for an amount in excess of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00) (individually or in the aggregate) if uninsured, undischarged, unbonded or undismissed on the date on which such judgment would be executed upon.

 

(g) Action Against Collateral. The Collateral or any portion thereof with a value in excess of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) (individually or in the aggregate) is taken on execution or other process of law in any action.

 

(h) Change in Control. Unless otherwise approved by Lender, a Change of Control shall occur.

 

(i) ERISA Default. Any of the following events shall occur or exist with respect to any Borrower or any ERISA Affiliate: (i) any prohibited transaction involving any plan; (ii) any reportable event with respect to any plan; (iii) the filing under Section 4041 of ERISA of a notice of intent to terminate any plan or the termination of any plan; (iv) any event or circumstance that might constitute grounds entitling the PBGC to institute proceedings under Section 4042 of ERISA for the termination of, or for the appointment of a trustee to administer, any plan, or the institution by the PBGC of any such proceedings; or (v) complete or partial withdrawal under Section 4201 or 4204 of ERISA from a multiemployer plan or the reorganization, insolvency, or termination of any multiemployer plan; and in each case above, such event or condition, together with all other events or conditions, if any, have subjected or would in the reasonable opinion of Lender subject any Borrower to any tax, penalty, or other liability to a plan, a multiemployer plan, the PBGC, or otherwise (or any combination thereof) which in the aggregate exceed or would reasonably be expected to exceed ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00).

 

 

(j) Death or Incompetence; Dissolution of Certain Person. Any Borrower or any Guarantor that is (i) a natural Person shall have died or have been declared incompetent by a court of proper jurisdiction, or (ii) not a natural Person shall have been dissolved, liquidated, or merged or consolidated with or into any other Person without the prior written consent of Lender, provided, however, the death or legal incapacity of any Guarantor that is a natural person shall not be an Event of Default if, within THIRTY (30) days of the date of such death or incapacity, the representative or legal guardian of such Guarantor or Guarantor’s estate affirms in writing (which instrument shall be in form and substance satisfactory to Lender) (1) the obligations of such Guarantor’s estate pursuant to the Loan Documents, and (2) that no distributions shall be made from such estate without the prior written consent of Lender.

 

(k) Action of Lien Holder. The holder of any Lien or security interest on the Collateral or any portion thereof in excess of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) (individually or in the aggregate) (without hereby implying the consent of Lender to the existence or creation of any such Lien or security interest on the Collateral), declares a default thereunder or institutes foreclosure or other proceedings for the enforcement of its remedies thereunder.

 

(l) Subordinated Debt. The subordination provisions related to any Subordinated Debt or any other agreement, document or instrument governing any Subordinated Debt shall for any reason be revoked or invalidated, or otherwise cease to be in full force and effect, or any Person shall contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder, or the Indebtedness, for any reason shall not have the priority contemplated by this Agreement or any such subordination provisions.

 

(m) Material Adverse Effect. Any event shall have occurred or is continuing which shall have had a Material Adverse Effect.

 

(n) Loan Documents. (i) The Loan Documents shall at any time after their execution and delivery and for any reason, be declared by a court of competent jurisdiction to be null and void, or shall cease (1) to create a valid and perfected first priority security interest (subject to Permitted Encumbrances) in and to the Collateral; or (2) to be in full force and effect, or (ii) the validity or enforceability of the Loan Documents shall be contested by any Borrower or any Guarantor, or any Borrower or any Guarantor shall deny it has any further liability or obligation under the Loan Documents.

 

Nothing contained in this Agreement shall be construed to limit the events of default enumerated in any of the other Loan Documents and all such events of default shall be cumulative.

 

12. Remedies and Related Rights. If an Event of Default shall have occurred and be continuing, and without limiting any other rights and remedies provided herein, under any of the Loan Documents or otherwise available to Lender, Lender may exercise one or more of the rights and remedies provided in this Section.

 

(a) Remedies. Upon the occurrence of any one or more of the foregoing Events of Default, (i) the entire unpaid balance of principal of the Note, together with all accrued but unpaid interest thereon, and all other Indebtedness owing to Lender by Borrowers at such time shall, at the option of Lender, become immediately due and payable without further notice, demand, presentation, notice of dishonor, notice of intent to accelerate, notice of acceleration, protest or notice of protest of any kind, all of which are expressly waived by Borrowers, and (ii) Lender may, at its option, cease further Advances under the Note and this Agreement; provided, however, concurrently and automatically with the occurrence of an Event of Default under Section 11(e) further advances under the Loan Documents shall automatically cease, the Indebtedness at such time shall, without any action by Lender, become due and payable, without further notice, demand, presentation, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest or notice of protest of any kind, all of which are expressly waived by Borrowers. All rights and remedies of Lender set forth in this Agreement and in any of the other Loan Documents may also be exercised by Lender, at its option to be exercised in its sole discretion, upon the occurrence of an Event of Default, and not in substitution or diminution of any rights now or hereafter held by Lender under the terms of any other agreement.

 

(b) Other Remedies. Upon the occurrence of any one or more of the foregoing Events of Default, Lender may from time to time at its discretion, without limitation and without notice except as expressly provided in any of the Loan Documents:

 

(i) Exercise in respect of the Collateral all the rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Collateral);

 

 

(ii) Require Borrower to, and each Borrower hereby agrees that it will at its expense and upon request of Lender, assemble the Collateral as directed by Lender and make it available to Lender at a place to be designated by Lender which is reasonably convenient to both parties;

 

(iii) Reduce its claim to judgment or foreclose or otherwise enforce, in whole or in part, the security interest granted hereunder by any available judicial procedure;

 

(iv) Sell or otherwise dispose of, at its office, on the premises of any Borrower or elsewhere, the Collateral, as a unit or in parcels, by public or private proceedings, and by way of one or more contracts (it being agreed that the sale or other disposition of any part of the Collateral shall not exhaust Lender’s power of sale, but sales or other dispositions may be made from time to time until all of the Collateral has been sold or disposed of or until the Indebtedness has been paid and performed in full), and at any such sale or other disposition it shall not be necessary to exhibit any of the Collateral;

 

(v) Buy the Collateral, or any portion thereof, at any public sale;

 

(vi) Buy the Collateral, or any portion thereof, at any private sale if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations;

 

(vii) Apply for the appointment of a receiver for the Collateral, and each Borrower hereby consents to any such appointment; and

 

(viii) At its option, retain the Collateral in satisfaction of the Indebtedness whenever the circumstances are such that Lender is entitled to do so under the UCC or otherwise.

 

Each Borrower agrees that in the event such Borrower is entitled to receive any notice under the UCC, as it exists in the state governing any such notice, of the sale or other disposition of any Collateral, reasonable notice shall be deemed given when such notice is deposited in a depository receptacle under the care and custody of the United States Postal Service, postage prepaid, at such Borrower’s address set forth on the signature page hereof, TEN (10) days prior to the date of any public sale, or after which a private sale, of any of such Collateral is to be held. Lender shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Lender may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.

 

(c) Application of Proceeds. If any Event of Default shall have occurred and is continuing, Lender may at its sole discretion apply or use any cash held by Lender as Collateral, and any cash proceeds received by Lender in respect of any sale or other disposition of, collection from, or other realization upon, all or any part of the Collateral as follows in such order and manner as Lender may elect:

 

(i) to the repayment or reimbursement of Lender Costs and Expenses;

 

(ii) to the payment or other satisfaction of any Liens and other encumbrances upon the Collateral;

 

(iii) to the satisfaction of the Indebtedness;

 

(iv) by holding such cash and proceeds as Collateral;

 

(v) to the payment of any other amounts required by applicable law; and

 

 

(vi) by delivery to the Borrowers or any other party lawfully entitled to receive such cash or proceeds whether by direction of a court of competent jurisdiction or otherwise.

 

(d) License. Lender is hereby granted a license or other right to use, following the occurrence and during the continuance of an Event of Default, without charge, each Borrower’s labels, patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks, service marks, customer lists and advertising matter, or any property of a similar nature, as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral, and, following the occurrence and during the continuance of an Event of Default, each Borrower’s rights under all licenses and all franchise agreements shall inure to Lender’s benefit. In addition, each Borrower hereby irrevocably agrees that Lender may, following the occurrence and during the continuance of an Event of Default, sell any of such Borrower’s inventory directly to any Person, including without limitation Persons who have previously purchased such Borrower’s inventory from such Borrower and in connection with any such sale or other enforcement of Lender’s rights under this Agreement, may sell inventory which bears any trademark owned by or licensed to such Borrower and any inventory that is covered by any copyright owned by or licensed to such Borrower and Lender may finish any work in process and affix any trademark owned by or licensed to such Borrower and sell such inventory as provided herein.

 

(e) Use and Operation of Collateral. Should any Collateral come into the possession of Lender, Lender may use or operate such Collateral for the purpose of preserving it or its value, pursuant to the order of a court of appropriate jurisdiction or in accordance with any other rights held by Lender in respect of such Collateral. Each Borrower covenants to promptly reimburse and pay to Lender, at Lender’s request, the amount of all expenses (including the cost of any insurance and payment of taxes or other charges) incurred by Lender in connection with its custody and preservation of the Collateral, which shall be payable by Borrower to Lender upon demand and shall become part of the Indebtedness. However, the risk of accidental loss or damage to, or diminution in value of, the Collateral is on each Borrower, and Lender shall have no liability whatever for failure to obtain or maintain insurance, nor to determine whether any insurance ever in force is adequate as to amount or as to the risks insured. With respect to the Collateral that is in the possession of Lender, Lender shall have no duty to fix or preserve rights against prior parties to such Collateral and shall never be liable for any failure to use diligence to collect any amount payable in respect of such Collateral, but shall be liable only to account to each Borrower for what it may actually collect or receive thereon.

 

(f) Deficiency. In the event that the proceeds of any sale of, collection from, or other realization upon, all or any part of the Collateral by Lender are insufficient to pay all amounts to which Lender is legally entitled, Borrowers and Guarantors (unless otherwise provided) shall be liable for the deficiency, together with interest thereon as provided in the Loan Documents.

 

(g) Non-Judicial Remedies. In granting to Lender the power to enforce its rights hereunder without prior judicial process or judicial hearing, each Borrower and each Guarantor expressly waives, renounces and knowingly relinquishes any legal right which might otherwise require Lender to enforce its rights by judicial process. Each Borrower and each Guarantor recognizes and concedes that non-judicial remedies are consistent with the usage of trade, are responsive to commercial necessity and are the result of a bargain at arm’s length.

 

(h) Use and Possession of Certain Premises. Upon the occurrence of an Event of Default, Lender shall be entitled to occupy and use any premises owned or leased by any Borrower where any of the Collateral or any records relating to the Collateral are located until the Indebtedness is paid or the Collateral is removed therefrom, whichever first occurs, without any obligation to pay any Borrower for such use and occupancy.

 

(i) Other Recourse. Each Borrower and each Guarantor waives any right to require Lender to proceed against any third party, exhaust any Collateral or other security for the Indebtedness, or to have any third party joined with any Borrower in any suit arising out of the Indebtedness or any of the Loan Documents, or pursue any other remedy available to Lender. Each Borrower and each Guarantor further waives any and all notice of acceptance of this Agreement and of the creation, modification, rearrangement, renewal or extension of the Indebtedness. Each Borrower and each Guarantor further waives any defense arising by reason of any disability or other defense of any third party or by reason of the cessation from any cause whatsoever of the liability of any third party. Until all of the Indebtedness shall have been paid in full, neither any Borrower nor any Guarantor shall have any right of subrogation and each Borrower and each Guarantor waives the right to enforce any remedy which Lender has or may hereafter have against any third party, and waives any benefit of and any right to participate in any other security whatsoever now or hereafter held by Lender. Each Borrower and each Guarantor authorizes Lender, and without notice or demand and without any reservation of rights against such Borrower or such Guarantor and without affecting such Borrower’s or such Guarantor’s liability hereunder or on the Indebtedness to (i) take or hold any other property of any type from any third party as security for the Indebtedness, and exchange, enforce, waive and release any or all of such other property, (ii) apply such other property and direct the order or manner of sale thereof as Lender may in its Permitted Discretion determine, (iii) renew, extend, accelerate, modify, compromise, settle or release any of the Indebtedness or other security for the Indebtedness, (iv) waive, enforce or modify any of the provisions of any of the Loan Documents executed by any third party, and (v) release or substitute any third party.

 

 

(j) No Waiver; Cumulative Remedies. No failure on the part of Lender to exercise and no delay in exercising, and no course of dealing with respect to, any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided for in this Agreement and the other Loan Documents are cumulative and not exclusive of any rights and remedies provided by law.

 

(k) Equitable Relief. Each Borrower and each Guarantor recognizes that in the event any Borrower fails to pay, perform, observe, or discharge any or all of the Indebtedness any remedy at law may prove to be inadequate relief to Lender. Each Borrower and each Guarantor therefore agree that Lender, if Lender so requests, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.

 

(l) Louisiana Provisions. For the purposes of Louisiana executory process procedures, each Borrower does hereby acknowledge the Indebtedness and confess judgment in favor of the Lender for the full amount of the Indebtedness. Each Borrower does by these presents consent, agree and stipulate that upon the occurrence of an Event of Default it shall be lawful for the Lender, and each Borrower does hereby authorize the Lender, to cause all and singular the Collateral to be seized and sold under executory or ordinary process, at the Lender’s sole option, without appraisement, appraisement being hereby expressly waived, in one lot as an entirety or in separate parcels as the Lender may determine, to the highest bidder, and otherwise exercise the rights, powers and remedies afforded herein and under applicable law. 

 

13. Cross-Collateralization and Cross-Default. Borrowers and Lender contemplate that Borrowers and Lender have engaged or may, from time to time engage, in various loan transactions and that from time to time other circumstances may arise, in which Borrowers become obligated to Lender, including transactions of a type that are very different from the transactions evidenced by the Loan Documents, including by notes, advances, overdrafts, bookkeeping entries, guaranty agreements, deeds of trust, or any other method or means (each a “Loan Obligation”). Unless otherwise agreed in writing, Borrowers and Lender agree that all such transactions will be secured by the Collateral, and that the Indebtedness arising under this Agreement and the other Loan Documents will be secured by any collateral granted in connection with such Loan Obligation. Repayment of all Indebtedness and performance of all other obligations under this Agreement by Borrowers shall not terminate Lender’s security interests in the Collateral, unless Lender executes a written release, except as provided under applicable law. Unless otherwise agreed in writing, if any default occurs under any Loan Obligation, then Lender may declare an Event of Default and an Event of Default shall be a default under such Loan Obligation. Lender’s failure to exercise cross-defaults shall not constitute a waiver by Lender of such right. Borrowers and Lender agree that, so long as any Term Loan Debt is outstanding, any Loan Obligation secured by the Collateral shall be subject to the Intercreditor Agreement.

 

 

14. Indemnity. BORROWER SHALL INDEMNIFY LENDER AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS (EACH, AN “INDEMNIFIED PERSON”) FROM, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE AND DOCUMENTED ATTORNEYS’ FEES OF ONE FIRM OF LEGAL COUNSEL TO ALL INDEMNIFIED PERSONS) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (a) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (b) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (c) ANY BREACH BY BORROWER OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (d) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE PROPERTIES OR ASSETS OF BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY OTHER OBLIGATED PARTY, OR (e) ANY INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, RELATING TO ANY OF THE FOREGOING. WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH INDEMNIFIED PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING REASOBNABLE AND DOCUMENTED ATTORNEYS’ FEES OF ONE FIRM OF LEGAL COUNSEL FOR ALL INDEMNIFIED PERSONS) ARISING OUT OF OR RESULTING FROM THE SOLE CONTRIBUTORY OR ORDINARY NEGLIGENCE OF SUCH PERSON. THE INDEMNIFICATION PROVIDED FOR IN THIS SECTION SHALL NOT EXTEND TO LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PERSON, BREACH BY ANY INDEMNIFIED PERSON OF THE LOAN DOCUMENTS OR CLAIMS BETWEEN INDEMNIFIED PERSONS. EACH BORROWER AGREES THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO LENDER’S AGREEMENT TO ENTER INTO THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS. If Borrower or any third party ever alleges such gross negligence or willful misconduct by any Indemnified Person, the indemnification provided for in this Section shall nonetheless be paid upon demand, subject to later adjustment or reimbursement, until such time as (a) a court of competent jurisdiction enters a final judgment as to the extent and effect of the alleged gross negligence or willful misconduct, or (b) Lender has expressly agreed in writing with Borrower that such claim is proximately caused by such Indemnified Person’s gross negligence or willful misconduct. The indemnification provided for in this Section shall survive the termination of this Agreement and shall extend and continue to benefit each individual or entity that is or has at any time been an Indemnified Person hereunder.

 

15. Limitation of Liability. Neither Lender nor any officer, director, employee, attorney, or agent of Lender shall have any liability with respect to, and each Borrower and each Guarantor hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, or consequential damages suffered or incurred by any Borrower or any Guarantor in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents. Each Borrower and each Guarantor hereby waives, releases, and agrees not to sue Lender or any of Lender’s Affiliates, officers, directors, employees, attorneys, or agents for punitive damages in respect of any claim in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents. EACH BORROWER AND EACH GUARANTOR AGREES THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO LENDER’S AGREEMENT TO ENTER INTO THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS.

 

16. No Duty. All attorneys, accountants, appraisers, and other professional Persons and consultants retained by Lender shall have the right to act exclusively in the interest of Lender and shall have no duty of disclosure, duty of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to any Borrower, any Guarantor or any of Borrower’s equity holders or any other Person. Documents in connection with the transactions contemplated hereunder have been prepared by Lender’s Counsel. Each Borrower and each Guarantor acknowledges and understands that Lender’s Counsel is acting solely as counsel to Lender in connection with the transaction contemplated herein, is not representing any Borrower or any Guarantor in connection therewith, and has not, in any manner, undertaken to assist or render legal advice to any Borrower or any Guarantor with respect to this transaction. Each Borrower and each Guarantor has been advised to seek other legal counsel to represent their interests in connection with the transactions contemplated herein.

 

 

17. Lender Not Fiduciary. The relationship between each Borrower, each Guarantor and Lender is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with any Borrower or any Guarantor, and no term or condition of any of the Loan Documents shall be construed so as to deem the relationship between any Borrower, any Guarantor and Lender to be other than that of debtor and creditor.

 

18. Waiver and Agreement. Neither the failure nor any delay on the part of Lender to exercise any right, power or privilege herein or under any of the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No waiver of any provision in this Agreement or in any of the other Loan Documents and no departure by any Borrower or any Guarantor therefrom shall be effective unless the same shall be in writing and signed by Lender, and then shall be effective only in the specific instance and for the purpose for which given and to the extent specified in such writing. No modification or amendment to this Agreement or to any of the other Loan Documents shall be valid or effective unless the same is signed by the party against whom it is sought to be enforced.

 

19. Benefits. This Agreement shall be binding upon and inure to the benefit of each Lender, each Borrower and Guarantor, and their respective heirs, personal representatives, successors and assigns, provided, however, that neither any Borrower nor any Guarantor may, without the prior written consent of Lender, assign any rights, powers, duties or obligations under this Agreement or any of the other Loan Documents.

 

20. Notices. All notices or other communications required or permitted to be given pursuant to this Agreement or the other Loan Documents (unless otherwise expressly stated therein) shall be in writing and shall be considered as properly given if (a) mailed by first class United States mail, postage prepaid, registered or certified with return receipt requested, (b) by delivering same in person to the intended addressee, or (c) by delivery to an independent third party commercial delivery service for same day or next day delivery and providing for evidence of receipt at the office of the intended addressee. Notice so mailed shall be effective upon its deposit with the United States Postal Service or any successor thereto; notice sent by such a commercial delivery service shall be effective upon delivery to such commercial delivery service; notice given by personal delivery shall be effective only if and when received by the addressee; and notice given by other means shall be effective only if and when received at the office or designated place or machine of the intended addressee. For purposes of notice, the addresses of the parties shall be as set forth herein; provided, however, that either party shall have the right to change its address for notice hereunder to any other location within the continental United States by the giving notice to the other party in the manner set forth herein.

 

21. Construction; Venue; Service of Process. THE LOAN DOCUMENTS HAVE BEEN EXECUTED AND DELIVERED IN THE STATE OF LOUISIANA, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF LOUISIANA, AND SHALL BE PERFORMABLE BY THE PARTIES HERETO IN THE PARISH IN LOUISIANA WHERE LENDER’S ADDRESS SET FORTH ON LENDER’S SIGNATURE PAGE HEREOF IS LOCATED (THE “VENUE SITE”). ANY ACTION OR PROCEEDING AGAINST ANY BORROWER OR ANY GUARANTOR UNDER OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT WITHIN THE VENUE SITE. EACH BORROWER AND EACH GUARANTOR HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION THEY MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. EACH BORROWER AND EACH GUARANTOR AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED OR DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT. NOTHING IN ANY OF THE OTHER LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST ANY BORROWER OR ANY GUARANTOR OR WITH RESPECT TO THE PROPERTY OF ANY BORROWER OR ANY GUARANTOR IN COURTS IN OTHER JURISDICTIONS. ANY ACTION OR PROCEEDING BY ANY BORROWER OR ANY GUARANTOR AGAINST LENDER SHALL BE BROUGHT ONLY IN A COURT LOCATED IN THE VENUE SITE.

 

22. Invalid Provisions. If any provision of the Loan Documents is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable and the remaining provisions of the Loan Documents shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance.

 

 

23. Expenses. Borrowers shall pay any accrued Lender Costs and Expenses promptly upon demand.

 

24. Participation or Sale of the Loan. Each Borrower and each Guarantor agrees that Lender may, at its option, sell interests in the Loan and its rights under this Agreement to a financial institution or institutions and, in connection with each such sale, Lender may disclose any financial and other information available to Lender concerning each Borrower and/or each Guarantor to each prospective purchaser subject to obtaining a confidentiality agreement with each prospective purchaser prior to disclosing such Borrower’s and/or such Guarantor’s confidential information.

 

25. Conflicts. Except as otherwise expressly provided in the Note, in the event any term or provision of this Agreement is inconsistent with or conflicts with any provision of the other Loan Documents, the terms and provisions contained in this Agreement shall be controlling.

 

26. Counterparts. The Loan Documents may be separately executed in any number of counterparts, each of which shall be an original, but all of which, taken together, shall be deemed to constitute one and the same instrument.

 

27. Survival. All representations and warranties made in the Loan Documents or in any document, statement, or certificate furnished in connection with this Agreement shall survive the execution and delivery of the Loan Documents, and no investigation by Lender or any closing shall affect the representations and warranties or the right of Lender to rely upon them.

 

28. Construction. Each of each Borrower, each Guarantor and Lender acknowledges that it had the opportunity to consult with legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel of its own choice and that this Agreement and the other Loan Documents shall be construed as if jointly drafted by Borrowers, Guarantors and Lender.

 

29. Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of an Event of Default if such action is taken or such condition exists.

 

30. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF EACH BORROWER, EACH GUARANTOR AND LENDER HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

31. Patriot Act Notice. Lender hereby notifies each Borrower that pursuant to the requirements of Section 326 of the USA Patriot Act of 2001, 31 U.S.C. § 5318 (the “Act”), it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow Lender to identify such Borrower in accordance with the Act. In addition, each Borrower agrees (a) to ensure that no Person who owns a controlling interest in or otherwise controls such Borrower or any Subsidiary of such Borrower is or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the OFAC, the Department of the Treasury or included in any Executive Order, (b) not to use or permit the use of proceeds of the Loan to violate any of the foreign asset control regulations of the OFAC or any enabling statute or Executive Order relating thereto, and (c) to comply, or cause its Subsidiaries to comply, with the applicable laws.

 

 

32. Notice of Right to Receive a Copy of Appraisal. If the Indebtedness is secured by a Lien in real property, each Borrower has a right to receive a copy of the appraisal report used in connection with the Loan. If any Borrower would like to receive a copy, such Borrower must contact Lender at the address set forth herein and request a copy of the appraisal report. Lender must receive such a request from a Borrower no later than NINETY (90) days after the Effective Date.

 

33. Regulation B—Notice of Joint Intent. If Borrowers are more than one Person, Federal Regulation B (Equal Credit Opportunity Act) requires Lender to obtain evidence of each Borrower’s intention to apply for joint credit. Each Borrower’s signature below shall evidence such intent. Each Borrower’s intent shall apply to future related extensions of joint credit and joint guaranty.

 

34. Notice of Balloon Payment. At maturity (whether by acceleration or otherwise), Borrowers must repay the entire principal balance of Loan and unpaid interest then due. Lender is under no obligation to refinance the outstanding principal balance of Loan (if any) at that time. Borrowers will, therefore, be required to make payment out of other assets Borrowers may own; or Borrowers will have to find a lender willing to lend Borrowers the money at prevailing market rates, which may be higher than the interest rate on the outstanding principal balance of the Loan. If any Guarantor has guaranteed payment of the Loan, such Guarantor may be required to perform pursuant to the provisions of the Guaranty.

 

35. Additional Interest Provision. It is expressly stipulated and agreed to be the intent of Borrowers and Lender at all times to comply strictly with the applicable law governing the maximum rate or amount of interest payable on the indebtedness evidenced by any Note, any Loan Document, and the Related Indebtedness (or applicable United States federal law to the extent that it permits Lender to contract for, charge, take, reserve or receive a greater amount of interest than under applicable law). If the applicable law is ever judicially interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or received pursuant to any Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Lender related to the transaction or transactions that are the subject matter of the Loan Documents, (b) contracted for, charged, taken, reserved or received by reason of Lender’s exercise of the option to accelerate the maturity of any Note and/or any and all indebtedness paid or payable by Borrowers to Lender pursuant to any Loan Document other than any Note (such other indebtedness being referred to in this Section as the “Related Indebtedness”), or (c) Borrowers will have paid or Lender will have received by reason of any voluntary prepayment by Borrowers of any Note and/or the Related Indebtedness, then it is Borrowers’ and Lender’s express intent that all amounts charged in excess of the Maximum Rate shall be automatically canceled, ab initio, and all amounts in excess of the Maximum Rate theretofore collected by Lender shall be credited on the principal balance of any Note and/or the Related Indebtedness (or, if any Note and all Related Indebtedness have been or would thereby be paid in full, refunded to Borrowers), and the provisions of any Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if any Note or Related Indebtedness has been paid in full before the end of the stated term thereof, then Borrowers and Lender agree that Lender shall, with reasonable promptness after Lender discovers or is advised by Borrowers that interest was received in an amount in excess of the Maximum Rate, either refund such excess interest to Borrowers and/or credit such excess interest against such Note and/or any Related Indebtedness then owing by Borrowers to Lender. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of Lender to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration.

 

 

36. Dealing with Agent. Pursuant to the terms of an Agent Agreement dated on or about the date hereof, each of Thermo and Aegis have appointed Agent to act for them as agent in connection with the Loan and this Agreement, and the relationship between Thermo and Aegis in regard to this Agreement and the Loan are set forth in such Agent Agreement. All liens, guarantees, DACAs, or other rights granted in favor of Agent or any one Lender, are granted to Agent or any one Lender for the ratable benefit of Thermo and Aegis. Notwithstanding any provision of this Agreement or the Note to the contrary, each reference to any right, power, discretion or other action of “Lender” under this Agreement, the Note or the other Loan Documents shall be held, taken or exercised only by Agent, acting on behalf of the Lenders collectively, and no such right, power or action shall be held, exercised by or taken by any Lender acting in its individual capacity.

 

37. Notice of Final Agreement. It is the intention of Borrowers, Guarantors and Lender that the following NOTICE OF FINAL AGREEMENT be incorporated by reference into each of the Loan Documents (as the same may be amended, modified or restated from time to time). Borrowers, Guarantors and Lender warrant and represent that the entire agreement made and existing by or among Borrowers, Guarantors and Lender with respect to the Loan is and shall be contained within the Loan Documents, and that no agreements or promises exist or shall exist by or among, Borrowers, Guarantors and Lender that are not reflected in the Loan Documents. By execution and delivery of this Agreement, Borrowers and Guarantors acknowledge that Borrowers and Guarantors have received a copy of this NOTICE OF FINAL AGREEMENT.

 

 

NOTICE OF FINAL AGREEMENT

 

THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES, AND THE SAME MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

 

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

 

 

AGREED as of the Effective Date.

 

LENDER:			ADDRESS:
THERMO COMMUNICATIONS FUNDING LLC			101 W. Robert E. Lee, Ste. 302
			New Orleans, LA 70124
By:	/s/ Seth Block
Name:	Seth Block
Title:	Executive Vice President
AEGIS VENTURE FUND, LLC			3401 West Cypress Street, Suite 201
			Tampa, FL 33607
By:	/s/ Michael Fussell
Name:	Michael Fussell
Title:	President
AGENT:
THERMO COMMUNICATIONS FUNDING LLC			101 W. Robert E. Lee, Ste. 302
			New Orleans, LA 70124
By:	/s/ Seth Block
Name:	Seth Block
Title:	Executive Vice President
BORROWERS:			ADDRESS:
VERVE CLOUD, INC. (Nevada)			8023 Vantage Drive, Suite 606
VERVE CLOUD, INC. (Texas)			San Antonio, Texas 78230
NEXOGY, INC.
NEXT LEVEL INTERNET, INC.
T3 COMMUNICATIONS, INC.
By:	/s/ Antonio Estrada
Name:	Antonio Estrada
Title:	Chief Financial Officer

 

 

SCHEDULE I
TO
LOAN AND SECURITY AGREEMENT

 

Location of Collateral

 

 

 

Intellectual Property

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE II
TO
LOAN AND SECURITY AGREEMENT

 

Existing Liens

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE III
TO
LOAN AND SECURITY AGREEMENT

 

Other Debt

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE IV
TO
LOAN AND SECURITY AGREEMENT

 

Outstanding Loans

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT A
TO
LOAN AND SECURITY AGREEMENT

 

ADVANCE REQUEST FORM

 

RE:

Loan and Security Agreement (as amended, modified or restated from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings given thereto in the Agreement), dated as of February 2, 2024, among (a) AEGIS VENTURE FUND, LLC, a Florida limited liability company, (b) THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company, (c) THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company, as agent, (d) VERVE CLOUD, INC., a Nevada corporation, (e) VERVE CLOUD, INC., a Texas corporation, (f) NEXOGY, INC., a Florida corporation, (g) T3 COMMUNICATIONS, INC., a Florida corporation, (h) NEXT LEVEL INTERNET, INC., a California corporation, and (i) each Person identified as a Guarantor on the signature page thereto.

 

DATE:
CREDIT FACILITY:		$
ADVANCES OUTSTANDING:		$
THE LESSER OF:
BORROWING BASE AVAILABILITY		$
UNDRAWN AMOUNT OF CREDIT FACILITY		$
AMOUNT OF REQUESTED ADVANCE		$

 

THE UNDERSIGNED HEREBY CERTIFIES that (a) no Default or event which would reasonably be expected to have a Material Adverse Effect shall have occurred and be continuing, or would result from or after giving effect to such Advance; and (b) all of the representations and warranties contained in the Loan Documents shall be true and correct in all material respects on and as of the date of such Advance (or, if any such representation and warranty speaks to an earlier date, such earlier date) with the same force and effect as if such representations and warranties had been made on and as of such date.

 

BORROWERS:		ADDRESS:
VERVE CLOUD, INC.  (Nevada)		8023 Vantage Drive, Suite 606
VERVE CLOUD, INC.  (Texas)		San Antonio, Texas 78230
NEXOGY, INC.
NEXT LEVEL INTERNET, INC.
T3 COMMUNICATIONS, INC.

 

By:
Name:
Title:

 

 

EXHIBIT B
TO
LOAN AND SECURITY AGREEMENT

 

BORROWING BASE CERTIFICATE

 

DATE: ______________________

 

RE:

Loan and Security Agreement (as amended, modified or restated from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings given thereto in the Agreement), dated as of February 2, 2024, among (a) AEGIS VENTURE FUND, LLC, a Florida limited liability company, and THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company, as lenders (collectively, “Lender”), (b) THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company, as agent, (c) VERVE CLOUD, INC., a Nevada corporation (“Parent”), (d) VERVE CLOUD, INC., a Texas corporation (“Verve Cloud Texas”), (e) NEXOGY, INC., a Florida corporation (“Nexogy”), (f) T3 Communications, Inc., a Florida corporation (“T3 Communications”), (g) NEXT LEVEL INTERNET, INC., a California corporation (“Next Level” and, together with Parent, Verve Cloud Texas, Nexogy, T3 Communications and any other entity that joins the Agreement as a “Borrower”, collectively, the “Borrowers” and, each, a “Borrower”), and (h) each Person identified as a Guarantor on the signature page thereto.

 

1. Certification. Responsible Officer hereby certifies to Lender on behalf of each Borrower, and not in the personally capacity of such Borrower, as of the date hereof that (a) such Responsible Officer is the Chief Financial Officer of each Borrower, and that, as such, such Responsible Officer is authorized to execute and deliver this Certificate to Lender on behalf of each Borrower, (b) no Default has occurred and is continuing, (c) a review of the activities of Borrower during period subject to this Borrowing Base Certificate has been made under the supervision of Responsible Officer with a view to determining the amount of the current Borrowing Base, (d) the accounts and inventory included in the Borrowing Base below meet all conditions to qualify for inclusion therein as set forth in the Agreement, and all representations and warranties set forth in the Agreement with respect thereto are true and correct in all material respects, and (e) the information set forth below hereto is true and correct as of the Subject Date [, in each case except as set forth below:

 

[List Exceptions, if any]].

 

2. Borrowing Base. Borrower represents to Lender that the following information regarding the Borrowing Base is true and correct as of ______________ (the “Subject Date”):

 

INSERT BORROWING BASE

 

3. Binding Nature. The Loan Documents are acknowledged, ratified, confirmed, and agreed by each Borrower to be valid, subsisting, and binding obligations. Each Borrower agrees that there is no right to set off or defense to payment of the Indebtedness.

 

 

EXECUTED as of the date first written above.

 

BORROWERS:		ADDRESS:
VERVE CLOUD, INC.  (Nevada)		8023 Vantage Drive, Suite 606
VERVE CLOUD, INC.  (Texas)		San Antonio, Texas 78230
NEXOGY, INC.
NEXT LEVEL INTERNET, INC.
T3 COMMUNICATIONS, INC.

 

By:
Name:	Antonio Estrada
Title:	Chief Financial Officer

 

 

EXHIBIT C
TO
LOAN AND SECURITY AGREEMENT

 

COMPLIANCE CERTIFICATE

 

DATE: ______________________

 

RE:

Loan and Security Agreement (as amended, modified or restated from time to time, the “Agreement”; capitalized terms used but not defined herein shall have the meanings given thereto in the Agreement), dated as of February 2, 2024, among (a) AEGIS VENTURE FUND, LLC, a Florida limited liability company, and THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company, as lenders (collectively, “Lender”), (b) THERMO COMMUNICATIONS FUNDING, LLC, a Delaware limited liability company, as agent, (c) VERVE CLOUD, INC., a Nevada corporation (“Parent”), (d) VERVE CLOUD, INC., a Texas corporation (“Verve Cloud Texas”), (e) NEXOGY, INC., a Florida corporation (“Nexogy”), (f) T3 Communications, Inc., a Florida corporation (“T3 Communications”), (g) NEXT LEVEL INTERNET, INC., a California corporation (“Next Level” and, together with Parent, Verve Cloud Texas, Nexogy, T3 Communications and any other entity that joins the Agreement as a “Borrower”, collectively, the “Borrowers” and, each, a “Borrower”), and (h) each Person identified as a Guarantor on the signature page thereto.

 

Check One	Section Reference	Subject Period
	Section 9(a) –Interim Financial Statements
	Section 9(b) –Annual Financial Statements

 

This Compliance Certificate is delivered under the Agreement. Capitalized terms used in this Compliance Certificate shall, unless otherwise indicated, have the meanings set forth in the Agreement. Responsible Officer hereby certifies to Lender as of the date hereof that: (a) such Responsible Officer is the Chief Financial Officer of each Borrower, and that, as such, Responsible Officer is authorized to execute and deliver this Compliance Certificate to Lender on behalf of each Borrower; (b) such Responsible Officer has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under such Responsible Officer’s supervision, a detailed review of the transactions and condition (financial or otherwise) of each Borrower during the Subject Period; (c) during the Subject Period, no Default occurred and, as of the date hereof, no Default exists or has occurred which has not been cured or waived by Lender (except as may be set forth on Exhibit I attached hereto); (d) the financial statements of Borrower attached to this Compliance Certificate were prepared in accordance with GAAP, and present, on a consolidated basis, fairly and accurately the financial condition and results of operations of the Borrowers and their Subsidiaries as of the end of and for the Subject Period; and (e) the financial covenant analyses as set forth on Exhibit II and information set forth below are true and accurate on and as of the date of this Compliance Certificate.

 

BORROWERS:		ADDRESS:
VERVE CLOUD, INC.  (Nevada)		8023 Vantage Drive, Suite 606
VERVE CLOUD, INC.  (Texas)		San Antonio, Texas 78230
NEXOGY, INC.
NEXT LEVEL INTERNET, INC.
T3 COMMUNICATIONS, INC.

 

By:
Name:	Antonio Estrada
Title:	Chief Financial Officer

 

 

EXHIBIT I

 

DEFAULTS

 

 

 

 

 

 

 

 

 

 

EXHIBIT II

 

FINANCIAL COVENANT